[2020] FWCFB 1373


Fair Work Act 2009
s.604—Appeal of decision

Sydney Trains
Gary Hilder



Appeal against decision [2019] FWC 8412 of Deputy President Sams at Sydney on 12 December 2019 in matter number U2019/5109.

Introduction and factual background

[1] Sydney Trains, a statutory corporation established by the Transport Administration Act 1988 (NSW), has lodged an appeal, for which permission to appeal is required, against a decision of Deputy President Sams issued on 12 December 2019 1 (decision). The decision concerned an application by Mr Gary Hilder for an unfair dismissal remedy in respect of the termination of his employment with Sydney Trains which took effect on 26 April 2019. In the decision, the Deputy President determined that there was no valid reason for Mr Hilder’s dismissal and that the dismissal was unreasonable and harsh. By way of remedy, the Deputy President ordered that Sydney Trains reinstate Mr Hilder to his former employment, maintain the continuity of his employment and pay him an amount representing 50 percent of his lost earnings, less any other remuneration earnt since his dismissal. Sydney Trains contends that the decision was attended by appealable error and should be quashed.

[2] The circumstances which led to Mr Hilder’s dismissal may be summarised as follows. Mr Hilder commenced employment with the statutory predecessor of Sydney Trains in 2012, and at the time of his dismissal he held the position of Customer Service Attendant at Clarendon Station, the second-last stop on the Richmond line in the Sydney Trains network. His duties there were, in general terms, to ensure the cleanliness and security of the station and the safety and convenience of customers. The incident which caused Mr Hilder to be dismissed occurred on 5 October 2018. The previous afternoon, he had partaken in smoking a marijuana cigarette when socialising with an old friend he had run into. He felt no ill effects that evening, and did not consider it would compromise his capacity to work the following day. On 5 October 2018 he commenced work at 6.00am and, at about 7.00am, he was subjected to a random drug test and required to give a urine sample. He then continued work that day and for the following two days without incident. He was then rostered off work for some days. An initial screening test and then a subsequent confirmation test were conducted on Mr Hilder’s urine sample and, on 10 October 2018, Mr Hilder was advised that he had returned a positive result for cannabis metabolites (THC-COOH), with a concentration of 78ug/L. The confirmation test cut off level was 15ug/L. He was suspended from work from that point and an investigation process commenced. The same day, Mr Hilder arranged to undertake another drug test with his own doctor, and this showed him to be drug free.

[3] On 6 November 2018, Mr Hilder was informed that the investigation concerned an allegation that he had returned a positive drug test and that this might constitute a breach of the Sydney Trains’ Drug and Alcohol Policy (Policy) and its Code of Conduct (Code). The Policy relevantly provides that Sydney Trains has a random drug and alcohol testing policy, and that the test rating for drugs must be less than the cut off level stipulated in Australia/New Zealand Standard 4398 for drug tolerance (Standard). The Standard (which is not actually contained in the Policy) provides that the screening cut-off for THC-COOH is 50ug/L and the confirmation cut-off is 15ug/L. The Code relevantly requires compliance with the Policy, and provides that returning a positive drug test may result in disciplinary action up to and including termination of employment.

[4] It was ultimately determined that the allegation was sustained and that Mr Hilder should be dismissed. His union applied for an internal review of the decision, but this was unsuccessful and the dismissal outcome was affirmed by letter dated 15 April 2019 but not received until 26 April 2019.

[5] There was uncontradicted evidence before the Deputy President that Mr Hilder:

  had, apart from the positive drug test, an unblemished work record;

  was not a habitual drug user, and indeed had not smoked marijuana for about 30 years prior to his drug use on 4 October 2018;

  had expressed contrition and remorse about his conduct at all relevant times before and after his dismissal; and

  was 64 years of age at the time of his dismissal, had poor prospects of obtaining alternative employment and had virtually nothing in the way of retirement savings.

The decision

[6] After reviewing the factual background and the evidence, and dealing (uncontroversially) with the matters requiring preliminary determination under s 396 of the Fair Work Act 2009 (FW Act), the Deputy President turned to the question of whether Mr Hilder’s dismissal was harsh, unjust or unreasonable by reference to the mandatory matters for consideration in paragraphs (a)-(h) of s 387. The Deputy President first noted that Sydney Trains’ submissions characterised the allegation it made against Mr Hilder as constituting serious misconduct and made reference in that respect to the definition of “serious misconduct” in reg 1.07 of the Fair Work Regulations 2009, but stated that that “reliance on the Regulation is not necessarily determinative”, that “[t]he Regulations and its non-exhaustive examples of serious misconduct do no more than provide a guide”, and that reg 1.07 did not “displace the statutory instruction that a valid reason (such as a finding of serious misconduct) is but one of the relevant matters the Commission is required to take into account under s 387”.  2

[7] The Deputy President then stated that in cases of summary dismissal, the onus rested on the employer to prove to the Commission’s satisfaction that the misconduct had in fact occurred, and there was little doubt that Mr Hilder’s conduct had been proven. However, while he noted that a finding of misconduct or serious misconduct should not be conflated with the statutory language in s 387(a) of a valid reason, the Deputy President then went on to consider whether Mr Hilder’s conduct constituted serious misconduct. 3 After referring to a number of decided cases mostly concerned with the circumstances justifying summary dismissal at common law, the Deputy President characterised Mr Hilder’s conduct as a “serious error of judgment” that was a one-off incident, was not reckless, deliberate or intentional and did not lead to him being incapable or incoherent when at work, and concluded that it was not serious misconduct.4

[8] The Deputy President then turned to whether there was a valid reason for dismissal under s 387. After reviewing a number of the authorities, the Deputy President said that Sydney Trains’ submissions on this topic suffered from “two fundamental and self-evident flaws” - the first being the purported “zero tolerance” approach to drugs and alcohol in the workplace and the second being the inconsistency of this approach with Sydney Trains’ own policies and procedures which recognised personal or mitigating factors when a decision was to be made about dismissing an employee for breaching the Policy. 5 In relation to the purported “zero tolerance” issue, Deputy President found that there was “no such thing” because the initial screening test had a cut-off of 50 ug/L, meaning that an employee with an initial result of (say) 49ug/L would not be subjected to a confirmatory test and thereby escape detection.6 Further, insofar as the “zero tolerance” approach” might be understood to be a reference to the disciplinary consequences of a breach of the Policy - that is, automatic dismissal - that was inconsistent with the capacity under the Policy to take into account personal or mitigating circumstances. In this respect, the Deputy President said:

“[110] In my opinion, you cannot have a strict ‘zero tolerance’ approach at the same time as you profess to take into account personal and mitigating circumstances or an or employees’ show cause response. Both cannot apply in parallel. They are logically inconsistent. This is not meant to be critical of Sydney Trains’ increasing focus on the importance of safety, or its targeted campaigns and publicity around ‘Target Zero’. These are all laudable and desirable objectives. However, the notion of ‘Target Zero’ is, in and of itself, not ‘zero tolerance’. Target is a hope; a goal; a most desired outcome. It is not a realistic practical reality.

[111] As Sydney Trains has a ‘zero tolerance’ approach to drugs and alcohol, it would not matter one jot what personal or mitigating circumstances were considered, or whether the employee responded or not. The outcome would still be the same. The problem here is that no one would expressly acknowledge the obvious. It is little wonder that employees are left confused and bewildered, as I am sure Mr Hilder was. Indeed, a cynic might say that Sydney Trains need not bother with the charade of an investigation, if the outcome is already pre-ordained.

[114] Further, in Sydney Trains’ reply (5 August 2019) it was said ‘[w]hilst mitigating factors are acknowledged, the respondent submits that such factors do not address the seriousness of misconduct …’ (my emphasis). It hardly needs to be said that a mere ‘acknowledgement’ of mitigating factors, does not meet the requisite test under the Act. Mitigating factors must be considered, weighed up and balanced against the conduct. On Sydney Trains’ own case, no such consideration or balancing was undertaken.

[115] Perhaps more significantly, to adopt a ‘one size fits all’ dismissal policy, where harshness factors are ignored, or worse still, are said to be taken into account, when in truth they are not, is a very risky proposition for an employer to defend as a legitimate basis for dismissal. Inadvertently, it will mean that the statutory definition of an unfair dismissal at s 385 being, inter alia, one which is ‘harsh, unjust or unreasonable’, would not be given the full scope of that expression. On one view, Sydney Trains’ submission invites the Commission to ignore harshness considerations (as it plainly did). Such an outcome would be to defeat the statutory purpose and result in the Commission not taking into account a material consideration – a likely appealable error. It is not a course I intend to follow.”

[9] The Deputy President then found that Sydney Trains had not communicated to its employees the true effect of its “zero tolerance” policy since 2017 and had not advised employees that anyone who returned a positive test for drugs or alcohol would be dismissed and that personal and mitigating circumstances would not be considered. The Deputy President concluded in relation to s 387(a):

“[118] It is difficult to establish that an employee is in breach of an employer’s policy which is inconsistent with related disciplinary policies, and the said policy has not been disseminated and advised to all employees. In these circumstances, I am unable to conclude that there was a valid reason for Mr Hilder’s dismissal. Mr Hilder’s dismissal was ‘unreasonable’ and therefore unfair.”

[10] Immediately following this finding, the Deputy President said:

“[119] Even if I am wrong about this finding, I am otherwise satisfied, in all the circumstances of this case, that Mr Hilder’s dismissal was ‘harsh’ and therefore unfair. I shall come back to ‘harshness’ considerations shortly.”

[11] The Deputy President then turned to consider the matters in paragraphs (b)-(h) of s 387. In relation to s 387(b) and (c), the Deputy President found that Mr Hilder had been notified of the reasons for his dismissal and given an opportunity to respond, and treated these as neutral factors in the case. 7 The findings made in respect of s 387(d)-(g) are not controversial and need not be recited. In relation to s 387(h), the Deputy President treated Mr Hilder’s “openness, honesty, remorse and contrition” which, he accepted, was “genuine, well-intended and expressed from the outset of the investigation of his conduct” as a matter of particular significance.8 He also took into account Mr Hilder’s age and difficulty in obtaining alternative employment, his family and financial circumstances, his six years of exemplary service including awards for customer service, the inconsistency between Sydney Trains’ policies relied on to dismiss Mr Hilder, the failure of Sydney Trains to inform employees of the true effect of its “zero tolerance” approach and the fact that prior to 2017 there was evidence of a least two employees who had tested positive for drugs and alcohol who were given a second chance.9 This led the Deputy President to conclude that the dismissal was harsh as well as unreasonable, or “at the very least” harsh, and therefore unfair.

[12] The Deputy President then considered the issue of the remedy to be awarded. We have earlier identified the remedies which the Deputy President concluded he should order. Because Sydney Trains’ appeal, as ultimately pressed in its amended notice of appeal, contains no challenge to the reasoning and conclusions of the Deputy President in this respect, it is not necessary to refer further to this part of the decision. 10

Appeal grounds and submissions

[13] Sydney Trains’ amended notice of appeal contains four appeal grounds. The first two appeal grounds allege errors of fact and law in respect of the Deputy President’s consideration as to whether there was a valid reason for the dismissal, and may conveniently be dealt with together. In respect of these grounds, Sydney Trains submitted:

  the Deputy President failed to refer to the actual reason for Mr Hilder’s dismissal, assess Mr Hilder’s conduct or analyse whether the reason as sound, defensible or well-founded;

  the Deputy President failed to assess the validity of the reason for dismissal pursuant to s 387 independently of the other factors in s 387, but instead took into account extraneous matters such as the “zero tolerance” approach and its purported inconsistency with Sydney Trains’ disciplinary policy, whether the Policy permitted Mr Hilder’s personal and mitigating circumstances to be taken into account and the unreasonableness of the dismissal;

  insofar as there was reliance on Mr Hilder’s lack of impairment, this should not have been considered;

  the assessment of whether Mr Hilder had committed serious misconduct was erroneous because it proceeded on the premise that some wilful, deliberate or intentional act was required;

  reg 1.07 contains examples of conduct that are inconsistent with the continuation of the employment contract which constitute serious misconduct;

  Mr Hilder willingly smoked cannabis and attended for work as a rail safety worker the next morning, and in doing so breached the Policy, his contract of employment and clause 34 of the applicable enterprise agreement and committed an offence under s 128 of the Rail Safety National Law, and this should have been found to amount to serious misconduct;

  the Deputy President erred in his consideration of the validity of the reason for dismissal by failing to find that Mr Hilder was a rail safety worker who by his conduct contravened s 128 of the Rail Safety National Law;

  the Deputy President also erred in this connection by mischaracterising Sydney Trains’ “zero tolerance” approach, in that the Policy made plain that it did not require the complete absence of any trace of drugs in the system but applied cut-offs derived from the applicable Australian Standard; and

  further, the Deputy President found that Sydney Trains’ approach did not allow for the consideration of mitigating circumstances was not supported by the evidence, and Mr Hilder’s mitigating circumstances were in fact considered.

[14] The third appeal ground alleges a denial of procedural fairness in respect of the Deputy President’s exclusion of “large portions” of Sydney Trains’ expert report and its closing submissions without first notifying Sydney Trains and giving it an opportunity to be heard. This material is said to have had direct relevance to matters considered by the Deputy President, including Mr Hilder’s self-assessment of his degree of impairment. The expert material demonstrated, it was submitted, that cannabis has variable strength, there is no meaningful relationship between the level of THC-COOH in urine and the degree of impairment, there is no means to measure cannabinoid concentration to allow the estimation of the degree of cannabis-induced impairment, cannabis users frequently err in their self-assessment of impairment, and it is difficult to detect when a person is affected by cannabis.

[15] The fourth appeal ground contends that the Deputy President erred in treating the conclusions reached by him in respect of paragraphs (b) and (c) of s 387, which were not in contest, as being neutral in his consideration of whether the dismissal was unfair, when they should have weighed positively in favour of a conclusion that the dismissal was not unfair.

[16] Sydney Trains submitted that the grant of permission to appeal would be in the public interest because the decision was attended by significant error, was counter-intuitive and manifested an injustice insofar as a breach of a drug and alcohol policy was found not to constitute a valid reason for dismissal, was disharmonious with other decisions of a like nature and raised issues of serious importance and general application in connection with Sydney Trains’ safe operation of its rail network.

[17] Mr Hilder submitted that the appeal could not succeed because although Sydney Trains attacked the Deputy President’s reasons for concluding that there was not a valid reason for the dismissal, no issue was taken with the Deputy President’s reasoning and conclusion that even if there was a valid reason for the dismissal, it was nonetheless harsh. Accordingly there was no utility in granting permission to appeal.

[18] In relation to the first and second grounds of appeal, Mr Hilder submitted that:

  whether the Deputy President erred in respect of whether Mr Hilder committed serious misconduct was irrelevant to the existence of a valid reason under s 387(a);

  the Deputy President’s assessment of whether there was a valid reason was consistent with established principles, and there was no error of fact merely because he did not make the same findings as those in other cases;

  the propositions that Mr Hilder breached the enterprise agreements and s 128 of the Rail Safety National Law were misconceived because these contentions were not advanced before the Deputy President;

  the Deputy President’s analysis of the “zero tolerance” approach was sound, and no error of fact let alone significant error of fact was articulated by Sydney Trains;

  contextual matters bearing on the gravity of the conduct which caused the dismissal were relevant under s 387, and these included whether the employee had been told about the seriousness of the policy and that any breach might lead to dismissal;

  accordingly the Deputy President did not err by taking into account Sydney Trains’ “zero tolerance approach” and the degree of Mr Hilder’s impairment; and

  the Deputy President did not impermissibly take into account Mr Hilder’s personal circumstances in his consideration of the validity of the reason for dismissal

[19] In respect of the third ground, Mr Hilder submitted that there was no denial of procedural fairness because:

  the parties were given a full opportunity in the normal way to file the evidence upon which they wished to rely in advance of the hearing, and Sydney Trains did so;

  none of the evidence which Sydney Trains filed in that connection was excluded;

  during closing submissions at the hearing, after the issue was raised by the Deputy President, counsel for Sydney Trains requested the opportunity to file some further evidence and submissions concerning the screening cut-off for cannabis testing, the production of the pathology for Mr Hilder’s urine test, and the legal context of the testing process;

  this leave was granted;

  the expert report subsequently filed, and the submissions based on it, went well beyond the scope of the leave, and addressed a range of new issues and allegations not canvassed before in the proceedings;

  the material which went beyond the scope of the leave granted was justifiably excluded; and

  in the circumstances described there was no denial of a proper opportunity for Sydney Trains to present its case.

[20] Mr Hilder submitted that the fourth ground, in respect of the weight assigned to the factors in s 387(b) and (c), does not disclose any appealable error in the exercise of the discretion.


Permission to appeal

[21] We are satisfied that the grant of permission to appeal would be in the public interest. For reasons which we articulate below, we consider that the appeal raises issues of general application in respect of the consideration required by s 387(a) of the FW Act. The subject matter of the appeal is also of significance since it concerns the capacity of Sydney Trains, the operator of the Sydney metropolitan train network, to enforce a policy which is of significance to the safety of its operations. Permission to appeal is therefore be granted in accordance with s 604(2) of the FW Act.

The appeal grounds and the decision

[22] It is apparent that the Deputy President determined that Mr Hilder’s dismissal was unfair on two alternative and independent bases: first, that the dismissal was unreasonable because of his conclusion pursuant to s 387(a) that there was no valid reason for the dismissal and, second, that the dismissal was harsh because of the mitigating factors taken into account pursuant to s 387(h) even if there was a valid reason for the dismissal. We shall in turn consider whether either of these bases for the decision was attended by appealable error.

[23] The first and second grounds of the appeal concern the Deputy President’s conclusion that there was not a valid reason for Mr Hilder’s dismissal and therefore are necessarily directed at the finding that Mr Hilder’s dismissal was unreasonable. They will therefore be considered in that context. Sydney Trains made a submission at the hearing of the appeal that the alleged errors identified in its first and second grounds of appeal somehow “infected” the Deputy President’s consideration under s 387(h) and his finding of harshness, but we do not consider that this submission has any substance for reasons we explain later. The third ground of appeal, which alleges a denial of procedural fairness, is based on the exclusion of evidence and submissions going to the testing regime and its legal context - a matter of relevance only to the Deputy President’s finding under s 387(a). Only the fourth ground of appeal, which challenges the weight to be assigned to the s 387(b) and (c) findings, has any potential to affect the finding that the dismissal was harsh.

Unreasonableness finding

[24] It is necessary to observe at the outset that there is an obvious error in the Deputy President’s finding that Mr Hilder’s dismissal was unreasonable. Section 387 requires that in in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account each of the matters set out in paragraphs (a)-(h) of the section. That requirement can only be read as applicable to each element of the trilogy – that is, a finding that a dismissal is or not harsh, is or is not unjust, or is or is not unreasonable must in each case be founded on a consideration of all the matters set out in s 387(a)-(h). However, as is apparent from paragraph [118] of the decision, which we have set out above, the Deputy President did not comply with this requirement in that he made the finding that the dismissal was unreasonable based only on his conclusion under s 387(a) that there was no valid reason for the dismissal and before he gave any consideration to paragraphs (b)-(h). This constitutes a significant error of law that is jurisdictional in nature. 11

[25] This error was pleaded in Sydney Trains’ notice of appeal as filed, but abandoned in its amended notice of appeal. Accordingly this issue was not addressed in Mr Hilder’s written or oral submissions. It might have been said, had the issue been raised, that the error was not of a material nature because once it was found pursuant to s 387(a) that there was no valid reason for the dismissal, there was nothing in the findings directed to s 387(b)-(h) which could have avoided a conclusion that the dismissal was unreasonable. However, for the reasons which follow, we consider that the Deputy President’s finding that there was no valid reason was made in error.

[26] The principles applicable to the consideration required under s 387(a) are well established, 12 but they require reiteration here:

(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.

(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.

(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).

(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).

(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee’s contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).

(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.

(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).

(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.

(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.

[27] Although the Deputy President adverted to most of the above principles in his analysis of the case law, we consider that in a number of respects his consideration under s 387(a) did not conform to those principles and was accordingly the subject of appealable error.

[28] Firstly, and notwithstanding that he correctly identified that it was not the statutory criterion established by s 387(a), the Deputy President gave extensive consideration to whether Mr Hilder had committed serious misconduct. To a lesser extent he also gave consideration to reg 1.07 on the apparent basis that it was a “guide’, again notwithstanding that he accepted that the regulation was not the matter to which s 387(a) directed attention. These were simply not relevant matters, although we recognise that to a degree the Deputy President appears to have been lured into consideration of these matters in response to the submissions advanced by Sydney Trains at first instance. After dealing with these matters, the Deputy President did go on to consider separately whether there was a valid reason for the dismissal. Therefore, if these were the only difficulties in respect of the Deputy President’s s 387(a) consideration, they could be dismissed as superfluities that did not affect the outcome.

[29] However, the Deputy President’s consideration of whether there was a valid reason was affected by error of a more consequential nature, in that he did not address the material issues identified in the principles identified above but rather determined the issue by reference to a number of irrelevant matters. As the Deputy President recognised, there was no dispute as to the occurrence of the conduct which was the reason for Sydney Trains’ dismissal of Mr Hilder. Nor was it in dispute that this conduct constituted a breach of the Policy. Mr Hilder conceded that he was aware of the Policy and its significance. The only question to be resolved therefore was whether the breach of the Policy was a matter of sufficient gravity to constitute a sound, defensible, well-founded and therefore valid reason for dismissal. This required an assessment of the importance of the Policy in the context of Sydney Trains’ operations and Mr Hilder’s work duties.

[30] This matter was not addressed in the decision in relation to s 387(a). Instead, the Deputy President erroneously focused on Sydney Trains’ “zero tolerance” approach to breaches of the Policy and its apparent inconsistency with Sydney Trains’ position that it would take into account any relevant mitigating circumstances before deciding on its disciplinary response. We do not consider that these were matters relevant to whether there was a valid reason for the dismissal, since they did not concern Mr Hilder’s conduct but rather Sydney Trains procedural and substantive disciplinary response to that conduct. If the consequence of Sydney Trains’ “zero tolerance” was that it would not give any consideration to any mitigating circumstances advanced by any employee who has been found to have breached the Policy, that may be relevant to s 387(c) since it would arguably constitute a denial of a real opportunity to respond to the reason for the putative dismissal. If dismissal was a disproportionate response to the conduct in question because Sydney Trains had failed to take into account mitigating circumstances, that would be a matter relevant to s 387(h). But in the context of s 387(a), they were simply distractions.

[31] We also consider that the Deputy President erred in two further respects in his consideration under s 387(a), insofar as his assessment of whether Mr Hilder had committed serious misconduct may be understood as forming part of that assessment. First, he took into account that Mr Hilder was not “incapable or incoherent when at work”, which involved a mischaracterisation of Sydney Trains’ reason for dismissal. He was not dismissed for being discernibly affected by drugs while at work; rather he was dismissed for attending to work with a proscribed level of cannabis metabolites in his system. The distinction is critical for the reasons explained by the Full Bench in Sharp v BCS Infrastructure Support Pty Limited13 

“[24] Before we turn to Mr Sharp’s appeal grounds, it is convenient to make a general observation about this matter. As the Vice President correctly found, the issue in this case was not Mr Sharp’s ‘out of hours’ conduct in smoking cannabis, but rather that he attended for work (which involved the performance of SSAA [Safety Sensitive Aviation Activities]) with a level of cannabinoids that was above (and very significantly above) the permitted threshold. That was ‘at work’ conduct. Undoubtedly from Mr Sharp’s perspective it seems harsh that he was dismissed as a result of this in circumstances where he did not consider himself to have been impaired or to have represented a risk to anyone’s safety. However, a critical consideration in assessing whether a dismissal in these types of circumstances was unfair is the fact that there is currently no direct scientific test for impairment arising from the use of cannabis. Saliva testing can more accurately detect recent cannabis use than urine testing, which means that it may be a better proxy indicator of the possibility of impairment, but it remains the case that it cannot conclusively demonstrate impairment or non-impairment. Therefore, where an employee who shows no obvious signs of impairment undergoes a drug test at work and tests positive for cannabis use, the employer is placed in a difficult position. In practical terms, it will be unlikely that the employer will be in a position to independently ascertain when the relevant employee consumed cannabis and the quantity that was consumed. Apart from reliance upon the employee’s own explanation about the matter, which will probably not be verifiable, the employer will therefore not be in a position properly to assess whether the employee is impaired as a result of cannabis use and therefore represents a threat to safety. For that reason, employer policies which provide for disciplinary action including dismissal where an employee tests positive for cannabis simpliciter may, at least in the context of safety-critical work, be adjudged to be lawful and reasonable...” (footnotes omitted)

[32] That is not to say that evidence in this case concerning the lack of any impairment was not relevant at all. In accordance with the principles earlier stated, it was potentially relevant under s 387(h) in the context of a consideration of the seriousness of Mr Hilder’s conduct and the proportionality of dismissal as a disciplinary response. However it was not relevant to the actual reason for dismissal.

[33] Second, the Deputy President treated as a significant relevant consideration whether Mr Hilder’s breach of the Policy was intentional rather than a mere error of judgment. Again, that was a distraction from the actual reason for the dismissal, which was a breach by Mr Hilder of the Policy simpliciter by attending for work with a proscribed level of drugs in his system. It would place an employer in an impossible position if, in order to enforce workplace safety policies, the employer had to demonstrate intentionality on the part of the offending employee. In this respect, the following statement by the Full Bench in Urso v QF Cabin Crew Australia Pty Limited14 which concerned the dismissal of a flight attendant who had become intoxicated during a stay in a slip port to the extent that he failed to attend for work the next day, is directly applicable:

“[30] It may be accepted that Mr Urso did not positively intend to become intoxicated to the degree that he could not attend for work the following day when he went to the bar in New York on 22 July 2017. However we do not accept that intention is a necessary element of misconduct which might constitute a valid reason for dismissal for the purpose of s 387(a). Some forms of misconduct clearly involve a positive intention on the part of the employee, such as workplace theft or fraud. However other forms of misconduct, such as breaches of safety policies and procedures, may be the result of recklessness, negligence or misjudgement. In this case, Mr Urso’s responsibility on 22 July 2017 was to limit his consumption of alcohol to a degree which ensured he would be able to attend for work and safely perform his duties the following afternoon. That necessarily required close and continuing attention to the amount of alcohol he was consuming and its effect upon him, since it is notorious that alcohol will operate to progressively diminish personal responsibility and impair a person’s sense of judgment. It defies common sense that a person exercising the requisite degree of restraint could put themselves in the position of consuming 14 standard drinks and then passing out in a period of well under two hours. That Mr Urso got himself in that condition was, we consider, the result of recklessness and misjudgement on his part.”

[34] Again, the issue of Mr Hilder’s intentionality may have been relevant under s 387(h) (although we note that it was not in dispute that he intentionally smoked the marijuana cigarette which caused him to be in breach of the Policy), but it was not relevant to an assessment of the validity of his admitted breach of the Policy as a reason for dismissal.

[35] We consider that it is reasonably obvious that Mr Hilder’s contravention of the Policy constituted a valid reason for dismissal. Not every established breach of a requirement of workplace policy will constitute a valid reason for dismissal. If the policy requirement pertains to a matter which is trivial in nature or inessential to the fundamental requirements of the employee’s employment, an established breach of the policy on a single occasion is unlikely to constitute a valid reason for dismissal. But that is plainly not the situation here. Sydney Trains’ operations are safety-critical. The Policy here is designed to ensure that employees do not perform safety-critical functions with drugs or alcohol in their system. Mr Hilder’s duties required him to perform safety-related functions. Compliance with the Policy was therefore a fundamental element of his employment. As to the general importance of compliance with safety policies in the context of Sydney Trains’ operations, we could not put it better than the Deputy President did himself in Singh v Sydney Trains 15 when he said:

“[325] That an employee’s conduct, which has the potential to cause an imminent risk to the safety of other employees, constitutes a valid reason for dismissal, is plainly an important consideration in cases such as this. The very identification in s 387(a) of such conduct serves to demonstrate how serious the legislature views the ‘safety and welfare’ of others...

. . .

[327] In my view, the conduct in question need not necessarily be wilful, deliberate or reckless to constitute a valid reason for dismissal. Conduct which is negligent, accidental, inadvertent or careless, particularly in the rail industry, can have disastrous, life-threatening consequences. Adherence to safe working policies and practices, particularly where persons are specifically trained to be aware of ever present dangers, is a cardinal principle for any workplace, but even more so in the rail industry where the risk to the safety of employees and the public is obviously so much more acute. It involves fast moving trains and potentially dangerous infrastructure. Employees are commonly working in high risk track environments as a daily feature of the working environment. Such conduct need not be repeated behaviour, but may involve a single instance of conduct which threatens the safety of employees or others…”.

[36] The consideration of whether there is a valid reason for dismissal under s 387(a) requires the making of an evaluative assessment. We consider, for the reasons given, that in undertaking that assessment, the Deputy President failed to take into account the materially relevant considerations and rather determined the outcome on the basis of irrelevant considerations. As a result, the finding that there was not a valid reason for dismissal was in error, and the conclusion that Mr Hilder’s dismissal was unreasonable on the basis of that finding was also in error. Insofar as our reasoning and conclusions encompass a number of the matters raised by Sydney Trains in its first and second grounds of appeal, those grounds are upheld.

[37] It is unnecessary in those circumstances to deal in any depth with the third ground of appeal. It is sufficient to say that we consider that the appeal ground lacks merit for the reasons stated in Mr Hilder’s submissions as summarised in paragraph [19] above.

Harshness finding

[38] As we have already explained, the Deputy President made the alternate finding that Mr Hilder’s dismissal was harsh on the premise that there was a valid reason for dismissal, Accordingly, Sydney Trains’ success in respect of its first and second grounds of appeal does not operate to vitiate that finding. Its submission that the errors in the Deputy President’s consideration under s 387(a) in some sense “infected” his consideration as to harshness is rejected. This submission was not adverted to in any of the grounds of appeal nor was it articulated beyond the level of assertion. We have earlier set out the matters identified by the Deputy President in the decision which caused him to conclude that Mr Hilder’s dismissal was harsh. Only two matters have any intersection with the matters which the Deputy President took into account under s 387(a): the inconsistency said to exist between Sydney Trains’ “zero tolerance” approach and its professed policy of taking mitigating factors into account when considering the taking of disciplinary action. We consider that the Deputy President was entitled to have regard to these matters under s 387(h). As to the first matter, we agree that there is a clear inconsistency between the “zero tolerance” approach, which was clearly characterised by Sydney Trains’ witness Mr Christopher Walsh as one whereby any breach of the Policy would result in the termination of employment, and the consideration of mitigating factors in decision-making concerning disciplinary action. The inference is available that the mitigating factors in Mr Hilder’s case were not truly taken into account when Sydney Trains decided to dismiss him. As to the second matter, there was no challenge in the appeal to the Deputy President’s finding of fact that employees had not been informed of the true nature of the “zero tolerance” approach after its adoption in 2017.

[39] We would add that we do not cavil per se with a decision by an employer to recalibrate its response to breaches of drug and alcohol policies and impose a zero-tolerance approach. However, if such a course of action is undertaken, it is desirable that the employer clearly communicates the terms of the new policy to employees, ensures they are trained in it, and gives adequate warning regarding the date upon which the new policy will be implemented and relied upon. Clarity of communication is also highly desirable as to the actual terms of an employer’s drug and alcohol policy. We note in this respect that the Policy here, which we have earlier summarised, simply cross-refers to the Standard in respect of the cut-off levels for drug use without either incorporating the relevant parts of the Standard or summarising their effect in terms intelligible to the average Sydney Trains employee.

[40] Only Sydney Trains’ fourth appeal ground challenges any part of the Deputy President’s consideration other than under s 387(a) and might therefore potentially affect the harshness finding. However, it has no merit. The weight to be assigned to the conclusions reached under s 387(b) and (c) were a matter for the Deputy President, and a disagreement with the weight assigned to relevant matters that were otherwise the subject of proper consideration is not a sustainable ground of appeal. It was open to the Deputy President to find that compliance with the minimal procedural fairness requirements in s 387(b) and (c) by a large and sophisticated public sector organisation such as Sydney Trains was not a matter of significance and as such might be treated as a neutral consideration.

[41] In this case there were mitigating factors in Mr Hilder’s favour and it was therefore reasonably open to the Deputy President to conclude that Mr Hilder’s dismissal was harsh notwithstanding that there was a valid reason for his dismissal. We do not consider that this conclusion was subject to any appealable error.

Conclusion and orders

[42] Because we have affirmed the Deputy President’s conclusion that Mr Hilder’s dismissal was harsh, and there is no challenge to the Deputy President’s consideration of the remedy to be awarded to Mr Hilder, there is no reason to disturb the orders made by the Deputy President. We consider therefore that the appropriate course is to dismiss the appeal. We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is dismissed.

Seal of the Fair Work Commission with the memeber's signature.



A B Gotting of counsel with S Moten on behalf of Sydney Trains.
P Boncardo
of counsel with G Morgan-Cocks for Mr Hilder.

Hearing details:

7 February.

Printed by authority of the Commonwealth Government Printer


 1   [2019] FWC 8412

 2   Ibid at [84]-[86]

 3   Ibid at [87]-[89]

 4   Ibid at [90]-[100]

 5   Ibid at [106]

 6   Ibid at [107]

 7   Ibid at [121]-[122]

 8   Ibid at [126]

 9   Ibid at [127]

 10   Sydney Trains’ submissions did address how the issue of remedy should be dealt with in the event that its appeal was upheld and there was a rehearing of Mr Hilder’s unfair dismissal remedy application.

 11   See Titan Plant Hire v Van Malsen [2016] FWCFB 5520, 263 IR 1 at [30]; Jetstar Airways Pty Limited v Neeteson-Lemkes [2013] FWCFB 9075 at [49]-[50]; Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]

 12   See Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092 at [117]; Titan Plant Hire v Van Malsen [2016] FWCFB 5520, 263 IR 1 at [28]; Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [25]-[35]

 13   [2015] FWCFB 1033 

 14   [2019] FWCFB 1322

 15   [2019] FWC 182; permission to appeal refused in [2020] FWCFB 884