Hilder, Gary Anthony v Sydney Trains - [2019] FWC 8412

1

Fair Work Act 2009 
s.394 - Application for unfair dismissal remedy

Mr Gary Hilder

v

Sydney Trains
(U2019/5109)

DEPUTY PRESIDENT SAMS SYDNEY, 12 DECEMBER 2019

Application for an unfair dismissal remedy – Customer Service Attendant for Sydney Trains –
employee dismissed for failing a random drug detection test for cannabis – serious 
misconduct alleged – investigation of various breaches of Sydney Trains’ policies and 
procedures – whether valid reason for dismissal – applicant’s responses demonstrate genuine 
contrition, remorse and deep regret – single incident of smoking one ‘joint’ – not habitual 
drug user – otherwise unblemished service of six years – ‘zero tolerance’ approach to drugs 
and alcohol in the workplace – policy not ‘zero tolerance’ – disciplinary policy inconsistent 
with ‘zero tolerance’ approach – no consideration of personal or mitigating circumstances –
harshness not considered – selective consistency of policy – failure to inform employees that 
any level of detected illicit substance will result in dismissal – policies confusing, misleading 
and inconsistent – no valid reason for dismissal in all the circumstances – even if there was a 
valid reason, dismissal still ‘harsh’ – personal and financial circumstances considered –
evidence of loss of trust and confidence not persuasive – reinstatement appropriate remedy –
ancillary orders for continuity of service and payment of 50% of lost remuneration, less 
remuneration earnt – orders to be made in the event of any disagreement as to final orders.

[1] On 5 October 2018, Mr Gary Hilder, a 64-year-old Customer Service Attendant 

(‘CSA’) employed by Sydney Trains and located at Clarendon Station, was subject to a 

random urine drug test. He initially returned a positive reading (above 50ug/L) for cannabis 

metabolites. A secondary test confirmed a THCCOOH level of 78 ug/L in circumstances 

where the cut-off is 15 ug/L. On 9 October 2018, Mr Hilder was suspended on pay pending an 

investigation of his conduct. 

[2019] FWC 8412 [Note: a correction has been issued to this document]
[Note: An appeal pursuant to s.604 (C2019/7774) was lodged against this 
decision - refer to Full Bench decision dated 13 March 2020 [[2020] 
FWCFB 1373] for result of appeal.]

DECISION


E AUSTRALIA FairWork Commission








https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb1373.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb1373.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc8412_pr715280.htm


[2019] FWC 8412

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[2] On 6 November 2018, Mr Hilder was notified of a formal investigation of his possible 

breaches of Sydney Trains’ Code of Conduct and Drugs and Alcohol Policy (the ‘Policy’). 

The letter, essentially a ‘Show Cause’, reads as follows:

‘Dear Mr Hilder

Notification of Misconduct Allegation and Request to Respond in Writing

I am writing to inform you that the Workplace Conduct and Investigations Unit 
(WCIU) is conducting a formal investigation into the possibility that you have 
breached the Transport Code of Conduct (Our Code of Conduct) and the Sydney 
Trains Drugs and Alcohol Policy.

Ms Barbara Iordanidis, Human Resources Consultant is conducting the investigation.

The allegation is as follows:

On Friday 5 October 2018, while on duty as a Customer Service Attendant for Sydney 
Trains, you returned a positive drug test reading for THCCOOH 78ug/L (confirmation 
cut off 15ug/L).

Particulars:

 On Friday 5 October 2018, you were randomly selected for a drug and alcohol 
test at Clarendon Station.

 An initial drug test returned a positive reading for Cannabis Metabolites.
 A second test was then undertaken. This test result confirmed the finding of 

THCCOOH 78ug/L (confirmation cut off 15ug/L).

If proven, this conduct may represent a breach of the Sydney Trains Drugs and 
Alcohol Policy and the following sections of Our Code of Conduct –

 Section 3 – Staff Responsibilities
 Section 9 – Workplace Health and Safety
 Section 10 – Drugs and Alcohol

I have enclosed copies of the above documents for your reference in addition to a copy 
of the Sydney Trains Discipline Procedure.

The purpose of this letter is to provide you with an opportunity to respond to the 
allegation in writing. You are requested to provide your written response within 
fourteen (14) calendar days from receipt of this letter.

Please email your written response to:

Ms Barbara Iordanidis
[email address provided]








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Your written response may include your version of events, provide an explanation 
and/or outline any mitigating circumstances with regard to the matter under 
investigation. If you do not respond in writing to the alleged breach by the due date, 
the investigation will continue in absence of any response made by you.

Your written response may include your version of events, provide an explanation 
and/or outline any mitigating circumstances with regard to the matter under 
investigation. If you do not respond in writing to the alleged breach by the due date, 
the investigation will continue in absence of any response made by you.

You may bring a support person to the interview. A support person may be a union or 
legal representative. It is not appropriate to have a support person who has been 
involved in the matter, or whose availability may lead to a delay in the investigation. 
Your support person cannot take an active part in the interview and you will be 
required to answer the questions yourself.

Possible Outcomes

After conducting any relevant interviews and considering all available information, an 
Investigation Report will be prepared. If a breach, or breaches, of Our Code of 
Conduct or any Sydney Trains Policy has occurred, the Investigation Report may be 
sent to the Disciplinary Review Panel (DRP).

The DRP will make a preliminary recommendation regarding any appropriate 
disciplinary action in response to the breach/s. Disciplinary action may include one or 
more of the following:

 caution or reprimand
 fine of an amount not exceeding $100
 reduction in position, rank or grade and pay
 suspension from duty without pay
 dismissal (with or without notice)

Independent of any disciplinary action, Sydney Trains may take appropriate 
management action including transfer, secondment, training, removal from particular 
duties (including acting in higher grades or secondments), counselling (sic), mentoring 
or other measures in the interests of Sydney Trains.

Confidentiality

Given the sensitive nature of the allegation, and to protect you and others who may 
become involved, you must not discuss the investigation with anyone other than your 
nominated support person(s), representative, personal advisors or immediate family 
members.

You are required to keep the details of the matters raised in this correspondence, and 
your response, confidential. This requirement also applies to your personal advisors 
and immediate family members.








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Any Sydney Trains staff member found to have breached confidentiality requirements 
may have disciplinary action taken against them. If you believe confidentiality has 
been breached, please advise me immediately.

Integrity of Information

Where allegations are made, TfNSW expects staff members to raise allegations in 
good faith and that information provided in the investigation is not false or misleading. 
Disciplinary action may be taken against those found to have provided false or 
misleading information or made malicious allegations.

Victimisation

Victimising or retaliating against a person who has assisted with, or is involved in an 
investigation will not be tolerated. Any finding of victimisation or retaliation against 
anyone who is involved in the investigation may result in disciplinary action being 
taken.

All participants of the investigation process have been advised of this. You should 
immediately contact me if you experience any difficulties in this regard.

If you or your family need assistance at any time during the investigation, you are 
encouraged to contact the Employee Assistance Program (EAP) on [phone number 
provided]. The EAP provides confidential and professional assistance to employees 
and their family members.

If you have any questions in relation to this matter, please contact Barbara Iordanidis 
on [phone number provided].

Yours sincerely

Amanda Sharwood’

With the assistance of his Union, the Australian Rail, Tram and Bus Industry Union (‘RTBU’ 

or the ‘Union’), Mr Hilder responded to the investigation on 20 November 2018. 

[3] On 15 January 2019, Mr Hilder received the investigation’s preliminary outcome of a 

finding of dismissal. The Union submitted a response to Sydney Trains’ Disciplinary Review 

Panel (‘DRP’) on 28 January 2019. On 13 February 2019, Mr Hilder received notification of 

the review which was unsuccessful. A further review submission was made to Transport for 

NSW (‘TfNSW’) on 25 February 2019 and on 26 April 2019, this review confirmed Mr 

Hilder’s dismissal. 








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[4] On 6 May 2019, the Union filed an application on Mr Hilder’s behalf, pursuant to s 

394 of the Fair Work Act 2009 (the ‘Act’) in which he seeks reinstatement and associated 

orders for his alleged unfair dismissal. Mr Hilder had worked for Sydney Trains for six years 

and has an otherwise unblemished employment record. In the Form F2, the Union put that: 

‘8. Mr. Hilder acknowledges he has failed a drug and alcohol test. 
9. Mr. Hilder has been completely honest through the entire investigation and openly 
admitted he made a human error. 
10. A decision of dismissal is disproportionately harsh for Mr. Hilder because: 

 Mr. Hilder’s Age this being sixty-three (63) years old 
 Mr. Hilder’s ability to gain new employment are significantly limited 
 Cause great instability by placing Mr. Hilder and his family into a 

precarious financial position. Unable to maintain the family’s mortgage and 
provide financial support for his family. 

 Mr. Hilder has very limited superannuation. 

Sydney Trains are not taking into consideration of their Just Culture Policy 
(Attachment 4d) – Where it’s a culture that recognises normal human error does occur 
and it’s about It is about moving from a disciplinary system that prohibits human error 
to one that supports learning from mistakes while maintaining accountability for one’s 
behavioural choices. 

11. Mr. Hilder has been extremely remorseful and would be willing to accept any 
alternative sanction to dismissal.’

[5] In its reply Form F3, Sydney Trains maintained Mr Hilder’s dismissal was not unfair. 

Sydney Trains has a ‘zero tolerance’ approach to drugs and alcohol in the workplace. Mr 

Hilder was aware of the relevant policies through training in 2012, 2014 and 2015.  As a 

Category 3 Rail Safety Employee, he was required to hold a rail safety card. This was 

immediately removed when he was found to have tested positive to an illicit substance on 5 

October 2018. Mr Hilder was offered procedural fairness and the Union had submitted a 

number of responses on his behalf. Mitigating factors such as his age, performance and length 

of service were taken into account, but they did not outweigh the seriousness of his 

misconduct and the grounds for his dismissal. 

[6] In accordance with my usual procedure, I convened a conference of the parties on 27 

June 2019, to explore whether settlement of the application could be reached. This was 

unsuccessful and the matter proceeded to hearing on 8 August 2019. Mr T Warnes

represented the Union and Mr Hilder. Ms M Gaven of Counsel appeared with Ms S Moten, 

Solicitor, Lander and Rodgers, on behalf of the respondent, with permission being granted for 








[2019] FWC 8412

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Sydney Trains to be represented by a lawyer. I note the Union did not object to this course. At 

the commencement of proceedings, further attempts were made to settle the matter, but 

ultimately this was not achieved, and the hearing proceeded.

THE EVIDENCE

Relevant policies and other documents

[7] I set out below a number of extracts from documents tendered in this case.

[8] Mr Hilder’s letter of appointment of 28 September 2012 from Sydney Trains’ 

predecessor entity Railcorp states, inter alia, the following: 

‘Railcorp is committed to protecting the health and safety of all employees, customers 
and members of the public by minimising accidents, incidents or injuries arising from 
the misuse of drugs and alcohol. This commitment involves maintaining an alcohol 
and drug free workforce whilst on duty.

All employees must be drug and alcohol free whilst at work. There is legislation 
policy in place which allows Railcorp to undertake random drug and alcohol testing, 
on its employees. You will therefore be required to undertake random drug and 
alcohol testing in accordance with our policies.’

[9] Sydney Trains’ Code of Conduct sets out the following:

‘You are responsible for complying with your agency’s drug and alcohol policy and/or 
relevant legislation. This includes prescribed, over-the-counter and alternative 
medication which may negatively affect your ability to perform your duties, or pose a 
risk to your safety or that of others. Returning a positive drug or alcohol test, or 
tampering with or refusing a test, may be an offence or contravene agency policies/ 
procedures and may result in disciplinary action. You should inform your manager 
where you have reason to suspect anyone working for a transport agency may be 
abusing or under the influence of drugs or alcohol. You are encouraged to disclose if 
you have a drug or alcohol dependency, so appropriate action can be taken to provide 
relevant support and maintain a safe workplace. Refer to your agency’s drug and 
alcohol policy for disclosure advice. No alcohol or prohibited drugs are permitted to be 
consumed on agency premises at any time. You may only store alcohol in the 
workplace or sell alcohol to customers when required to do so as part of your official 
duties. For instance, NSW Trains staff members may be expected to sell alcohol as 
part of their duties.’

[10] The specific Drugs and Alcohol Policy provides as follows:








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‘Policy Statement 

To achieve this vision, we:

 Have a random drug and alcohol testing program. 
 Have a test rating showing zero concentration of alcohol in the blood. 
 Have a test rating less than the cut off level stipulated in Australia / New Zealand 

standard 4398 (AS/NZS 4308) for tolerances of drugs. 
 Are not permitted to have or sell alcohol or prohibited drugs in the workplace 
 Must not be in possession of any item or piece of equipment for the use or 

administration of a prohibited drug at any Sydney Trains’ workplace. 

The Sydney Trains drug and alcohol program is consistent with our corporate values 
and behaviours. Provide support for workers to remain drug and alcohol free while at 
work. 

Measures to reduce safety risk, absenteeism and other affects in the workplace, do the 
consumption of drugs and alcohol, will include the opportunity to self-identify and 
seek help, rehabilitation programmes in education on drug and alcohol related issues.’

[11] TfNSW has a Managing Conduct and Discipline Policy covering Sydney Trains and 

other transport agencies, which at page four provides examples of inappropriate conduct as 

follows: 

‘Examples of Inappropriate Conduct may include, but are not limited to:

 wilful refusal to carry out a lawful and reasonable instruction;
 conduct that causes a risk to a person’s health and safety, organisational 

reputation and/or
 business;
 victimisation and/or reprisal action against another person, including interfering 

with
 Disciplinary Proceedings;
 corrupt conduct;
 unauthorised release of confidential information;
 criminal conduct, theft, fraud and/or assault;
 being convicted of a Serious Criminal Offence; and/or
 any other breach of the Transport Code of Conduct or the Code of Ethics and 

Conduct for NSW government sector employees.’

[12] It also provides for remedial and disciplinary action such as:

‘Remedial action may include one or more of the following:








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 counseling (sic);
 training/development;
 monitoring the Staff member’s conduct and/or performance;
 implementing a performance improvement plan;
 issuing a warning (notification) to the Staff member that certain conduct is 

unacceptable or
 that the Staff member’s performance is not considered satisfactory;
 transferring the Staff member to another role that does not involve a reduction of 

salary or
 demotion to a lower role; and/or
 any other action of a similar nature.’

[13] Sydney Trains’ Disciplinary Procedures sets out the following definitions:

‘For the purpose of this Procedure:

At-risk behaviour - Unintentional risk-taking is when a person does something 
intentionally, but doesn’t appreciate the risk involved in their actions. Examples 
include:

 Taking shortcuts around rules and procedures
 Not wearing safety gear (PPE) the correct way.

Reckless behaviour - Intentional risk-taking is when a person acts in a way that 
purposely disregards the risk associated with their behaviour. Examples include:

 reporting to work under the influence of drugs or alcohol
 tampering with safety equipment
 falsely claiming extra hours than those worked
 covering up or not reporting a safety incident.

Unintentional error - When a person does something other than what they intended 
to do.’

[14] The Just Culture Framework Policy at para 5 says:

‘Under a Just Culture disciplinary action is ordinarily not the first response to an 
incident involving employees - a manager’s/supervisor’s first response is to openly and 
fairly assess the circumstances involved.

The Just Culture Framework describes the process that managers/supervisors should 
follow when conducting this assessment.

Unintentional error will usually not attract disciplinary action, as remedial action (such 
as coaching or performance development) may address the situation. For more 








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information on remedial action refer to the Performance and Conduct Improvement 
Procedure.

However, for reckless behaviour, and in some circumstances, for at-risk behaviour, 
disciplinary action may be taken.

This Discipline Procedure describes the process to be followed when it has been 
determined, as a result of an initial assessment, that reckless and/or at-risk behaviour 
may have occurred and disciplinary action may be the most appropriate response.’

[15] Under ‘Principles’ the following appears:

‘Each case decided on its own merit: While the disciplinary process will be applied in a 
consistent manner, the same misconduct or serious offence conviction will not always 
lead to the same outcome or disciplinary action. The circumstances of each case may 
be different and the relevance of the matter to the employee’s position may differ. 
Previous warnings or remedial action and an employee’s previous employment and 
service record may also be relevant to decisions about disciplinary process outcomes.’

[16] Information material distributed by Sydney Trains in the August 2016 Sydney Trains 

Weekly, contained the following: 

‘More than a staff member: making the right decision when it comes to drugs and 
alcohol 

Over the coming weeks you'll start to see posters going up in your area as a part of the 
new drug and alcohol campaign. These posters as a reminder to staff and controllers 
on the reasons why it's important that we stay safe.

One of the key drivers of this campaign is to highlight why it's important that Sydney 
Trains a drug and alcohol-free environment. You're one of the 9500 staff who is 
completed the target 0 program, you're the reasons why you personally stay safe -
perhaps is to take the dog for a walk, footy at the park with your mates or simply 
spending time with your family. So it's not just about making the right decisions when 
it comes to drugs and alcohol - being able to work safely in a space where work mates 
are doing the same. 

Keep an eye for the new posters, which are also available for download from the 
intranet. Let us Know what you think of the posters, as well as the main reason why 
you stay safe, and email [email address provided] to go into the draw to win one of six 
movie passes.’

Evidentiary case for Mr Hilder 








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[17] Mr Hilder said that over his period of employment with Sydney Trains prior to the 

incident, no issues had ever been raised regarding his performance or conduct. He had been 

drug and alcohol tested on several occasions and had always tested negative. 

[18] Mr Hilder described the circumstances leading to the positive drug test on 5 October 

2018. The day before, after bumping into an old friend he had not seen for years, his friend 

invited him to his house for a few beers and a yarn. His friend offered him a single marijuana 

cigarette (‘joint’). He believed it would not be a problem. Later that evening, he went home 

feeling no ill effects. He had dinner with his family and had an early night, as he had a 6:00am 

start at Clarendon Station. When he woke up the next morning, he did not feel any ill effects 

and was confident he could perform his duties.

[19] Mr Hilder said he was randomly urine tested at around 7:00am. He continued his 

customer service and cleaning duties that day and worked on the following two days at 

Schofields Station, without feeling impaired or unwell. He was rostered off for five days from 

8 October 2018. On 10 October 2018, he was advised of the positive result of 78 ug/L and 

was directed to return his safety pass and mobile phone and was stood down. Later that day, 

Mr Hilder attended a local doctor and requested a urine test for cannabis which was tested by 

Austech Medical Laboratories. The pathology report was negative, with no drugs detected, 

including cocaine, amphetamines, benzodiazepines and cannabinoids. Mr Hilder then set out 

the investigation process and his submissions to Sydney Trains’ Disciplinary Review Panel 

and the TfNSW appeal. Mr Hilder stated that this was the only occasion that he had smoked 

any marijuana in 30 years. It was a ‘one off’ incident, which he deeply regrets.

[20] Mr Hilder met with his doctor on 25 July 2019, and received a letter from him which 

said:

‘Mr Gary Hilder has been a patient of mine for over 6 years and has never shown any 
signs of habitual drug use. 

Further the negative results of the pathology test, urinary drug screen was negative 
after the positive test supports Mr Hilder’s assertion that he was not a habitual user of 
cannabis.. (sic) 

Yours sincerely








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Dr S Lagaida’

[21] Mr Hilder described his personal circumstances and how much he values his job with 

Sydney Trains. He is 64 years old, paying off a mortgage and with one dependent child living 

at home with him and his wife. He has very little in anticipated superannuation after 

previously working as a taxi driver for seven years and paying his own superannuation. Mr 

Hilder is finding it difficult to find alternative employment, despite numerous applications, 

with little or no response. These job applications were annexed to his statement. 

[22] Mr Hilder acknowledged his mistake and said he had been open and honest throughout 

the process. He claimed he was not impaired and was not performing safe working duties at 

the time. He was willing to participate in any retraining or coaching and would accept 

alternative punitive measures in response to his conduct. He truly values his employment with 

Sydney Trains, holds no animosity toward the organisation and respects his managers. He 

referred to his clean work record and comments when he received a Customer Excellence 

Award in 2016. At the time, in the Sydney Trains Platform newsletter, it was said: 

‘Gary is in customers but by his colleagues across Sydney Trains for customer centric 
approach and willingness to help stop Gary was nominated by Alan Watson, station 
manager (SCM), play strong work ethic and for driving the behaviours we want to see 
from our staff in line with the Customer Service Model. Alan delivers glowing 
endorsement, saying ‘Gary is a machine for customer service, always going out of his 
way to provide customers an exceptional service’. Gary has received several 
compliments for his work at a variety of stations across the North West region. one 
customer so impressed that he called the one three one 500 to show his appreciation –
‘Caller compliment staff member on platform 1/2 at Penrith station who helped him at 
to Earlwood. He advised to him to take the Blue Mountains Line train to get to 
Strathfield in time for his bus, as he was running late. Cola states he went out of his 
way to help. Another customer called 131 500 and said “The gentleman to Penrith 
station is very kind very helpful and he is absolutely wonderful”’

[23] In response to Mr Walsh’s statement dealing with his duties and responsibilities as a 

Customer Service Attendant, it was Mr Hilder’s belief that he was not impaired at any time on 

5 October 2018 and was able to competently perform his duties, including responding to 

emergency situations. He continued to be able to perform his duties, without incident, after he 

was randomly tested. Further, he said that if any issue had arisen with the level crossing and 

the boom gate at Clarendon Station, his responsibility was only to contact the Station Duty 

Manager and advise of the issue. He was not qualified to operate the level crossing. 








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[24] In cross examination, Mr Hilder agreed he was familiar with Sydney Trains’ Drugs 

and Alcohol Policy and had undergone random testing on about five separate occasions, 

without an issue. He accepted the Policy was intended to serve as a deterrent to employees 

being under the influence of drugs or alcohol at work. Mr Hilder acknowledged having 

attended number of relevant training sessions, but at no time had it been said by the employer 

that a positive test finding would result in an automatic dismissal.

[25] As he was the only employee at Clarendon Station on 5 October 2018, Mr Hilder 

agreed he had a responsibility for communicating information about moving trains, and any 

safety concerns of passengers. This was a core part of his training. However, he reiterated that 

he did not consider himself to be impaired in any way on the day. Mr Hilder said that he had 

reviewed Mr Walsh’s evidence as to the uniform outcome for employees who tested positive 

to drugs or alcohol (dismissal), accepted he had not been ‘singled out’ and agreed that the 

Policy had been consistently applied. Nevertheless, he believed each case depends on its own 

circumstances.

[26] Mr Hilder acknowledged that Sydney Trains has a ‘zero tolerance’ approach to drugs 

and alcohol, but nowhere does it state that dismissal is the automatic outcome. Mr Hilder was 

asked why he did not mention having smoked marijuana before he was tested. He said that as 

he did not believe he was impaired in any way, he did not expect such a small amount of 

marijuana would influence the test. However, he agreed he was asked if he was taking any 

prescribed medication. Mr Hilder acknowledged his confirmatory test recorded five times 

(78ug/L) the acceptable cut off level of 15ug/L. He conceded that Sydney Trains has no way 

of testing a person’s impairment levels. 

Ms Helen Bellette 

[27] Ms Bellette has been a union organiser for 15 years; the last 8 years with the RTBU. 

Ms Bellette’s evidence went to Sydney Trains’ submission as to the claimed consistency of 

outcomes for employees who test positive for drugs or alcohol. Ms Bellette was not required 

for cross examination.








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[28] Ms Bellette provided two examples of Union members who had not been dismissed 

for breaches of Sydney Trains’ Drugs and Alcohol Policy. For privacy reasons, I shall not 

identify them. Both of these employees were dismissed after having previously failed a drug 

test and an alcohol test respectively. In the first case, the employee had tested positive to 

cannabis on 6 October 2013 and for a second time on 9 July 2015. In the second case, the 

employee had previously tested positive to alcohol but was not dismissed, and then failed 

another alcohol test in 2019 and was dismissed.

Evidentiary case for Sydney Trains

Mr Christopher Walsh 

[29] Mr Walsh is the acting Deputy Executive Director of Train Crewing (Sector 1) for 

Sydney Trains. He provided three witness statements in the proceeding, which I summarise 

below.

[30] Mr Walsh stated that Sydney Trains takes a ‘zero tolerance’ approach to prohibited 

drugs and alcohol in the workplace. He annexed to his first statement copies of the relevant 

policies and Code of Conduct relevant to this matter which I have set out earlier and which I 

will not repeat here. Mr Walsh also annexed Mr Hilder’s letter of appointment (28 September 

2012) referring to the relevant policies and a requirement that employees undertake random 

drug and alcohol testing; Mr Hilder’s training history; copies of posters and other materials of 

the ‘Target Zero’ program and Mr Hilder’s position description (‘PD’). Mr Walsh described 

Mr Hilder’s responsibilities as including: 

‘(a) providing information to customers about train services;
(b) giving right of ways to trains to dispatch in a prompt and safe manner;
(c) implementing evacuation procedures in the case of an emergency; and 
(d) maintaining the effective operation of station premises and surrounds where 

applicable.’

[31] Mr Walsh identified Clarendon Station as a single person CSA location. As the only 

person rostered on at the time, Mr Hilder was required to respond to any safety issues 

involving sick or injured customers and emergencies. As Clarendon Station has a level 

crossing and boom gate, this could have involved Mr Hilder communicating any difficulties 








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with the boom gate or flashing lights to the Rail Operations Centre and the Signal Box and 

may involve contacting Police or arranging alternative transport for customers. 

[32] Mr Walsh attended the DRP meeting on 19 December 2018 which considered 

Mr Hilder’s conduct and any disciplinary action to be taken. After considering the drug test 

results and the Union’s responses on Mr Hilder’s behalf, Mr Walsh concluded that the 

appropriate disciplinary outcome should be dismissal. He claimed to have based his decision 

on the following important matters:

‘(a) it was established that Mr Hilder had returned a positive drug test reading to 
THCCOOH above the stipulated cut-off level for tolerance of THCCOOH 
while he was on duty on Friday, 5 October 2018. The Code of Conduct and the 
Drugs and Alcohol Policy prohibit test readings above cut-off levels for 
tolerances of drugs as stipulated by AS/NZS 4308 (which for THCCOOH 
is15ug/L);

(b) Mr Hilder was a rail safety worker and at the time that he returned the positive 
test reading and he was working in a high-risk environment, with risks such as 
moving Trains, sick or injured passengers, objects falling on the tracks and a 
level crossing’.

[33] Mr Walsh referred to the following response from Mr Hilder to the meeting he had 

with him, Mr Osikoya (Customer Area Manager) and Mr Hunter from the Union on 15 

January 2018:

‘The meeting on 15 January 2019, as you know, was also attended by my C.A.M 
Saheed Osikoya and Union Representative, Trent Hunter. In that meeting I asked Mr 
Walsh if my previous managers' opinion of my work was taken into consideration and 
you said "No." I further asked what was involved in the investigation and you 
explained that it only looked at the results of the drug test. You also stated that over the 
last 4 years the returning of a positive reading by anyone, meant dismissal. This is 
without consideration to other options as identified in Section 10 Discipline Penalties 
and does not look at the circumstances of each individual case."’

[34] Mr Walsh recorded his version of the above conversation as follows:

‘Mr Hilder: Did you take into consideration my previous manager's opinion of my 
work?

Mr Walsh: No because this is a misconduct matter involving a positive drug test.








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Mr Hilder: What was involved in the investigation?

Mr Walsh: The investigator's role is to determine if the allegation is substantiated or 
not. This meant looking at the results of the drug test and whether your conduct or 
positive reading to Cannabis was a breach of the drugs and alcohol policy. At the end 
of the day, you tested positive to drugs and you admitted to using the drugs. History 
has shown us that people who test positive tend to have had dismissal as an outcome 
but you do now have additional time to make any further submissions that you would 
like to have taken onto account as to why dismissal ought not be the final outcome.’

[35] Mr Walsh said he had not told Mr Hilder that he did not take his personal 

circumstances into account when deciding the disciplinary outcomes. As Mr Hilder had not 

raised any different matters in his response to the preliminary decision on 13 February 2019, 

he confirmed the final disciplinary decision. 

[36] Mr Walsh said he had ‘strong concerns’ about Mr Hilder being reinstated or re-

employed because: 

‘(a) Mr Hilder admitted to using an illicit drug the day before he was rostered to work 
and was subsequently tested;

(b) Mr Hilder was aware that his actions would be a breach of the Code of Conduct 
and the Drugs and Alcohol Policy;

(c) Mr HiIder's conduct breached an essential condition of his employment, namely 
that he attend work without alcohol or prohibited drugs in his system above the 
prescribed cut-off levels;

(d) Mr HiIder's risk-taking behaviour placed himself and our customers at an increased 
and unnecessary risk of harm;

(e) I lack the necessary trust that Mr Hilder will abide by Sydney Trains' policies and 
procedures and work safely;

(f) Mr Hilder's penalty was necessary and appropriate given his conduct; and

(g) the penalty will act as a deterrent to other employees and reinforce the message 
that Sydney Trains has a strong safety culture and will not tolerate employees 
attending work with drugs or alcohol above the prescribed cut-off levels in their 
system.’

[37] In a reply statement, Mr Walsh rejected Mr Hilder’s self-diagnosis of not being 

impaired and fully capable of performing his role as a CSA. This was because in 

circumstances where he had consumed an illicit drug, contrary to Sydney Trains’ ‘zero 








[2019] FWC 8412

16

tolerance’ approach, it was both a subjective and unqualified opinion, which was proven to be 

wrong. Sydney Trains could not allow employees to make their own decisions about 

acceptable impairment. This would create unnecessary risk of harm to their own safety and 

the safety of others, contrary to the standard acceptable levels and contrary to the Rail 

National Safety Law. 

[38] Mr Walsh disputed Mr Hilder’s evidence as to his continuing work after 5 October 

2018. The first time Sydney Trains was aware of confirmation of a positive reading to drugs 

was at 11:26 am on 8 October 2018. Mr Hilder was informed of the result on 8 October 2018 

(not 9 October 2018) and arrangements were made to meet him the next day to obtain his 

security pass. On 9 October 2018 (not 10 October 2018), Mr Hilder met Mr Osikoya, who 

gave him the letter of suspension.

[39] Mr Walsh responded to Mr Hilder’s evidence of his duties and responsibilities by 

adding that as a CSA3 Rail Safety Worker, he could have been called on, at any time, to 

perform such duties as:

‘a) Management or monitoring of passenger safety; 

b) Assisting passengers boarding or alighting trains;

c) relaying information or communications capable of controlling or effecting the 
movement of trains, for example affect a stop hand signal in the event an emergency 
such as a person falling on the tracks; and

d) Requesting a standing train protection to access the railway tracks and retrieve an 
item. Standing trains protection is a method of retrieving items from track using train 
as a form of protection behind where the item has fallen on the track so that the CSA 
can retrieve the item using long tongs or by going onto the tack when permitted.’

[40] Mr Walsh stated that by engaging in such reckless and risk-taking behaviour, by 

having consumed an illicit drug which was still present in his system, Mr Hilder demonstrated 

an incompatibility with ongoing employment with Sydney Trains. As to the boom gate issue, 

Mr Walsh said that Mr Hilder may not have responded, or communicated effectively with the 

appropriate authorities, if he had illicit drugs in his system. In reference to the Just Culture 

Policy, Mr Walsh claimed that Mr Hilder could not claim ‘human error’ in circumstances 

where:








[2019] FWC 8412

17

‘[he] consciously, deliberately and intentionally ingested an illicit substance the night 
before he was rostered to work with full knowledge and understanding that Sydney 
Trains has no tolerance for drugs and alcohol in the workplace. This was not a ‘normal 
human error’, it was reckless behaviour;

Engagement in such reckless behaviour is unacceptable under the Just Culture Policy;

[his] conduct is demonstrative of his lack of safety awareness and undermines Sydney 
Trains’ faith in Mr Hilder’s trustworthiness and his ability to comply with its policies 
and procedures. Mr Hilder’s reckless behaviour is not compatible with ongoing 
employment at Sydney Trains where safety is of paramount importance; and

[he] did not voluntarily disclose his consumption of cannabis at any time before he 
was advised of his drug test result, despite having opportunity to do so.’

Mr Walsh observed that an employee who self-identified a drug and alcohol problem, was 

unlikely to face disciplinary action.

[41] Mr Walsh criticised Ms Bellette’s evidence as to the two employees who had been 

given a second chance following breaches of the Drugs and Alcohol Policy. He noted that 

both incidents were some time ago - 2012 and 2015. Further, it was Mr Walsh’s 

understanding that in recent years, Sydney Trains has enforced a ‘zero tolerance’ approach. 

From at least 2017, all employees who returned a positive result to either drugs or alcohol, 

have been dismissed or allowed to resign, in some isolated cases. He provided a document 

which set out every outcome for an employee (24 names redacted) who tested positive to 

drugs or alcohol (or who refused to be tested or there was evidence of ‘tampering’). In every 

case, dismissal was the result ‘save for five examples of resignation; notwithstanding 

consideration of an employee's circumstances and response to the allegations …’ (my 

emphasis). It was Mr Walsh's understanding that this more stringent approach was consistent 

with Sydney Trains’ widely published and distributed campaigns, such as ‘Target Zero’. In 

fact, Mr Hilder had attended a ‘Target Zero’ Workshop on 9 October 2014. In answer to a 

question from me as to a low number of dismissals (two) in 2017, Mr Walsh produced a 

further statement and explained that due to the information being collected from different 

databases, the original information did not record all of the 2017 examples. The correct 

outcome for 2017 was eight, all of whom were dismissed.

[42] In cross examination, Mr Walsh said that he did not prepare the investigation report

and did not speak to Mr Hilder until he received the report. Mr Walsh acknowledged and 








[2019] FWC 8412

18

accepted, that Mr Hilder had been honest throughout the investigation and he had taken this 

into account. 

[43] Mr Walsh again described Mr Hilder’s conduct as reckless. He conceded that Mr 

Hilder could have smoked marijuana and turned up for work, but not test above the prescribed 

cut-off. However, before starting work, he could have declared there may have been an issue 

with his previous night’s marijuana smoking. He did not do so. However, Mr Walsh accepted 

that Mr Hilder was not a habitual marijuana user, with a problem. Mr Walsh agreed that the 

Policy does not include a capacity to admit smoking marijuana and wanting to ensure fitness, 

by requesting a test. He also agreed that Sydney Trains’ training does not include education 

about how long marijuana might stay in one’s system. However, he did not see this as Sydney 

Trains’ responsibility. He believed that if a person suspected they were unfit for work, they 

would call in sick.

[44] Mr Walsh did not accept Mr Hilder’s contrition or his acknowledgement of being 

‘stupid’. It was not an honest mistake. He believed that if someone ingested drugs the night 

before commencing work, they might suspect being tested as positive. Nevertheless, Mr 

Walsh accepted that in the absence of education, Mr Hilder might have assumed there was no 

impediment to him commencing work. 

[45] Mr Walsh accepted Ms Bellette's evidence of two employees who had been given a 

second chance after having tested positive to drugs or alcohol. However, these examples were 

some years ago. He reaffirmed that Sydney Trains now has a ‘zero tolerance’ approach. He 

agreed that Sydney Trains’ policies do not mention this approach and he could not recall if 

employees were ever told that from some point in 2017, if an employee tested positive to 

drugs, their employment would be terminated. However, programs such as ‘Target Zero’, the 

employees’ letters of appointment and ongoing training makes it abundantly clear that coming 

to work under the influence of alcohol or drugs is incompatible with working for Sydney 

Trains. 

[46] Mr Walsh offered his understanding of the testing process. He believed that the urine 

sample is not tested on site, and in this case, the test was not conducted at Laverty Pathology, 

until 8 October 2018. He agreed Mr Hilder continue to work from 5 October 2018 until 8 

October 2018. However, Sydney Trains was not informed of the result until 8 October 2018. 








[2019] FWC 8412

19

He conceded this was not an ideal process. The Policy is intended to act as both a deterrent 

and to ensure the safety of employees and customers. 

[47] Mr Walsh conceded that Mr Hilder was held in very high regard and had received 

several awards for good customer service. He took this, and other factors, such as his age, 

difficulty in finding alternative employment and his financial circumstances, into account. Mr 

Walsh could not recall if any employee had been given a second chance in the last two years. 

[48] In answer to questions from me, Mr Walsh accepted that an employee may still face 

disciplinary action if they had announced before knowing they were to be tested, that there 

may be a problem. However, if they had self-declared to a manager before a tester turned up, 

the matter would be treated differently. The employee would be sent home and offered 

support and rehabilitation if appropriate. At the end of Mr Walsh’s cross examination, I had 

this exchange with him:

‘Alright. A more broader topic which may be beyond your remit, I must say I have 
difficulty reconciling a proposition of zero tolerance when there is clearly zero 
tolerance for alcohol, but it's not for drugs. There's a 15 ug limit. It can't be zero 
tolerance, can it? It's a contradiction? ---I agree, your Honour, and throughout this 
process it is something that I also questioned as to the meaning within the organisation 
as to the term zero tolerance. Was that referring to zero being zero concentration of 
drugs and alcohol in your system, or zero tolerance meaning that if you test above 
what's prescribed it's dealt with in that zero tolerance.

Yes. If you have a query about it and I have a query about it wouldn't you think the 
employees might be a little unsure? I'd have to agree, your Honour.

I might say something about that in the judgment eventually, because it is not a zero 
tolerance policy, and I have had other employers that argue they have zero tolerance 
policies and one which was quoted as one of the authorities here where not only it 
wasn't zero tolerance, but if you tested over no matter how over you were you were 
sent home for three weeks to see if you could get rid of it, and that was in the mining 
industry. The person in question of course couldn't get rid of it in that time, but other 
people obviously would. It's not zero tolerance. Anyway I won't have a debate with 
you about that. Perhaps you might consider that proposition, Ms Gaven.’

[49] The relevance of this exchange will become apparent shortly. 

Further evidence 








[2019] FWC 8412

20

[50] At the conclusion of the hearing, I granted leave for Sydney Trains to put further 

evidence on the testing procedures and for the Union to be given an opportunity to respond. 

Sydney Trains filed an expert report from Professor Edward Ogden and further submissions 

as to the application of the law. The Union submitted that the materials sought to be admitted 

by Sydney Trains went much further than the leave granted by the Commission. It effectively 

meant that Sydney Trains was re-running its case, because it was unhappy with the way it was 

run after closing its evidentiary case. Accordingly, paras 4 to 17 of Sydney Trains’ closing 

submissions and paras 24 to 29 of Professor Ogden’s report were the only matters falling 

within the Commission’s grant of leave. I shall leave the submission question until later. 

However, I agree with the Union that Professor Ogden’s observations about alcohol testing 

are not relevant in this case. Nevertheless, his other evidence concerning cannabis use and 

testing is helpful and otherwise uncontroversial. I propose to annex the extracts from 

Professor Ogden’s report evidence to this decision as Annexure ‘A’. 

Submissions for Sydney Trains

[51] After setting out the background to the application (which is otherwise recorded 

earlier) and referring to the relevant statutory provisions, Solicitors for Sydney Trains argued 

why the applicant's dismissal was not unfair, according to s 387 of the Act. Further, it was 

submitted that it could not be disputed that Mr Hilder’s dismissal was for a valid reason; see: 

Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’) given that: 

(a) his conduct breached an essential condition of his employment and was 

inconsistent with Sydney Trains’ ‘zero tolerance’ approach to drugs and alcohol 

in the workplace; 

(b) his conduct demonstrated a lack of judgement and a willingness to engage in risk 

taking behaviour, without regard to the safety of himself and others and in an 

environment of a single person location; and 

(c) he was aware his conduct was in breach of the respondent’s Code of Conduct and 

Drugs and Alcohol Policy. 

[52] It was said that while the real issue in this case is whether the applicant's dismissal was 

‘harsh’ in all the circumstances, the seriousness of Mr Hilder’s conduct could not be 

outweighed by any considerations of ‘harshness’. It was pointed out that Mr Hilder had a 








[2019] FWC 8412

21

THCCOOH result of 78 ug/L where the cut-off level was 15 ug/L. However, Mr Hilder 

sought to set his own standard, in disregard for Sydney Trains’ ‘zero tolerance’ approach. He 

had acknowledged he had ‘no defence to the facts of the allegations’ and had admitted he 

smoked cannabis the night before commencing work. His deliberate and intentional breach 

constituted a valid reason for dismissal.

[53] Sydney Trains’ submission then dealt with each of the matters the Commission must 

take into account under s 387 of the Act. Mr Hilder was notified of the allegations in clear 

terms (s 387(b)), was provided an opportunity to respond and his Union did so (s 387(c)). 

Subsections 387(d)-(g) are not relevant in this matter. As to other matters (s 387 (h)), the 

submission dealt with Mr Hilder knowingly and intentionally breaching policies and the Code 

of Conduct. He had exercised poor judgment that put himself and others at risk. He took a 

‘gamble’ that he would not be randomly drug tested and failed to inform his manager there 

was a potential for a positive finding to a drug test. His conduct also put at risk the 

respondent’s reputation; see: Regulation 1.07 of the Fair Work Regulations 2009.  

[54] It was submitted that it is not relevant whether Mr Hilder was not impaired or that no 

safety incidents occurred. The relevant factor was that Mr Hilder breached the Policy by 

attending work, as a rail safety worker, with prohibited drugs in his system. It is not a 

question of the degree of impairment, but strict compliance with Sydney Trains’ ‘zero 

tolerance’ approach; see: Harbour City Ferries Pty Ltd v Toms [2014] FWCFB 6249 

(‘Toms’). While Sydney Trains is criticised for an alleged failure to take into account personal 

mitigating circumstances, Mr Walsh’s evidence makes clear that he did so and concluded that 

they did not outweigh Mr Hilder’s misconduct. 

[55] Notwithstanding its primary position that Mr Hilder’s dismissal was not unfair, 

Sydney Trains put that if the Commission was to find otherwise, reinstatement would be 

impractical; see: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 (‘Perkins’), for 

the following reasons: 

(a) Mr Hilder demonstrated an attitude that is inconsistent with the safety critical rail 

operations of Sydney Trains. He failed to comply with the respondent’s policies 

and procedures.








[2019] FWC 8412

22

(b) Mr Hilder’s disregard of the unacceptable risk his actions posed to the health and 

safety of himself and other employees demonstrates that the applicant would be 

unlikely to change his behaviour to act in accordance with the Sydney Trains’ 

policies or procedures.

(c) Sydney Trains operates in a highly regulated environment. In addition to its 

obligations under the Work Health and Safety Act, it also has requirements under 

the Rail Safety (Adoption of National Law) Act 2012 (NSW), Rail Safety National 

Law (NSW) and the Passenger Transport Act 1990 (NSW). Mr Hilder’s lack of 

regard for process and procedures is not only a risk for the safety and comfort of 

passengers and employees, it is also at odds with Sydney Trains’ duty to ensure 

that its Customer Service Attendants conduct themselves in accordance with those 

safety standards. 

[56] However, if compensation was to be ordered, the Sprigg Formula should be applied; 

see: Sprigg v Paul's Licensed Festival Supermarket Print R0235.

For the Union and Mr Hilder 

[57] The Union set out the factual background to Mr Hilder’s dismissal, which is not in 

contest. Next it identified each of the criteria in s 387 of the Act as follows.

[58] Having traces of cannabis in Mr Hilder’s system, in circumstances where he was not 

impaired, was not a ‘sound, defensible or well-founded’ basis for a finding of valid reason; 

see: Selvachandran, or that his conduct constituted serious misconduct. There is no evidence 

that he was impaired at work and was not able to safely perform his duties, or that he was a 

risk to the public, fellow workers or Sydney Trains. Mere assertions do not establish him as a 

safety risk. 

[59] The Union relied on de Leon v Spice Temple Pty Ltd [2010] FWA 3497 as authority 

for the proposition that mere negligence, or mistake may not reach the standard of 

misconduct. Further, Sydney Trains did not take into account its own Just Culture Policy, 

which describes sensible and measured responses to particular conduct. The Union took no 

issue with matters to be taken into account under sub-s 387(b)-(g). Its primary focus was on 








[2019] FWC 8412

23

matters which are commonly referred to as ‘harshness’ factors, under s 387(h). The Union 

submitted that given the low cannabis reading and that Mr Hilder was not impaired and could 

perform his duties safely (which he did for a further two days after the random test), meant 

that Sydney Trains should have decided on a less severe disciplinary penalty. This was 

particularly so given Ms Bellette’s evidence of at least two employees who had been given a 

second chance after earlier failing a drug or alcohol test. The Union emphasised Mr Hilder’s 

unblemished six-year employment record; see: Streeter v Telstra Corporation Limited (2008) 

170 IR 1 and the serious personal and economic consequences of his dismissal; see: Byrne 

and Frew v Australian Airlines Ltd (1995) 185 CLR 410 (‘Byrne and Frew’). 

[60] Reinstatement of Mr Hilder was sought based on the principles set out in Holcim 

(Australia) Pty Ltd v Serafini (2011) 216 IR 1 and Perkins. The Union submitted that there 

was evidence that Mr Hilder was not a habitual drug user. It was accepted he had been honest 

and contrite. There was no reason why the employment relationship could not be restored. In 

the alternative, if the Commission decided against reinstatement, compensation at the upper 

end would be appropriate. 

[61] In reply, Sydney Trains rejected Ms Bellette’s two isolated examples of employees 

given second chances some years earlier. These are not relevant to these proceedings, as 

Mr Walsh’s evidence demonstrated that since the beginning of 2017, any breach of the Drugs 

and Alcohol Policy has resulted in dismissal, or resignation, including employees with lower 

recordings than Mr Hilder. Thus, the Policy is, and has been consistently applied; see: 

Clayton v Coles Group Supply Chain Pty Ltd [2016] FWC 4724. 

[62] Sydney Trains submitted that there was no inconsistency between Mr Hilder’s 

dismissal and the Just Culture Policy. That Policy has three primary focuses:

1. A culture that recognises normal human error does occur.

2. A culture that recognises reckless behaviour as unacceptable.

3. A culture that has high levels of trust and safety awareness.

[63] It was put that Mr Hilder’s conduct was not ‘human error’. He consciously, 

deliberately and intentionally ingested an illicit substance, knowing the employer’s policies. It 








[2019] FWC 8412

24

was reckless behaviour in which he had failed to discuss his consumption of cannabis as 

contemplated by the Just Culture Policy; see: Sheldon-Collins v Broadspectrum (Australia) 

Pty Ltd [formerly Transfield Services (Australia) Pty Ltd] t/a Broadspectrum [2018] FWCFB 

5764. 

[64] Sydney Trains submitted that whilst mitigating factors are acknowledged, they did not 

address the seriousness of Mr Hilder’s conduct; see: Toms. 

Further submissions 

[65] Consistent with leave being granted for further brief submissions on the law and the 

current state and quality of the testing regime adopted by Sydney Trains (see: PN375-378), 

Ms Gaven’s closing submission was 25 pages (almost three times its reply submission) and, 

for the most part was repetitive and more detailed than its reply submissions. I agree with 

Mr Warnes that this submission went well beyond the leave granted and, on one view, was 

intended to improve its case to the one which was earlier put. Accordingly, I will accept only 

those parts of the submission dealing with the relevant law (other than the Act) applying to 

Sydney Trains, about which I sought further information. This is found at paras 4-14 of the 

closing submissions (together with my earlier acceptance of parts of Professor Ogden’s report 

which I consider to be relevant; see [50] above and repeated in paras 14-17 of the closing 

submissions. 

[66] Sydney Trains is bound by a national legislative regime, introduced in 2012, to ensure 

national consistency in relation to rail safety regulation and to set standards for rail safety 

workers. This includes the following: 

‘The national regulation and enforcement regime is contained in the Rail Safety 
National Law No 82a (the National Law) pursuant to the Rail Safety (Adoption of 
National Law) Act 2012 No 82 (NSW) and in the Rail Safety National Regulation 2012 
(National Regulation) pursuant to the Rail Safety (Adoption of National Law) 
Regulation 2018, which includes further details on drug and alcohol testing. Sydney 
Trains has further obligations under the Work Health and Safety Act 2011 (NSW) and 
the Passenger Transport Act 1990 (NSW).’ (emphasis in original)

[67] Division Nine of the National Law imposes drug and alcohol testing by Sydney Trains 

and:








[2019] FWC 8412

25

(a) includes a regime for drug screening tests, urine screening test, oral fluid analysis 

or blood test;

(b) makes it an offence for a rail safety worker to carry out rail safety work while a 

prescribed drug is present and imposes a maximum penalty $10,000: section 

128(1)(b); and

(c) defines delta-9-tetrahydrocannabinol (‘THC’) as a prescribed drug for the 

purposes of the National Law: section 128(5)(a)(i).

[68] The National regime does not impose any requirement for the testing of impairment. 

Sydney Trains relies on urine testing for the presence of proscribed substances. Regulation 

28(1)(a) of the National Law requires Sydney Trains to have a drugs and alcohol management 

system (policy). Sydney Trains’ Drugs and Alcohol Policy states its objective as a ‘vision’ of 

a ‘drug and alcohol free workplace’ with the purpose of ‘providing a safe environment for all 

workers and customers through reducing the risks created by the use of drugs and alcohol in 

the workplace’.

[69] The National Law authorises Sydney Trains to use the results of drug and alcohol 

testing for the purpose of control and management of safe working operations, and for 

disciplinary purposes. In addition, drug testing is permitted by the terms of the Agreement (Cl 

134). Sydney Trains relied on the safety reasons for the strict application of the Drugs and 

Alcohol Policy as set out in Mr Walsh’s oral testimony: 

‘Under the Rail Safety National Law I believe we have to have a program in place for 
random testing, and it certainly is done to try and have a workplace that’s free of 
unacceptable risk and people presenting themselves in situations where they place 
themselves and others at risk.’ (PN232)

‘The testing regime is … something we’re obligated to do and something that we do to 
ensure the safety and wellbeing of all employees and our customers.’ (PN244)

‘… [I]f we weren’t doing it … potentially we would have other people coming to work 
with drugs or alcohol in their system and we would have all sorts of potential safety 
implications as a result of that. So I daresay it does certainly act as a deterrent against 
people coming to work with those things in their system, because they know they will 
get caught and they know the likely outcome is not a good one for them.’ (PN246)

For the Union and Mr Hilder








[2019] FWC 8412

26

[70] In its final response submission, the Union pointed out that Sydney Trains cannot have 

a ‘zero tolerance’ approach to drugs and alcohol where a person may have 49 ug/L in their 

system when randomly tested, but can still present for work, even though the ‘cut-off’ level is 

15 ug/L. The Union accepted the importance of drug and alcohol testing in the workplace, but 

the Policy must be applied transparently, fairly and consistently. Further, the Policy must be 

applied on a ‘case-by-case’ basis, taking into account all of the circumstances. Unfairness will 

arise if the consistent outcome is strictly applied no matter what the circumstances, 

particularly when this changed approach had never been communicated to employees.

Oral submissions

[71] In oral submissions, Mr Warnes said that all times Mr Hilder had been honest, 

forthcoming and contrite. There could be no criticism of his conduct during the investigation. 

He believed he was fit to attend work on 5 October 2018 and the evidence was that he was not 

a habitual drug user – as Mr Walsh properly conceded. Further, Mr Walsh accepted that Mr 

Hilder could not have known what the cannabis level in his system was after smoking one 

‘joint’. 

[72] Mr Warnes acknowledged that Mr Hilder breached Sydney Trains’ Policy, but it was a 

mistake. It was neither deliberate, nor intentional. He did not disclose the smoking of the 

‘joint’ the night before, because he believed it was not in his system and he was completely 

unaffected. 

[73] Mr Warnes referred to the inconsistency in the Policy where persons were given a 

second chance. However, a blanket ‘zero tolerance’ policy, no matter what the circumstances, 

cannot be fair and in Mr Hilder’s case, was harsh. Even accepting the Policy was changed in 

2017, Mr Walsh conceded the change had not been communicated to employees. Further, it 

was Mr Hilder’s uncontested evidence that he had never been told of a ‘zero 

tolerance’/dismissal policy. Mr Warnes speculated that had such a policy change been known, 

Mr Hilder might have acted differently the night before the random drug test. 

[74] Mr Warnes noted Mr Walsh’s evidence that Mr Hilder was an otherwise exemplary 

employee, had won awards and was held in high esteem by his colleagues. There could be no 








[2019] FWC 8412

27

barrier (i.e. loss of trust and confidence) to Mr Hilder’s reinstatement. He had provided 

evidence of the difficulty and he has had in finding alternative employment at his age (64 

years). He has a mortgage and a dependent child at home.

[75] Finally, Mr Warnes said Mr Hilder had only begun driving with Uber last week (first 

week of August 2019) and has had limited income since his dismissal.

[76] In oral submissions, Ms Gaven said that Sydney Trains has a strict obligation under 

the National Rail Safety Laws and since 2012 had adopted a ‘zero tolerance’ approach to 

drugs and alcohol in the workplace. Ms Gaven noted that Mr Hilder had accepted his conduct 

was ‘stupid’. However, inviting the Commission to consider his alleged lack of impairment, 

was not something the Commission could do, and was contrary to the authorities. Ms Gaven

submitted that an admitted breach of Policy must constitute a valid reason for dismissal. 

However, this case really focused on harshness factors. Mr Hilder accepted he was aware of 

the Policy that one cannot turn up for work with drugs in their system; he had been randomly 

tested in his six years of employment and he had undergone the relevant training. 

[77] Ms Gaven said that it was not seriously put that the disciplinary process was not 

proper and appropriate, and it could not be said that Mr Hilder was treated differently to any 

other employee who was found to have drugs in their system in the last few years. It was not 

an error or mistake, but a deliberate and reckless act. 

In reply 

[78] Mr Warnes observed that the THC level in other employees who were dismissed since 

2017 were very high – up to 3000 ug/L. In circumstances where Mr Hilder tested zero to the 

presence of drugs five days later, Mr Hilder’s claim of an honest mistake and his contrition, 

would be accepted as mitigating circumstances. 

CONSIDERATION

Statutory provisions and relevant authorities








[2019] FWC 8412

28

[79] Before determining the merits of an unfair dismissal application, s 396 of the Act, 

requires the Commission to determine a number of preliminary matters; namely:

(a) whether Mr Hilder’s unfair dismissal application was made within the period 

required in subsection 394(2);

(b) whether he was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal 

Code; and

(d) whether the dismissal was a case of genuine redundancy.

[80] Accordingly, I make the following findings:

(a) the application was made within the 21-day statutory time period set out in s 

394(2);

(b) Mr Hilder was a person protected from unfair dismissal in that:

(i) he had completed the minimum employment period, set out in ss 382 and 

383 of the Act;

(ii) his remuneration was below the high income threshold (s 382(b)(iii)); and

(iii) he was employed under the terms and conditions of the Sydney Trains 

Enterprise Agreement 2014;

(c) his dismissal was not a case of genuine redundancy (s 385(d)); and

(d) his dismissal was not a case involving the Small Business Fair Dismissal Code, as 

Sydney Trains employs approximately ten thousand employees.

[81] Section 385 of the Act defines an unfair dismissal based on four criteria which must be 

satisfied if the person, seeking a remedy for unfair dismissal, is to succeed. The section reads:

‘A person has been unfairly dismissed if the FWC is satisfied that:

(a)  the person has been dismissed; and

(b)  the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.’








[2019] FWC 8412

29

[82] Mr Hilder was dismissed by Sydney Trains on 26 April 2019 (sub-s (a)). Subsections 

(c) and (d) of s 385 do not apply, leaving only the question of whether Mr Hilder’s dismissal 

was ‘harsh, unjust or unreasonable’ and consequentially, an unfair dismissal. This leads to 

s 387, which requires the Commission to take into account the following matters:

(a) whether there was a valid reason for the dismissal related to the person's capacity 

or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason;

(c) whether the person was given an opportunity to respond to any reason related to 

the capacity or conduct of the person;

(d) any unreasonable refusal by the employer to allow the person to have a support 

person present to assist at any discussions relating to dismissal;

(e) if the dismissal related to unsatisfactory performance by the person – whether the 

person had been warned about that unsatisfactory performance before the 

dismissal;

(f) the degree to which the size of the employer's enterprise would be likely to impact 

on the procedures followed in effecting the dismissal;

(g) the degree to which the absence of dedicated human resource management 

specialists or expertise in the enterprise would be likely to impact on the 

procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[83] I shall come back to these matters in due course. However, I add at this juncture that 

the meaning of the expression ‘harsh, unjust or unreasonable’ in the context of a dismissal, 

was explained in the oft-quoted extract from Byrne and Frew of McHugh and Gummow JJ, as 

follows:

‘128. Clause 11(b) is aimed at the situation where the termination of employment 
brought about by the dismissal, rather than the steps leading up to the dismissal, or 
lack of them, is harsh, unjust or unreasonable. A dismissal with notice may be harsh, 
unjust or unreasonable because it is based on a ground defined as such by cl 11(b). 
This refers to such matters as termination "on the ground of" race, colour, sex and 
marital status. It may be that the termination is harsh but not unjust or unreasonable, 
unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many 
cases the concepts will overlap. Thus, the one termination of employment may be 
unjust because the employee was not guilty of the misconduct on which the employer 
acted, may be unreasonable because it was decided upon inferences which could not 








[2019] FWC 8412

30

reasonably have been drawn from the material before the employer, and may be harsh 
in its consequences for the personal and economic situation of the employee or 
because it is disproportionate to the gravity of the misconduct in respect of which 
the employer acted.’ (my emphasis)

The allegations

[84] In [2] above I set out the allegations against the applicant from the ‘Show Cause’ letter 

which ultimately led to his dismissal for serious misconduct. I note that the reason was not 

consistently expressed to be serious misconduct, although it seems plain enough from Sydney 

Trains’ submissions that this was in fact how his conduct was characterised.

[85] Serious misconduct is defined in the Act’s Regulations. Regulation 1.07 sets out a 

non-exhaustive definition as follows:

‘(1)  For the definition of serious misconduct in section 12 of the Act, serious 
misconduct has its ordinary meaning.

(2)  For subregulation (1), conduct that is serious misconduct includes both of the 
following:

(a)  wilful or deliberate behaviour by an employee that is inconsistent with 
the continuation of the contract of employment;

(b)  conduct that causes serious and imminent risk to:

(i)  the health or safety of a person; or

(ii)  the reputation, viability or profitability of the employer's business.

(3)  For subregulation (1), conduct that is serious misconduct includes each of the 
following:

(a)  the employee, in the course of the employee's employment, engaging in:

(i)  theft; or

(ii)  fraud; or

(iii)  assault;

(b)  the employee being intoxicated at work;

(c)  the employee refusing to carry out a lawful and reasonable instruction that 
is consistent with the employee's contract of employment.’ (my emphasis)








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[86] It may be reasonably accepted that the misconduct identified at 3(b) above, ‘being 

intoxicated at work’, applies with equal force – if not more so – if the misconduct is ‘being 

under the influence of a prohibited drug’. That being said, Sydney Trains’ submissions used 

various words and expressions such as ‘deliberate’ (behaviour), conduct ‘inconsistent with 

Sydney Trains’ ‘zero tolerance’ approach to drugs and alcohol in the workplace’, serious risk 

to the health and safety of others and conduct which put the employer’s reputation ‘at risk’. In 

fact, it referred to the Regulation in its written submissions. Thus, it seems unassailable that 

Sydney Trains relies on sr (2)(a), 2(b)(i) and (ii) and impliedly s (3) of the Regulation. 

However, reliance on the Regulation is not necessarily determinative. The Regulation and the 

non-exhaustive examples of serious misconduct, do no more than provide a guide. 

Consistency with one, or more of the examples in the Regulation, does not displace the 

statutory instruction that a valid reason (such as a finding of serious misconduct), is but one of 

the relevant matters the Commission is required to take into account under s 387, as to 

whether a dismissal is ‘harsh, unjust or unreasonable’. To demonstrate this proposition, I 

refer to what the Full Bench said in Sharp v BCS Infrastructure Support Pty Limited [2015] 

FWCFB 1033 at [33]-[34]:

‘[33] The relevance of the definition of “serious misconduct” in reg. 1.07 to the 
matter is also, with respect, obscure. Section 12 of the Act contains a definition of 
“serious misconduct” for the purposes of the Act which simply cross-refers to reg. 
1.07. Apart from s.12 itself, the expression “serious misconduct” is used in only three 
places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance 
in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not 
applicable; in s.534(1)(b) a dismissal for serious misconduct is one in relation to which 
the requirements established by Pt 6-4 Div for notification and consultation do not 
apply. The expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair 
Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award 
of compensation for an unfair dismissal, to reduce the amount that it would otherwise 
order by an appropriate amount where it is “satisfied that the misconduct of a person 
contributed to the employer’s decision to dismiss the person”. However, it is clear that 
conduct may constitute “misconduct” for the purpose of s.392(3) without necessarily 
being “serious misconduct”. The expression is used in the Small Business Fair 
Dismissal Code, but that had no application in this case (and it is at least highly 
doubtful in any event whether the reg. 1.07 definition applies to the Small Business 
Fair Dismissal Code). Reg. 1.07 therefore had no work to do in the application of the 
provisions of Pt 3-2 to the circumstances of this case.

[34] It may be accepted that an assessment of the degree of seriousness of 
misconduct which has been found to constitute a valid reason for dismissal for the 
purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In 








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32

that context, a conclusion that the misconduct was of such a nature as to have justified 
summary dismissal may also be relevant. Even so, it is unclear that this requires a 
consideration of whether an employee’s conduct met a postulated standard of “serious 
misconduct”. In Rankin v Marine Power International Pty Ltd Gillard J stated that 
“There is no rule of law that defines the degree of misconduct which would justify 
dismissal without notice” and identified the touchstone as being whether the conduct 
was of such a grave nature as to be repugnant of the employment relationship. 
“Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to 
adopt it as a fixed standard for the consideration of misconduct for the purpose of 
s.387(h) may be confusing or misleading because the expression, and other 
expressions of a similar nature, have been considered and applied in a variety of 
contexts in ways which are influenced by those contexts. In McDonald v Parnell 
Laboratories (Aust) Pty Ltd, Buchanan J said:

“[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful 
misconduct’ are often the subject of judicial and administrative attention as 
applied to the facts of particular cases but there is relatively little judicial 
discussion about their content and meaning. Naturally enough, when the term 
‘serious misconduct’ is under consideration an evaluation of what conduct 
represents ‘serious misconduct’ is influenced by the (usually statutory) setting 
in which the phrase must be given meaning and applied. Frequently, for 
example, the question at issue is whether an employee is disentitled by reason 
of his or her conduct to a statutory entitlement (eg. In New South Wales, where 
Ms McDonald was employed, see Long Service Leave Act 1995 (NSW) s 
4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).”’ (footnotes 
omitted).

[87] In cases of summary dismissal, the onus rests on the employer to prove, to the 

Commission’s satisfaction, that the misconduct, had in fact occurred. In this case, there can be 

little doubt that Mr Hilder’s conduct has been proven; see: Briginshaw v Briginshaw (1938) 

60 CLR 336 (‘Briginshaw’); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 

ALR 449 and King v Freshmore (Vic) Pty Ltd (2000) Print S4213.

[88] Even accepting that a finding of serious misconduct or misconduct was open to 

Sydney Trains, such a finding must not be conflated with the statutory language. The statute 

still requires the Commission to find that there was a valid reason for dismissal (s 387(a)). In 

Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200, a Full Bench of Fair 

Work Australia (FWA, as the Commission then was) held at [16]:

‘[16] In the circumstances of this matter the University purported to terminate Dr 
Asher’s employment for serious misconduct within the meaning of that term in the 
University’s enterprise agreement. If it successfully established that Dr Asher had 
engaged in serious misconduct it would necessarily follow that there was a valid 
reason for the dismissal. However, the converse is not true. As established by Annetta, 








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the question that needed to be considered was whether there was a “valid reason” in 
the Selvachandran sense – whether the reason was sound, defensible or well founded. 
Whether it also amounted to serious misconduct may well be a factor relating to the 
overall characterisation of the termination but it was not an essential requirement in the 
determination of whether a valid reason exists.’

[89] I am satisfied that Sydney Trains has proven the conduct of the applicant as alleged, 

but for the reasons I will shortly set out, I doubt it constituted serious misconduct, or a valid 

reason for Mr Hilder’s dismissal.

Was Mr Hilder’s conduct ‘serious misconduct’?

[90] The notion of wilful or deliberate behaviour which strikes at the heart of the 

employment relationship, has been considered in a number of well-known authorities. In 

North v Television Corporation Ltd (1976) 11 ALR 599, Franki J said at p 616:

‘It is clear that a single act of disobedience may be sufficient to justify dismissal on the 
ground of misconduct but it was held in Laws v London Chronicle (Indicator 
Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act 
must be such as to show that the employee was repudiating the contract of service or 
one of its essential conditions.’

[91] Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 (referred 

to in the citation above) makes it plain that an act of disobedience or misconduct (justifying 

dismissal) requires also that the disobedience must be ‘wilful’:

‘... I do, however, think (following the passages which I have already cited) that one 
act of disobedience or misconduct can justify dismissal only if it is of a nature which 
goes to show (in effect) that the servant is repudiating the contract, or one of its 
essential conditions; and for that reason, therefore, I think that one finds in the 
passages which I have read that the disobedience must at least have the quality that it 
is “wilful”: it does (in other words) connote a deliberate flouting of the essential 
contractual conditions (P288).’

[92] In Concut Pty Ltd v Worrell (2000) 103 IR 160, His Honour, Kirby J, dealt with the 

ordinary relationship of the employer and employee at common law and said at [51]:

‘The ordinary relationship of employer and employee at common law is one importing 
implied duties of loyalty, honesty, confidentiality and mutual trust. At common law:








[2019] FWC 8412

34

“conduct which in respect of important matters is incompatible with the 
fulfilment of an employee’s duty, or involves an opposition, or conflict 
between his interest and his duty to his employer, or impedes the faithful 
performance of his obligations, or is destructive of the necessary confidence 
between employer and employee, is a ground of dismissal. ...[T]he conduct of 
the employee must itself involve the incompatibility, conflict, or impediment, 
or be destructive of confidence. An actual repugnance between his acts and his 
relationship must be found. It is not enough that ground for uneasiness as to its 
future conduct arises.”

In the present case, the findings at trial went beyond mere uneasiness as to the future. 
They necessitated, or at least warranted, a conclusion that the “confidence” essential to 
the relationship of employer and employee had been destroyed. Instead of pursuing the 
interests of the company and its shareholders, the employee had pursued his own 
private interests. Not only was the employee in breach of his duty of fidelity and trust 
owed to the employer, he had remained in breach of that duty to the date of the trial. 
Until that time he had not accounted for the benefits wrongly appropriated by him. 
Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial 
was determined against the employee. He was then subject to the employer’s counter-
claim for an order to make a refund. Such order was duly made at trial. It was not 
contested on appeal. Given his senior status in the company’s service and the nature 
and extent of the misconduct disclosed in the evidence and accepted by the primary 
judge, it was open to him to find that the employee had undermined the confidence 
essential to the ongoing relationship of employment. Prima facie, this had afforded a 
legal justification for the employee’s summary dismissal.

It is, however, only the exceptional circumstances that an ordinary employer is entitled 
at common law to dismiss an employee summarily. Whatever the position may be in 
relation to ‘isolated’ acts of negligence, incompetence or unsuitability, it cannot be 
disputed (statute or express contractual provision aside) that acts of dishonesty or 
similar conduct destructive of the mutual trust between the employer and employee, 
once discovered, ordinarily fall within the class of conduct which, without more, 
authorises summary dismissal. Exceptions to this general position may exist for trivial 
breaches of the express or implied terms of the contract of employment. Other 
exceptions may arise where the breaches are ancient in time and where they may have 
been waived in the past, although known to the employer. Some breaches may be 
judged irrelevant to the duties of the particular employee and an ongoing relationship 
with the employer. But these exceptional cases apart, the establishment of important, 
relevant instances of misconduct, such as dishonesty on the part of an employee like 
Mr Wells, will normally afford legal justification for summary dismissal. Such a case 
will be classified as amounting to a relevant repudiation or renunciation by the 
employee of the employment contract, thus warranting summary dismissal.’

[93] In O'Connor v Palmer (No 1) (1959) 1 FLR 397, the Commonwealth Industrial Court 

(per Spicer CJ and Dunphy J) held at 401:

‘Without attempting to define exhaustively the word “misconduct” it involves 
something more than mere negligence, error of judgment or innocent mistake.’








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35

[94] A more expansive definition can be found in Pillai v Messiter (No 2) (1989) 16 

NSWLR 197, where the New South Wales Court of Appeal, under the heading ‘Misconduct’ 

means more than mere negligence’, said:

‘The words used in the statutory test (“misconduct in a professional respect”) plainly go 
beyond that negligence which would found a claim against a medial practitioner for 
damages:  Re Anderson, (at 575).  On the other hand gross negligence might amount to 
relevant misconduct, particularly if accompanied by indifference to, or lack of concern 
for, the welfare of the patient:  cf Re Anderson (at 575).  Departures from elementary 
and generally accepted standards, of which a medial practitioner could scarcely be 
heard to say that he or she was ignorant could amount to such professional misconduct:  
ibid.  But the statutory test is not met by mere professional incompetence or by 
deficiencies in the practice of the profession.  Something more is required.  It includes 
a deliberate departure from accepted standards or such serious negligence as, although 
not deliberate, to portray indifference and an abuse of the privileges which accompany 
registration as a medical practitioner:  cf Allison (at 760 – 761).  These are the 
approaches which have been taken in our courts.  They have been taken in the courts of 
England where such misconduct is alleged.  And they have similarly been taken in the 
courts of the United states.  The entry in Corpus Juris Secundum, vol 58, (1948) at 
818, reads:

“Both in law and in ordinary speech the term ‘misconduct’ usually implies an 
act done wilfully with a wrong intention, and conveys the idea of intentional
wrongdoing.  The term implies fault beyond the error of judgment; a wrongful 
intention, and not a mere error of judgment; but it does not necessarily imply 
corruption or criminal intention, and, in the legal idea of misconduct, an evil 
intention is not a necessary ingredient.  The word is sufficiently comprehensive 
to include misfeasance as well as malfeasance, and as applied to professional 
people it includes unprofessional acts even though such acts are not inherently 
wrongful.  Whether a particular course of conduct will be regarded as 
misconduct is to be determined from the nature of the conduct and not from its 
consequences.”

Reference to much United States authority is provided to support this passage.  In the 
1988 supplement to the Corpus, reference is made to Beaunit Mills Inc v Board of 
Review, Division of Employment security, Department of Labor and Industry 128 A 2d 
20 (1956).  In that case, the New Jersey Superior Court held that “misconduct” does 
not mean mere mistakes, errors in judgment or in the exercise of discretion or minor 
but casual or intentional, carelessness or negligence.  It did not mean mere 
inefficiency, unsatisfactory conduct, failure of performance as a result of inability or 
incapacity inadvertent in isolated instances or errors of judgment which were not made 
in bad faith or some other ingredient.  Numerous other recent cases are cited to support 
the proposition that, in the United States, “misconduct” generally means wrongful, 
improper or unlawful conduct, motivated by premeditated or intentional purpose or by 
obstinate indifference to the consequences of one’s acts.  Similar approaches to the 
meaning of the word “misconduct” have been taken in Australia, outside the context of 
professional discipline:  see, eg, O’Connor v Palmer (No 1) (1959) 1 FLR 397.  The 








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36

primary dictionary meanings confirm that this is also the way “misconduct” is used in 
everyday speech.

[95] In Police Association of New South Wales (on behalf of Kim Gilmour) and 

Commissioner of Police [2009] NSWIRComm 51, I made some obiter observations based on 

the above principles when I said at [300]:

[300] Mr Howell submitted that the definition of misconduct, in the disciplinary 
context, cannot mean mere mistakes, errors in judgement, errors in discretion, 
carelessness, negligence, inefficiency or poor performance. He put that misconduct 
means 'wrongful, improper or unlawful conduct motivated by premeditated or 
intentional purpose or by obstinate indifference to the consequences of one's acts'. He 
submitted that none of the allegations against SC Gilmour fell into the definition of 
misconduct. Strictly speaking, it is unnecessary for the Commission to make findings 
on these submissions, as I have found that the evidence advanced in these proceedings, 
on the balance of probabilities, does not permit a finding that any of the allegations 
have been proven to the requisite standard. The question of whether the conduct was 
misconduct does not, therefore arise. That said, I consider Mr Howell's submissions 
are thoughtfully made and soundly based.

[96] It may be immediately observed that the above passages might appear to be at odds 

with my more recent comments and citations in Singh v Sydney Trains [2019] FWC 182 

where, after referring to Her Honour Deputy President Asbury’s comments in Macklyn v G&S 

Engineering Services Pty Ltd [2013] FWC 5303, at [327] I said:

‘[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. I also agree 
with Asbury DP that the Commission would not lightly interfere in the decision of 
an employer to dismiss an employee in such circumstances.’ (my emphasis)

[97] The operative word in the above passage is ‘may’, not ‘will’. This merely 

demonstrates the trite proposition that each case will turn on its own facts and circumstances. 

The use of the word ‘may’ does not connote compulsion or discretion. It is a word of 

discretion. Further, the reference to the Commission ‘not lightly’ interfering in the employer’s 








[2019] FWC 8412

37

decision to dismiss, does not mean the Commission would never interfere. In my assessment, 

this is one of those rare cases. That said, in my view, Mr Hilder’s conduct on 4 and 5 October 

2018 could not be objectively characterised as ‘serious misconduct’ and, at worst, might be 

said to be a serious error of judgment. However, I accept, and Sydney Trains does not demur, 

that Mr Hilder’s smoking of one cannabis ‘joint’ on 4 October 2019, was a one-off incident, 

which later medical evidence confirmed that Mr Hilder was not a habitual cannabis user. 

Accordingly, I accept Mr Hilder’s evidence that he had not smoked cannabis for some 30 

years and the incident on 4 October 2018 was not reckless, deliberate or intentional.

[98] Sydney Trains sought to paint Mr Hilder as wilfully, recklessly and intentionally 

attending for work, knowing he may have had traces of the drug in his system. I do not accept 

this characterisation, nor do I accept that Mr Hilder deliberately failed to inform the random 

drug tester, or Sydney Trains’ management, that he had smoked cannabis the night before. 

Mr Hilder (and I think Mr Walsh grudgingly agreed), did not expect the smoking of one 

‘joint’ many hours before commencing work, would result in any impairment in his capacity 

to perform his job safely. Given the current state of technological advancement, I accept it is 

not possible to identify or quantify impairment, and it is not up to an individual to judge their 

own impairment (self-assess). However, there was no evidence that the random drug tester, 

Sydney Trains’ management or any other employee suspected any impairment of Mr Hilder, 

either on the day, or on the following two days when he continued to work normally, without 

incident. I consider it somewhat of an exaggeration to submit that Mr Hilder had 

responsibility for any fault in the boom gates or lights at Clarendon Station. The evidence was 

that he was to do no more than to report to management of any fault. Further, there was no 

evidence as to how it could be sensibly suggested that Mr Hilder was incapable or incoherent 

on 5, 6 or 7 October 2018. 

[99] Further, given the inconsistency between the relevant policies which I discuss shortly, 

Mr Hilder might reasonably have believed that even if he had some residual trace of cannabis, 

it would not be greater than 50 ug/L. I accept his evidence that had he known the employer’s 

Policy meant dismissal for any trace of cannabis in an employee’s system, he may have made 

a different choice when socialising with his friend the night before.

[100] Accordingly, I find that Mr Hilder’s conduct was not serious misconduct and, at worst, 

was a serious error of judgement which was both explicable and understandable.








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Was the applicant’s dismissal ‘harsh, unjust or unreasonable’?

[101] I turn now to consider whether the conduct was a valid reason for dismissal - a 

significant matter under s 387 of the Act.

[102] The meaning of ‘valid reason’ in s 387(a) is drawn from the judgement of North J in 

Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’). This 

meaning has been considered and applied by members of the Commission and its 

predecessors for many years. For example, in Rode v Burwood Mitsubishi Print R4471, a Full 

Bench of the then Australian Industrial Relations Commission (‘AIRC’) discussed the 

meaning of valid reason in the context of the relevant provisions of the Workplace Relations 

Act 1996, and by citing Selvachandran. The following is an extract from the Full Bench’s 

decision at [17]-[19]:

‘[17] In relation to the meaning of “valid reason” the following remarks of Northrop J 
in Selvachandran v [Peterson] Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does 
not give a meaning to those phrases or the adjective ‘valid’. A reference to 
dictionaries shows that the word ‘valid’ has a number of different meanings 
depending on the context in which it is used. In The Shorter Oxford Dictionary, 
the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; 
well founded and applicable, sound, defensible: Effective, having some force, 
pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is 
‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning 
of sound, defensible or wellfounded. A reason which is capricious, fanciful, 
spiteful or prejudiced could never be a valid reason for the purposes of s 
170DE(1). At the same time the reason must be valid in the context of the 
employee’s capacity or conduct or based upon the operational requirements of 
the employer’s business. Further, in considering whether a reason is valid, it 
must be remembered that the requirement applies in the practical sphere of the 
relationship between an employer and an employee where each has rights and 
privileges and duties and obligations conferred and imposed on them. The 
provisions must `be applied in a practical, commonsense way to ensure that’ 
the employer and employee are each treated fairly, see what was said by 
Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and 
application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above 
observations remain relevant in the context of s.170CG(3)(a). A valid reason is one 








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39

which is sound, defensible or well founded. A reason for termination which is 
capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of 
s.170CG(3)(a). 

[19] We agree with the appellant’s submission that in order to constitute a valid reason 
within the meaning of s.170CG(3)(a) the reason for termination must be defensible or 
justifiable on an objective analysis of the relevant facts. It is not sufficient for an 
employer to simply show that he or she acted in the belief that the termination was for 
a valid reason.’

See also: Nettleford v Kym Smoker Pty Ltd (1996) 69 IR 370.

[103] In B, C and D v Australian Postal Corporation t/a Australia Post [2013] FWCFB 

6191, a majority of the Full Bench (Lawler VP and Cribb C) dealt with breaches by a number 

of employees of Australia Post’s IT policies, in respect to the sending, receiving and sharing 

of pornographic material. The majority said at [34]-[36]:

‘[34] In considering whether there was a valid reason for a dismissal under s.387(a), 
the reason(s) being considered are the employer’s reason(s). In a misconduct case, the 
Commission is concerned with whether the misconduct in fact occurred, not with 
whether the employer has reasonable grounds to believe that it occurred (eg. Yew v 
ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 
88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is 
assessed from the perspective of the employer and by reference to the acts or 
omissions that constitute the alleged misconduct on which the employer relied, 
considered in isolation from the broader context in which they occurred. It is the 
reason of the employer, assessed from the perspective of the employer, that must be a 
“valid reason” where “valid” has its ordinary meaning of “sound, defensible or well 
founded”. As Northrop J noted, the requirement for a valid reason “should not impose 
a severe barrier to the right of an employer to dismiss an employee”.

[36] A failure to comply with a lawful and reasonable policy is a breach of the 
fundamental term of the contract of employment that obliges employees to comply 
with the lawful and reasonable directions of the employer. In this way, a substantial 
and wilful breach of a policy will often, if not usually, constitute a “valid reason” for 
dismissal.’

[104] The above authorities, and many more, make clear that a ‘valid’ reason means the 

reason must be ‘sound, defensible or well founded’ and not ‘capricious, fanciful, spiteful or 

prejudiced.’ 








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40

[105] Further, the Full Bench of the Australian Industrial Relations Commission said in 

Container Terminals Australia Limited v Toby [2000] Print S8434 at [15]:

‘[15] In our view, the consideration of whether there was a valid reason for 
termination is a separate issue from the determination of whether a termination was 
harsh, unjust or unreasonable: see generally Department of Justice v Hepburn (1999) 
93 FCR 508, at 512-513 and cases cited therein. The focus of the consideration is upon 
the employer and the basis for his decision to terminate rather than upon its 
consequences for the employee. "What has to be examined is the validity of the reason,
and its connection with the employee's capacity or conduct or its basis in operational 
requirements of the employer": see Qantas Airways Ltd v Cornwall (1998) 83 IR 102, 
at 106. In making such an examination "it is not the court's function to stand in the
shoes of the employer and determine whether or not the decision made by the 
employer was a decision that would be made by the court but rather it is for the court 
to assess whether the employer had a valid reason connected with the employee's 
capacity or conduct..."; see: Walton v Mermaid (1996) 142 ALR 681, at 685.’

[106] In my view, Sydney Trains’ ‘valid’ reason submissions suffer from two fundamental 

and self-evident flaws. The first concerns its said ‘zero tolerance’ approach to drugs and 

alcohol in the workplace and the second, concerns the inconsistency of this approach to 

Sydney Trains’ disciplinary policies and procedures, which purportedly recognise personal or 

mitigating circumstances when a decision is made to dismiss an employee for breach/breaches 

of the Drugs and Alcohol Policy. Let me explain. 

‘Zero tolerance’ approach 

[107] While Sydney Trains’ Drugs and Alcohol Policy is said to be underpinned by a ‘zero 

tolerance’ approach to drugs and alcohol in the workplace, the reality is that there is no such

thing. This is so because initial urine screening will only record a positive THC result over 

50 ug/L. An employee who receives such result will subsequently be in breach of the Policy if 

a confirmatory test is above 15 ug/L; in Mr Hilder’s case, 78 ug/L. In other words, an 

employee may have a non-detected level of 49 ug/L from an initial screening test - three times 

above the 15 ug/L cut off – and escape from detection altogether. While I accept this is a 

consequence of the present screening technology accuracy, it could hardly be said to be 

consistent with a ‘zero tolerance’ approach.

Personal and/or mitigating circumstances 








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[108] Sydney Trains submitted that a breach of the Drugs and Alcohol Policy (‘zero 

tolerance’) does not mean automatic dismissal and personal and mitigating circumstances are 

(and were) taken into account in this case. This is logically inconsistent with the ‘zero 

tolerance’ approach. Further, the evidence makes it abundantly clear that such considerations 

can never sway the decision maker from a decision to dismiss. This evidence not only 

demonstrates internal inconsistencies and is difficult to reconcile with the relevant provisions 

of the Act, but Sydney Trains’ submissions are meaningless, misleading and lack logic.

[109] In his own evidence, Mr Walsh said: 

‘In more recent years it is my experience that Sydney Trains has strictly enforced a zero 
tolerance approach. From at least 2017, all employees who returned a positive reading 
to either drugs or alcohol have had their employment terminated or have been allowed 
to resign (in some isolated incidents). Upon dismissal or resignation, it is Sydney 
Trains’ practice to place a notation on their file that they are not suitable for rehire. 
Annexed at pages 45 to 46 of Exhibit CW-2 is a document that outlines the 
disciplinary outcomes for every matter involving an employee who returned a positive 
reading to an illicit drug, were deemed to have failed to provide a sample or there was 
evidence of tampering since the beginning of 2017. This document is consistent with 
my understanding that, notwithstanding consideration of an employee’s 
circumstances and response to the allegations, employees who:

(a) knowingly and deliberately ingest illicit drugs; and
(b) attend work with drugs in their system above the stipulated levels outlined in the 

Sydney Trains Drugs and Alcohol Policy and the Rail Safety National Law,

have demonstrated a serious disregard for their own and other’s (sic) safety and a zero 
tolerance approach will be taken.’ (my emphasis)

This was confirmed in a document showing employees (numbering 31) who failed to supply 

evidence of tampering, refused a random test or recorded a positive reading to an illicit drug, 

were dismissed or resigned. 

[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. 








[2019] FWC 8412

42

[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. Indeed, a cynic might say that Sydney 

Trains need not bother with the charade of an investigation, if the outcome is already pre-

ordained.

[112] In respect to Mr Walsh’s alleged regard to Mr Hilder’s personal and mitigating 

circumstances, Sydney Trains put the following extraordinary submission:

‘The respondent submits that the seriousness of the applicant’s misconduct is such that 
it cannot outweigh the applicant’s mitigatory circumstances. Were it to be otherwise, 
this would lead to a result where an employee with mitigatory factors such as age or 
extensive service, would be permitted to follow a different standard in respect of drugs 
and alcohol in the workplace than other employees. Such an approach would be 
inconsistent with the respondent’s ‘zero tolerance’ for drugs and alcohol.

[113] In other words, on its own admission, taking into account mitigating factors ‘would be 

inconsistent with the respondent’s approach to ‘zero tolerance’ for drugs and alcohol.’ If this 

was the approach, Mr Walsh embarked on a barren and pointless exercise of balancing 

personal and mitigating circumstances, when it was obvious they would make not a skerrick 

of difference to the outcome.

[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 








[2019] FWC 8412

43

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.

[116] Lest it be asserted that Sydney Trains had been denied procedural fairness because it 

may not have been provided with an opportunity to address my criticism and findings of its 

policies, or were unaware such findings would be made, I would reject both assertions. 

Firstly, the parties were on notice that I had doubts about the ‘zero tolerance’ approach and 

the inconsistency with the disciplinary policy, when there was an admitted (indeed relied on) 

automatic dismissal outcome for any employee who has any level of cannabis detected in 

their system. Indeed, Ms Gaven commented that if I was minded to say something about the 

drug testing regime at Sydney Trains, she wished to put further submissions and did so, by 

also including a report from Professor Ogden. There is reference about these matters at [48] in 

my exchange with Mr Walsh on 8 August 2019.

Consistency of approach

[117] One of Sydney Trains’ main arguments is that its Drugs and Alcohol Policy has been 

applied consistently, at least since 2017, and Mr Hilder was treated no differently to all the 

other employees who were dismissed or resigned since that time involving similar incidents. 

In my opinion, Sydney Trains’ professed consistency is somewhat selective. If Sydney Trains 

believes it is appropriate to have a Drugs and Alcohol Policy which makes clear that any 

detected level of alcohol or illicit drugs will (not may) result in dismissal, then that is a matter 

for Sydney Trains’ management. What it cannot do is have two policies inconsistent with 

each other and in circumstances where employees are not even told the less draconian policy 

will never be applied. This must be so because the evidence was that:

(a) Sydney Trains had not communicated to its employees the true effect of its ‘zero 

tolerance’ policy since 2017.

(b) Sydney Trains had not advised employees that anyone who is found to return a 

positive test for drugs or alcohol, will be dismissed.








[2019] FWC 8412

44

(c) Employees had been unaware that personal and mitigating circumstances would 

not be considered, if any trace of illicit drug use was detected in their systems.

[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.

[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.

Other matters under s 387 of the Act

[120] The Commission is required to take account the other matters set out in ss 387(b)-(h) 

of the Act. Subsections (b)-(e) of s 387 are generally accepted as matters going to procedural 

fairness, or in other words, natural justice. I set out below each of my findings on these 

subsections.

Whether the person was notified of that reason (s 387(b))

[121] It is not in contest that Mr Hilder was notified of the reasons for his dismissal in both 

the Show Cause letter of 6 November 2018 and in the dismissal letter of 13 February 2019 

alleging various breaches of Sydney Trains’ policies. This is a neutral factor in this case.

Whether the person was given an opportunity to respond to any reason related to the 

capacity or conduct of the person (s 387(c))

[122] Similarly, this factor is not in issue. Mr Hilder’s Union represented him and responded 

on his behalf on 20 November 2018 in respect to the Show Cause letter and appealed the 

dismissal decision to TfNSW on 25 February 2019. This is a neutral factor in this case.








[2019] FWC 8412

45

Any unreasonable refusal by the employer to allow the person to have a support person 

present to assist at any discussions relating to dismissal (s 387(d))

[123] At all times, Mr Hilder was assisted and supported by his Union. This is a neutral 

factor in this case.

s 387(e) - If the dismissal related to unsatisfactory performance by the person – whether 

the person had been warned about that unsatisfactory performance before the dismissal

[124] As Mr Hilder’s dismissal did not relate to unsatisfactory performance, but a single 

incident that was deemed to be serious misconduct, this factor is irrelevant to this case.

The degree to which the size of the employer's enterprise would be likely to impact on 

the procedures followed in effecting the dismissal, and the degree to which the absence 

of dedicated human resource management specialists or expertise in the enterprise 

would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f) 

and (g))

[125] Sydney Trains is obviously a large and well-resourced employer in terms of human 

resources and employment relations advice. Notwithstanding Sydney Trains’ comprehensive 

and detailed suite of safety policies and procedures, in view of my earlier comments, it may 

be appropriate to clarify the interaction of the Drugs and Alcohol Policy with the Disciplinary 

Policy, and advise and retrain all employees accordingly.

Any other matters the Commission considers relevant (s 387(h))

[126] Given the facts and circumstances of this case, in my opinion, there could hardly be a 

more meritorious and justified example of the ‘harshness’ component of the expression 

‘harsh, unjust and unreasonable’, than the dismissal of Mr Hilder. Of particular significance 

for me in this case, unlike many other cases I have decided, was Mr Hilder’s openness, 

honesty, remorse and contrition, which I accept was genuine, well-intended and expressed 

from the outset of the investigation of his conduct. In this respect, I refer to a recent Full 

Bench decision of the Commission in Hatnell v Esso Hatwell v Esso Australia Pty Ltd t/a 








[2019] FWC 8412

46

Esso [2019] FWCFB 2895 which granted permission to appeal on two public interest 

grounds; one being:

‘(1) the appeal raises a significant issue of general application concerning the relevance 
to the evaluation of the appropriateness of reinstatement of a failure on the part of an 
unfair dismissal remedy applicant to apologise or acknowledge wrongdoing, in 
circumstances where there has been found to be a valid reason for dismissal based on 
the applicant’s misconduct’.

Later in the decision, the Full Bench said at [28]-[29]:

‘[28] Mr Hatwell’s first ground of appeal concerns the Deputy President’s 
conclusion that Mr Hatwell’s failure to apologise or acknowledge wrongdoing in 
respect of the misconduct which the Full Bench found constituted a valid reason for his 
dismissal was a matter which weighed determinatively against a finding that 
reinstatement was appropriate. It cannot in our view be reasonably contended that this 
was not a material consideration. In circumstances where Mr Hatwell had been found 
to engage in misconduct constituting a valid reason for his dismissal, but that there 
were mitigating factors which rendered the dismissal harsh, a critical issue was 
necessarily whether there were grounds for confidence that Mr Hatwell would, if 
reinstated, not engage in the same or similar conduct again having regard to the 
continuing presence of Mr Flens and other employees of the maintenance contractor at 
the Longford site. The role of an apology or an acknowledgment of wrongdoing in that 
context was explained in the Full Bench majority decision in Mt Arthur Coal Pty Ltd v 
Jodie Goodall as follows:

“[78] The primary issue which arose for consideration before the Commissioner 
in respect of remedy was whether there were proper grounds for confidence 
that Mr Goodall would, if reinstated, never again engage in conduct of the type 
which occurred on the night shift of 10-11 November 2015. That confidence 
was what was necessary to make the employment relationship workable. As we 
have already stated, the Commissioner with the advantage of having seen and 
heard Mr Goodall give his evidence was persuaded that he had a sufficient 
understanding that his conduct was inappropriate, unacceptable and not to be 
repeated. Nothing which has been put to us by Mt Arthur Coal has articulated a 
proper basis for the Commissioner’s findings in this respect to be disturbed on 
appeal. That being the case, there was a reasonable and rational basis for the 
Commissioner to conclude that Mr Goodall would be able to regain the trust of 
his colleagues and thereby re-establish a viable working relationship.”

[29] The circumstances of the proceedings here meant that once the question of 
remedy was remitted by the Full Bench to the Deputy President for determination, Mr 
Hatwell had the opportunity to give evidence, or make a statement via his counsel, to 
demonstrate that he understood that the conduct which was found to constitute a valid 
reason for his dismissal was “inappropriate, unacceptable and not to be repeated” such 
as to form a basis for confidence that a viable working relationship could be re-
established. This might have taken the form of an apology to Mr Flens, an 
acknowledgment that the conduct he was found to have engaged in was wrong, or a 








[2019] FWC 8412

47

commitment to never engage in such conduct in the future and to treat fellow workers 
with respect. However Mr Hatwell declined to take advantage of this opportunity, and 
as a result we consider that it was reasonably open to the Deputy President to 
conclude, as he did, that this meant there was a risk of a recurrence of the behaviour if 
reinstatement was granted, and to treat this as a matter of determinative weight.’

[127] In addition, the other matters I have taken into account include:

(a) Mr Hilder’s age and difficulty in obtaining alternative employment, as 

demonstrated by the evidence of his job-seeking efforts;

(b) Mr Hilder’s family and financial circumstances;

(c) Mr Hilder’s 6 years of exemplary service, including awards for customer service;

(d) the inconsistency between Sydney Train’s policies relied on to dismiss Mr Hilder;

(e) the failure of Sydney Trains to inform employees of the true effect of a ‘zero 

tolerance’ approach to drugs and alcohol in the workplace; and

(f) the fact that prior to 2017 there was evidence of at least two employees who tested 

positive for drugs and alcohol who were given a second chance.

[128] Secondly, Mr Warnes addressed the inconsistency of the ‘zero tolerance’ approach in 

the Union’s submissions of 5 September 2019; see: [73] above.

[129] For all of the above reasons, I am satisfied that Mr Hilder’s dismissal on 26 April 2019 

was ‘harsh and unreasonable’, or at the very least ‘harsh’, within the meaning of s 387 of the 

Act and therefore unfair.

Appropriate remedy

[130] The remedies for an unfair dismissal are set out at ss 390 and 391 of the Act as 

follows:

‘390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement or the 
payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal 
(see Division 2) at the time of being dismissed; and








[2019] FWC 8412

48

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under 
section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in 
all the circumstances of the case.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s 
employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was 
employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no 
less favourable than those on which the person was employed immediately 
before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the 
dismissal is no longer a position with the person’s employer at the time of the 
dismissal; and

(b) that position, or an equivalent position, is a position with an associated 
entity of the employer;
the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed 
immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less 
favourable than those on which the person was employed immediately before 
the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to 
do so, the FWC may also make any order that the FWC considers appropriate to 
maintain the following:








[2019] FWC 8412

49

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if 
subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to
do so, the FWC may also make any order that the FWC considers appropriate to cause 
the employer to pay to the person an amount for the remuneration lost, or likely to 
have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), 
the FWC must take into account:

(a) the amount of any remuneration earned by the person from 
employment or other work during the period between the dismissal and the 
making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by 
the person during the period between the making of the order for reinstatement 
and the actual reinstatement.’

[131] From a plain reading of s 381(c) – Object of this Part - the legislature intended to give 

primacy to reinstatement in circumstances where an employee has been unfairly dismissed 

and the Commission is required to exercise a discretion as to any orders in respect to remedy. 

One of the objects of Part 3-2 of Ch 3, dealing with unfair dismissal, states:

‘(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on 
reinstatement.’ (my emphasis)

[132] I also refer to what was said by the Full Bench of the Commission in Colson v Barwon 

Health [2014] FWCFB 1949, where at [29], it was said:

‘[29] The passages from which the sentences relied on by the Appellant are extracted 
clearly indicate that the Deputy President understood and applied the statutory 
requirements in respect of reinstatement, as does the broader context of his decision. 
The Deputy President noted the primacy of reinstatement as a remedy for an unfair 
dismissal. His observations about primacy did no more than state that consideration of 
reinstatement against the test of whether it is inappropriate was required (and a finding 
that it is inappropriate is required) before compensation in lieu could be ordered and 
does not provide licence to search for a reason to order an employee’s reinstatement 
when that is not appropriate. The requirement to find that reinstatement is 
inappropriate before considering compensation in s.390 of the Act gives effect to the 
emphasis on reinstatement in s.390(1)(c) of the Act’. (footnote omitted)








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[133] In Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community 

Ethnic School South Australia Chapter [2014] FWCFB 7198, the Full Bench of the 

Commission discussed the meaning of ‘inappropriate’ in the context of s 390 and helpfully 

summarised the relevant case law as to a loss of trust and confidence telling against an 

unfairly dismissed employee’s reinstatement. At [20]-[21], the Full Bench said:

‘[20] The most common argument advanced in support of the proposition that 
reinstatement is inappropriate is the proposition, variously expressed, that there has 
been a loss of trust and confidence such that it would not be feasible to re-establish the 
employment relationship.

[21] In Perkins v Grace Worldwide (Aust) Pty Ltd the Full Court of the Industrial 
Relations Court considered the effect of a loss of trust and confidence on the question 
of the “practicability” of a reinstatement remedy and said:

“Trust and confidence is a necessary ingredient in any employment 
relationship... So we accept that the question whether there has been a loss of 
trust and confidence is a relevant consideration in determining whether 
reinstatement is impracticable, provided that such loss of trust and confidence 
is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior 
officer of an employer, accuses an employee of wrongdoing justifying the 
summary termination of the employee’s employment, the accuser will often be 
reluctant to shift from the view that such wrongdoing has occurred, irrespective 
of the Court’s finding on that question in the resolution of an application under 
Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed 
the relationship of trust and confidence between employer and employee, and 
so made reinstatement impracticable, an employee who was terminated after an 
accusation of wrongdoing but later succeeded in an application under the 
Division would be denied access to the primary remedy provided by the 
legislation. Compensation, which is subject to a statutory limit, would be the 
only available remedy. Consequently, it is important that the Court carefully 
scrutinise any claim by an employer that reinstatement is impracticable because 
of a loss of confidence in the employee.

Each case must be decided on its own merits. There may be cases where any 
ripple on the surface of the employment relationship will destroy its viability. 
For example the life of the employer, or some other person or persons, might 
depend on the reliability of the terminated employee, and the employer has a 
reasonable doubt about that reliability. There may be a case where there is a 
question about the discretion of an employee who is required to handle highly 
confidential information. But those are relatively uncommon situations. In 
most cases, the employment relationship is capable of withstanding some 








[2019] FWC 8412

51

friction and doubts. Trust and confidence are concepts of degree. It is rare 
for any human being to have total trust in another. What is important in the 
employment relationship is that there be sufficient trust to make the 
relationship viable and productive. Whether that standard is reached in any 
particular case must depend upon the circumstances of the particular case. And 
in assessing that question, it is appropriate to consider the rationality of any 
attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ 
a person the employer believed to have been guilty of wrongdoing. The 
requirement may cause inconvenience to the employer. But if there is such a 
requirement, it will be because the employee’s employment was earlier 
terminated without a valid reason or without extending procedural fairness to 
the employee. The problems will be of the employer’s own making. If the 
employer is of even average fair-mindedness, they are likely to prove short-
lived. Problems such as this do not necessarily indicate such a loss of 
confidence as to make the restoration of the employment relationship 
impracticable.”’

[134] The Full Bench continued at [27]:

‘[27] The following propositions concerning the impact of a loss of trust and confidence 
on the question of whether reinstatement is appropriate may be distilled from the 
decided cases:

• Whether there has been a loss of trust and confidence is a relevant 
consideration in determining whether reinstatement is appropriate but while it 
will often be an important consideration it is not the sole criterion or even a 
necessary one in determining whether or not to order reinstatement. 
• Each case must be decided on its own facts, including the nature of the 
employment concerned. There may be a limited number of circumstances in 
which any ripple on the surface of the employment relationship will destroy its 
viability but in most cases the employment relationship is capable of 
withstanding some friction and doubts. 
• An allegation that there has been a loss of trust and confidence must be 
soundly and rationally based and it is important to carefully scrutinise a claim 
that reinstatement is inappropriate because of a loss of confidence in the 
employee. The onus of establishing a loss of trust and confidence rests on the 
party making the assertion. 
• The reluctance of an employer to shift from a view, despite a tribunal’s 
assessment that the employee was not guilty of serious wrongdoing or 
misconduct, does not provide a sound basis to conclude that the relationship of 
trust and confidence is irreparably damaged or destroyed. 
• The fact that it may be difficult or embarrassing for an employer to be 
required to re-employ an employee whom the employer believed to have been 
guilty of serious wrongdoing or misconduct are not necessarily indicative of a 
loss of trust and confidence so as to make restoring the employment 
relationship inappropriate.








[2019] FWC 8412

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[28] Ultimately, the question is whether there can be a sufficient level of trust and 
confidence restored to make the relationship viable and productive. In making this 
assessment, it is appropriate to consider the rationality of any attitude taken by a party’ 
(footnotes omitted)

[135] In Regional Express Holdings Limited t/a REX Airlines v Richards [2010] FWAFB 

8753 (‘Regional Express’), the Full Bench made the following observations regarding loss of 

trust and confidence at [26]:

‘Whenever an employer dismisses an employee for misconduct, assuming the employer 
is acting honestly, there is an implied loss of trust and confidence in the employee. If it 
is subsequently found that the termination was harsh, unjust or unreasonable it is 
appropriate to consider whether the relationship can be restored if the employee is 
reinstated. That question cannot be answered solely by reference to the views of 
management witnesses. All of the circumstances should be taken into account.’ 
(my emphasis)

[136] Despite Sydney Trains’ submissions going to a loss of trust and confidence, given my 

earlier conclusions and Mr Hilder’s six years of exemplary service, I am not satisfied that the 

working relationship between him and Sydney Trains is irretrievably broken, or so untenable 

as to serve as a barrier to Mr Hilder being reinstated. Sydney Trains’ evidence went no further 

than the ‘view of management witnesses’. This evidence was not persuasive. Further, there 

was no evidence that Mr Hilder’s reinstatement would damage, or adversely impact on 

Sydney Trains’ reputation, or on its other employees.

[137] Section 391(2) of the Act provides that, if the Commission makes an order for 

reinstatement and considers it appropriate to do so, the Commission may also make any order 

that it considers appropriate to maintain:

‘(a) the continuity of the person’s employment; [and]

(b) the period of the person’s continuous service with the employer...’

[138] In all the circumstances, I consider it appropriate to make an order to maintain 

Mr Hilder’s continuity of employment and the period of his continuous service with Sydney 

Trains; see: Kenley v JB Hi Fi Print S7235.








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[139] Section 391(3) of the Act provides that if the Commission makes an order for 

reinstatement and considers it appropriate to do so, the Commission may also make any order 

to cause the employer to pay to the applicant an amount for the remuneration lost, or likely to 

have been lost, by the applicant because of the dismissal.

[140] Section 391(4) of the Act provides that, in determining an amount for the purposes of 

such an order, the Commission must take into account:

‘(a) the amount of any remuneration earned by the person from employment or other 
work during the period between the dismissal and the making of the order for 
reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person 
during the period between the making of the order for reinstatement and the actual 
reinstatement.’

[141] An order to restore lost pay does not necessarily follow an order for reinstatement. The 

Commission ‘may make any order that it considers appropriate’ (my emphasis); thus, it is a 

discretionary exercise to be undertaken by the Commission. However, where an employee has 

engaged in misconduct, the Commission may refuse to make any order to restore lost pay or 

make an order for part payment of lost remuneration.

[142] In the circumstances of this matter, I have concluded that restoration of full lost 

remuneration would not be appropriate. I determine that Mr Hilder should receive 50% of the 

amount of lost remuneration he would have otherwise received had he not been dismissed, 

less any income earnt by him since his dismissal. While Mr Hilder’s dismissal was unfair, his 

conduct was nevertheless a serious lapse of judgment, which he readily acknowledged was a 

mistake. It will also serve as a timely reminder of the seriousness this Commission regards the 

health and safety of employees and the public in this inherently dangerous industry, and the 

obligations on employees to ensure they always conduct themselves consistent with this 

objective.

[143] Finally, s 381 of the Act is a significant and overarching object of Part 3-2. It is 

expressed in these terms:

‘381 Object of this Part








[2019] FWC 8412

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(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on 
reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the 
manner of deciding on and working out such remedies, are intended to ensure that a 
“fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and 
Holloway v Australian Workers’ Union [1971] AR (NSW) 95.’

[144] I am satisfied that the outcome and orders I make in this matter ensure a ‘fair go all 

round’ is accorded to both Mr Hilder and Sydney Trains.

ORDERS

1. Mr Hilder shall be reinstated to his former position as Customer Service Attendant 

within 21 days of today.

2. Mr Hilder’s continuity of service shall not be taken to have been broken by his 

dismissal.

3. Sydney Trains shall pay to Mr Hilder an amount of lost remuneration equivalent to 

50% of the average remuneration he would have otherwise received from the date of 

dismissal to reinstatement less any remuneration earnt during this period.

4. Lost remuneration shall be calculated by reference to Mr Hilder’s average earnings, 

including overtime and other penalties, in the six months prior to his suspension on 9 

October 2018.








[2019] FWC 8412

55

5. The parties are directed to confer with one another about the implementation of the 

above orders and if formal detailed orders are required, the Commission will do so 

upon request.

6. Any disagreement about the implementation of the above orders may be referred to the 

Commission for determination.

7. These proceedings are otherwise concluded.

DEPUTY PRESIDENT

Appearances:

Mr T Warnes, Director of Organising, and Mr R Hunter, RTBU Organiser, for the applicant.

Ms M Gaven of Counsel, Ms S Moten, Partner and Ms A Redfern, Lawyer, Lander & Rogers, 
for the respondent.

Hearing details:

2019.

Sydney:

8 August.

Printed by authority of the Commonwealth Government Printer

PR715210


ORK WORK COMMISSION FAIR THE SEAL OF




 



[2019] FWC 8412

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Annexure ‘A’


Specific Questions AS/NZS 4308:2008 24. What is the Australian / New Zealand Standard 4308 minimum level prescribed in the Australian Standard for a urine test for cannabis consumption? Why are they set at this level? 24.1.1. Drug testing procedures are governed by several Australian/New Zealand Standards.

AS/NZS 4308:2008 sets out the 'Procedures for specimen collection and the detection and quantification of drugs of abuse in urine'. The scope of the standard states that "The procedures are intended for but not limited to medico-legal, workplace, correctional services or court directed testing ... '. The procedures set out how the specimen should be collected and handled, the protection of the integrity and identity of the sample, laboratory screening procedures, laboratory confirmatory procedures and the reporting procedure. 24.1.2. In drug screening the primary issues are the level of detection and the level at which the measurement becomes significant. The significant level may be the lower end of the therapeutic range where the drug is known to exert an effect. The cut-off for screening THC- COOH in urine is set at 50 ug/L and the-cut-off for confirmation is set at 15 ug/L. 2112 If +h.

45 regularly, or larger amounts intermittently, may go undetected. The advantage of a high cut- off point is that the chances of falsely accusing a person of drug use are minimised. If the cut- off for detection is set too low, environmental contamination, laboratory 'noise' and other factors may lead to an erroneous positive result and false accusations. Practically there is usually a trade-off between false positives and false negatives. 25. The Laverty Drug Test Report shows that two tests were undertaken. The first being an "Initial testing (Immunoassay)" which indicates cannabis metabolites with a cut-off level of 50ug/L (the Initial Test): 25.1. How is this test performed?

25.1.1. Drug screening uses the process of immunoassay to detect a specific substance in the complex mixture of chemical substances found in urine. Antibodies are developed to specific substances, for example THC-COOH. The antibodies are specific and are intended to bind only to the molecule to be tested. The antibodies may also bind to molecules that are chemically very similar (e.g. cannabidiol-carboxylic acid). The challenge in test development is to have a FORENSIC MEDICAL CONSULTANTS Impartial Expert Opinion in Clinical Forensic Medicine 5 | Page




 



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process that is sensitive (can find very small quantities), specific (does not cross-react with other similar substances) and accurate (gives a precise result). 25.1.2. The advantages of immunoassay tests for screening is that they produce rapid results, use a very small volume of the sample, can be automated, are sensitive, cheap and selective. The main disadvantage is that they can produce erroneous results - both false positive and false negative. Immunoassay kits are a compromise between sensitivity and specificity. Sensitivity

measures the extent to which the test correctly identifies those who have been using drugs and specificity refers to the ability of the test to accurately exclude non-drug users. 25.1.3. Most immunoassays cannot distinguish between structurally related substances of the same drug group such as codeine and morphine. This means that screening tests often have high sensitivity but can have poor specificity. When a test is non-negative, additional testing is required to specify which drug was responsible for the antibody reaction observed. 25.2. What does it reveal? 25.2.1. The test was reported to require further testing for cannabinoids implying that the concentration of all cannabis metabolites including THC-COOH in the urine was greater than 50 ug/L. Because of cross-reactivity there is uncertainty whether this reaction was to THC-

COOH specifically or to other cannabinoids. The sample must be subjected to more sensitive and specific testing to specifically identify THC-COOH specifically. 25.3. Why is this set at 50ug/L? 25.4. In blood tests in heavy cannabis users, low levels of THC are found to persist at low levels for weeks [3, 4]. In one study of 25 chronic cannabis users during 7 days of supervised abstinence, 9 users had no detectable THC during the week, 16 had at least one specimen with THC ≥ 0.25 ug/L. 5 participants, all female, had positive samples every day of the week. An Australian study of heavy daily cannabis smokers in residential detoxification showed levels of THC of 2 ug/L or more persisting in the blood for a week [5]. This means that THC will be metabolised and slowly eliminated over a prolonged period.

25.5. In urine tests of regular cannabis users who have stopped smoking, THC-COOH levels drop to less than 20 ug/L in no more than 30 days. Reiter et al studied 52 drug users admitted to a detoxification centre. THC-COOH was detectable at greater than 20 ug/L for up to 18 days [6]. Huestis et al studied six healthy males (under continuous medical supervision) administered either a low dose or a high dose marijuana cigarette. All subjects were under 20 ug/L by 6 days [7, 8]. In FORENSIC MEDICAL CONSULTANTS Impartial Expert Opinion in Clinical Forensic Medicine 6 | Page




 



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a similar experiment Niedbala demonstrated that on average subjects were under 50 ug/L in 42 hours [9]. Summarising the data, Verstrate suggested that detection times approached 10 days in heavy users [10]. 25.6. The cut-off level for screening of 50 ug/L is an arbitrary level set by AS/NZS 4308:2008. It reflects international experience: the level is low enough to detect genuine drug use and high enough to minimise the risk of false positive results. Because the test is an immunoassay, there is

no way of determining which compounds reacted with the antibodies or what concentration is present. When a 'non-negative' result is reported, it means that the test shows something was present but cannot indicate exactly what compound or how much. 26. If the Initial Test returns a non-negative result, what then happens? 26.1. When a result is reported as 'non-negative' it means that the immunoassay showed a reaction, but that test is not able to specifically identify or quantify the substance. The Standard specifies that the result must be confirmed by mass spectrometry which is a laboratory procedure that identifies the specific chemical compounds and the concentration present in the sample provided. A screening test could be positive because of interference from other cannabinoid metabolites and the confirmatory test negative because THC-COOH was either not present or the

level was less than the cut-off level. The confirmatory test is both sensitive and specific to THC- COOH. The confirmatory test can separate the various cannabinoids. The confirmatory test cut- off is for THC-COOH 15 ug/L. 27. What is the cut-off level in the confirmatory test? 27.1. The cut-off level for confirmation of THC-COOH is set at 15 ug/L. 28. Why are there different levels for the screening test and the confirmatory test? 28.1. There are more than 100 cannabinoids in the cannabis plant of which the most psychoactive is THC. Drug testing focuses on THC and its principal metabolite THC-COOH which is specifically detected at confirmation. Many of the other cannabinoids could interfere with screening, so the

cut-off is set at a higher level to avoid false positive results. The cut-off for screening THC-COOH in urine is set at 50 ug/L and the-cut-off for confirmation is set at 15 ug/L. 28.2. The cut-off is set at a level chosen to distinguish meaningful results from background noise. A person could inadvertently have low levels of drug in their urine from passive inhalation of cannabis smoke, hemp oil products and contamination of food and water. Setting the cut-off at zero would lead to false positive results in non-drug users. FORENSIC MEDICAL CONSULTANTS Impartial Expert Opinion in Clinical Forensic Medicine 7 | Page




 



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29. Are the cut-off levels applied by the laboratory used by Sydney Trains in the Laverty Drug Test Report consistent with the Australian Standard? 29.1. Yes.

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Cases cited by this decision: