Sacked after one joint, a 64-year-old rail worker got his job back

Gary Hilder was the customer service attendant at Clarendon Station, the second-last stop on Sydney's Richmond line. On the afternoon of 4 October 2018 he ran into an old friend and smoked a marijuana cigarette with him, the first time he had smoked marijuana in about 30 years. He felt no ill effects. The next morning, an hour into his shift, he was randomly drug tested.

His urine sample tested positive for cannabis, at more than five times the confirmation cut-off. A test arranged through his own doctor a few days later showed him drug free, but Sydney Trains dismissed him in April 2019 for breaching its drug and alcohol policy. He was 64, had an unblemished record, had been remorseful from the start, and had almost no retirement savings.

Deputy President Sams found the dismissal unfair, ordered Sydney Trains to reinstate him, and awarded him half of his lost earnings, less what he had earned since. Sydney Trains appealed, and a Full Bench agreed with part of its argument. In safety-critical rail work, turning up with a banned level of cannabis in his system was a valid reason for dismissal, whether or not he felt affected; there is no direct test for impairment. Lack of impairment can still matter when deciding whether the dismissal was harsh.

But a valid reason is not the end of the question. Sydney Trains said it weighed mitigating factors, while its own witness described a 'zero tolerance' approach under which any breach meant dismissal, and staff had never been told what that approach really meant. Weighing that with Mr Hilder's age, record and remorse, the Deputy President was entitled to find the dismissal harsh. The appeal was dismissed, and the orders for his reinstatement and back pay stayed in place.