If an employee gets high can we say goodbye? Not necessarily, says the FWC

Employers often spruik their ‘zero tolerance’ drug and alcohol policies when trumpeting their safety and workplace processes and cultures. However, the Fair Work Commission has also been promoting a ‘zero tolerance’ approach of its own towards unfair dismissals.

In a recent decision by Deputy President Sams, a former employee of Sydney Trains has been reinstated after being dismissed for breaching one of these ‘zero tolerance’ policies.

This case demonstrates that while employers may have a ‘zero tolerance’ policy, this does not mean that any ‘harsh, unjust or unreasonable’ element in a decision to dismiss an employee is automatically forgiven.

Mr Gary Hilder v Sydney Trains [2019] FWC 8412

The applicant

The applicant, Mr Gary Hilder, was a 64-year-old Customer Service Attendant (CSA) employed by Sydney Trains. His role involved:

• providing information to customers about train services;
• giving right of ways to trains to dispatch in a prompt and safe manner; and
• implementing evacuation procedures in the case of an emergency.

Working at a station where he was the only CSA, Mr Hilder was also responsible for responding to any safety issues involving sick or injured customers, as well as being responsible for communicating any issues with the level crossing and boom gate to the Rail Operations Centre.

What happened

Mr Hilder was dismissed on 26 April 2019 for returning a positive result for cannabis during a random drug test on 5 October 2018. In breach of the Sydney Trains Drugs and Alcohol Policy and the Code of Conduct.

Unfortunately, Mr Hilder, although not a habitual drug user (and having returned negative readings on five previous random drug tests) had shared a joint with an old friend the night before, and this was sufficient for him to return a result for cannabis more than five times the limit prescribed. Despite this result, there was no apparent effect to his ability to perform his duties competently and safely.

The dismissal

In its response to the unfair dismissal claim Sydney Trains maintained that although mitigating factors such as Mr Hilder’s age, performance and length of service were considered, the decision to terminate Mr Hilder’s employment was made due to the seriousness of his misconduct.

In performing and defending the dismissal Sydney Trains relied upon its ‘zero-tolerance’ approach to drugs and alcohol in the workplace.

While many employers would see this as a relatively straightforward dismissal, the Deputy President’s finding that the dismissal was unfair highlights the importance of following a proper disciplinary process.

The decision

The Deputy President identified two main issues with Sydney Trains’ submissions in defense of the dismissal:

• the existence of a “zero tolerance” approach to drug use; and
• the “inconsistency of this approach to Sydney Trains’ disciplinary policies and procedures”.

The Deputy President noted the paradox of having a ‘zero-tolerance’ approach to drugs while simultaneously (supposedly) considering personal and mitigating circumstances or an employee’s show cause response. If dismissal is automatic whenever a person fails a drug test, then no true consideration is being given to whether dismissal is truly the appropriate disciplinary outcome.

The Deputy President also noted that the evidence indicated that the officers enforcing the policy were not entirely sure what ‘zero tolerance’ meant, in the context of Sydney Trains’ policy. The Deputy President remarked that if the enforcers themselves were unsure, it might be possible that their employees were similarly unsure.

The other area highlighted by the Deputy President as problematic for Sydney Trains was that their ‘zero tolerance’ approach to drugs and alcohol was inconsistent with its general disciplinary policy, which required personal and mitigating circumstances to be genuinely considered.

In the same vein, although Sydney Trains enforced ‘zero tolerance’ for drugs and alcohol by dismissing those to be found in breach, at no time were employees informed that the disciplinary process would differ in any way from the general disciplinary policy. It was, in a sense, an ‘unwritten’ part of the policy.

Sydney Trains’ ‘zero tolerance’ approach was also on shaky ground when it was revealed that several employees found to have drugs or alcohol in their system had not, in fact, been dismissed.

The Deputy President held that Mr Hilder’s dismissal was unreasonable because the policy he was accused of breaching was substantially inconsistent with the rest of the employer’s policies. He also held that the dismissal was harsh due to the failure of Sydney Trains to establish and communicate a separate disciplinary standard for drug and alcohol matters, and the inconsistent way in which the policy was enforced.

What this means for employers

Employers must understand that the label ‘zero tolerance’ carries no particular magic; proper processes must be followed and all relevant circumstances must be taken into consideration. The label ‘zero tolerance’ should serve as nothing more than an indication of how the business views particular forms of conduct, not the foundation of a separate and distinct disciplinary process.

This case also highlights the importance of communicating the full scope of the policy to employees. While Sydney Trains had provided training around their ‘zero tolerance’ culture, that training focussed on why it was important for the business to be drug- and alcohol-free, rather than the consequences for employees.

Finally, the case serves as an example of a “policy knot” – that is, no matter how the business acts, it will be breaching one policy or another which puts it in a weaker position in the event of litigation. While this tends to happen more often in heavily regulated industries such as transport and mining, any business of sufficient size may fall into this trap.

If you would like more information concerning workplace policies, managing employee behaviour or undertaking disciplinary action please contact our legal team on 1800 572 679 for advice.

By Andrew Piper and Alex Millman, NRA Legal