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.

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.

On 6 November 2018, Mr Hilder was informed that the investigation concerned an allegation that he had returned a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sydney Trains v Gary Hilder

Details

AGLC: Sydney Trains v Gary Hilder [2020] FWCFB 1373
Case: [2020] FWCFB 1373
Decision Date: 13 MARCH 2020

CaseChat Overview and Summary

Sydney Trains brought an appeal against the decision of Deputy President Sams, handed down on 12 December 2019, in which the Deputy President dismissed Sydney Trains’ unfair dismissal claim against Mr Gary Hilder. The dispute centred on Mr Hilder's termination by Sydney Trains, and the claim that the dismissal was unfair.

The primary legal issue before the court was whether the termination of Mr Hilder by Sydney Trains was justified under section 382 of the Fair Work Act 2009. This required the court to consider whether Sydney Trains had a valid reason related to Mr Hilder's capabilities, attendance, or conduct to terminate his employment. The court also had to assess whether the dismissal was procedurally fair, including whether Mr Hilder was given an opportunity to respond to the allegations against him.

The court determined that Sydney Trains had failed to provide sufficient evidence to establish that Mr Hilder's dismissal was justified. The Deputy President found that while there were issues with Mr Hilder's performance, Sydney Trains had not adequately addressed these concerns or provided reasonable opportunities for improvement. Furthermore, the court concluded that the process of dismissal was not procedurally fair, as Mr Hilder was not given a fair chance to respond to the allegations against him. Consequently, the appeal was dismissed, and the original decision to uphold Mr Hilder's unfair dismissal claim was affirmed.

Orders