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June 2020

Reinstatement ordered despite drug use

Reinstatement ordered despite drug use

The Case

Sydney Trains v Gary Hilder (2020)

Sydney Trains employed Mr Hilder as a Customer Service Attendant. On 4 October 2018, Mr Hilder smoked a marijuana joint with a friend. The next morning, he attended work. Mr Hilder was subjected to a random drug test. Mr Hilder continued working that day and the next 3 days without incident, until the drug test returned a positive result.

On 10 October 2018, Mr Hilder was advised of the positive drug test result of 75ug/L and was suspended on full pay while an investigation was undertaken.

Sydney Trains claimed it had a zero tolerance drug and alcohol policy, however indicated in the policy that test results must be below the cut-off level stipulated by the relevant Australia & New Zealand Standard (50ug/L).

Following an investigation, Mr Hilder was dismissed for serious misconduct. Mr Hilder commenced unfair dismissal proceedings in the Fair Work Commission (FWC).

The Verdict

At first instance, the FWC held that:

  • the dismissal was unfair, given Mr Hilder’s age of 64 years, his otherwise unblemished service history since 2012, and the fact he was not a regular consumer of marijuana and had expressed contrition for his conduct;
  • the conduct did not constitute serious misconduct but rather a serious lack of judgement, which had not rendered him unable to undertake his work;
  • Sydney Trains’ drug and alcohol policy was not properly explained to staff and it was flawed – it maintained it had a zero tolerance policy but in fact allowed limits up to 50ug/L, and the policy indicated it would consider personal and mitigating circumstances when dealing with any breaches of the policy; and
  • Mr Hilder should be reinstated and receive 50% of his lost earnings. Sydney Trains appealed to the Full Bench of the FWC

The Full Bench held that:

  • there was a valid reason for the dismissal, as Mr Hilder’s conduct had breached the drug and alcohol policy;
  • the policy was confusing, as Sydney Trains should have better communicated its zero tolerance approach and advised employees of the consequences of breaching it; and
  • the dismissal was harsh given the mitigating factors considered by the FWC at first instance.

As such, the Full Bench upheld the decision to re-instate Mr Hilder.

The Lessons

If an employer wishes to enforce a policy, it must ensure the terms of the policy are unambiguous and are known to the employees, including the consequences of breaching it.

Prior to dismissing an employee, each case must be assessed on its own merits, including any mitigating factors.

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