White, Peter v Asciano T/A Pacific National - [2015] FWC 7466

1

Fair Work Act 2009 
s 394 - Application for unfair dismissal remedy

Peter White

v

Asciano Services Pty Ltd t/as Pacific National
(U2015/3912)

DEPUTY PRESIDENT SAMS SYDNEY, 30 OCTOBER 2015

Termination of employment – Train Driver Trainer dismissed for serious misconduct –
application for an unfair dismissal remedy – alleged serious safety breaches by applicant –
alleged breaches of employer’s policies, procedures and Code of Conduct – allegations 
regarded as ‘reckless violation’ of employer’s policies and procedures – two person train 
operation between Broken Hill and Parkes – two primary reasons for dismissal – leaving Co-
Driver behind – speeding – other minor allegations not determinative – use of on-board toilet 
while train in motion – custom and practice at Parkes depot – breaches of policies and 
procedures by Co-Driver – failure to ensure safety of Co-Driver – applicant unaware Co-
Driver left the train – speeding on numerous occasions – culpability of Co-Driver – data 
logger records disclose numerous instances of speeding – investigation of allegations –
applicant’s failure to acknowledge any wrongdoing or responsibility – whether there was a 
valid reason for dismissal – first allegation not made out – second allegation proven as a ‘one 
off’ incident – mitigating circumstances – criticism of employer’s investigation – no issue of 
witness credit – inconsistent treatment – no previous disciplinary history in 9½ years –
contrition and acknowledgement of responsibility – remedy of reinstatement sought –
reinstatement not impractical – loss of trust and confidence not established – significant 
discount of lost remuneration due to conduct of applicant – imperative of compliance with 
safety policies and procedures – reinstatement, continuity of service, partial lost 
remuneration – orders made.

[1] Mr Peter White (the ‘applicant’) was employed as a Train Driver Trainer by Asciano 

Services Pty Ltd t/as Pacific National (the ‘respondent’). The applicant commenced 

employment on 21 November 2005 and was employed under the terms of the Pacific National 

Bulk Rail Enterprise Agreement 2013 (the ‘Agreement’) on a base salary of $77,551 per 

annum. The applicant was dismissed for misconduct following a serious safety incident on 24 

November 2014 en route between Broken Hill and Parkes in New South Wales when the 

applicant was the Train Driver with Ms Mel Burton as his Co-Driver. In the applicant’s 

termination letter dated 24 February 2015, the respondent set out the specific allegations 

against the applicant as follows:

[2015] FWC 7466

DECISION


E AUSTRALIA FairWork Commission




 



[2015] FWC 7466

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‘Employment with Asciano Services Pty Ltd trading as Pacific National

We have received and considered your response to the allegations put to you regarding 
the serious safety incident that occurred late last year and which was the subject of 
investigation by Pacific National which uncovered numerous and varied breaches of 
procedures designed to keep employees and assets safe.

Termination of Employment
Pacific National has given serious consideration to all of the information collected 
during the investigation as well as your responses to the serious allegations put to you 
and decided to terminate your employment.

In Pacific National’s view, your behaviour on 24 November 2014 demonstrated a 
reckless violation of a number Pacific National’s policies and procedures, including 
the Asciano Code of Conduct which individually and taken together demonstrate your 
lack of general commitment to work safely. In particular as a Driver Trainer, in a 
position of trust and responsibility you took no action in relation to the multiple 
incidents of serious safety breaches which occurred during the journey on 24 
November and in your responses to the allegations put to you, you have failed to take 
any responsibility or acknowledge any wrongdoing in relation to the incident. Pacific 
National has formed the view that you do not understand your basic responsibilities to 
work safely as a Driver. Furthermore you have demonstrated that you do understand 
the obligations of a Driver Trainer to educate others to work safely. As a consequence 
we have serious concerns that if you were to continue in either position with Pacific 
National there is a high risk that you would repeat this unacceptable and unsafe 
behaviour. Specifically, as a Driver Trainer:

 You were aware that your Co-Driver Ms Burton had left the locomotive on 3 to 4 
occasions whilst the train was in motion (requiring Ms Burton to walk out onto the 
external footplate of a moving locomotive), and you did not bring the train to a 
stand, which is in breach of Pacific National accreditation and contravenes “ Safe 
Work Responsibilities of Train Crew”.

 You allowed Ms Burton to smoke in the vestibule while the train was in motion on 
route from Broken Hill between 304 occasions, which is in breach of Pacific 
National’s No Smoking Policy. The policy states ‘all employees, customers, and 
visitors must not smoke at any time whilst on and around Pacific National premises 
or equipment’.

 You failed to check your Co-Driver was safely on-board and in the locomotive 
cabin before departing which we view as a very significant and serious breach of 
safe working.

 You failed to ensure the train identification number and your employee number 
were entered into the data logger of Locomotive 8250 at the start of the journey. 
This is an important process to ensure accountability for the safe handling of the 
train.








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 You did not apply the minimum brake pipe pressure of 70 kpa upon leaving 
Broken Hill, however, you made an application of 45 kpa, which is in breach of 
Pacific National’s Train Handling Standard. The policy states that ‘no attempt 
should be made to release a brake application until the minimum brake pipe 
reduction of at least 70/85 kpa has been made, and the brake equalises.

 On numerous occasions, you knowingly increased the speed of the train (by 
notching up) whilst it was already travelling at or above the maximum allowable 
track speed of 80km per hour, which is in breach of Pacific National Train 
Handling Standard. This standard has been established for many reasons including 
operational, legal, and technical considerations. Exceeding speed limits increases 
the possibility of an accident, damage to loading and equipment and/or increased 
wear and damage to track structure.

 You were not aware of the precise location and safety of Ms Burton before you 
released the train’s brakes and departed the area in the vicinity of the 510km point 
in the Ootha – Yarrabandal section of the track.

In your response from your Solicitor, you have stated that you have not breached your 
responsibilities, and that the matters which Pacific National has raised above, 
concerning the Co-Driver are not matters within your control. This is not an 
explanation which Pacific National accepts as a reasonable excuse for your actions.

Peter, we view the incident of 24 November, 2014 as a significant breach of your 
responsibilities as set out above, you have failed to promote a safe workplace by 
recklessly violating a number of safe working procedures in association with driving a 
train and you have not performed your work in a safe manner which may have resulted 
in catastrophic consequences.

Given the seriousness of these breaches, we consider it is not appropriate to apply any 
remedial action which includes your redeployment to an alternative position within the 
business.

Given the serious nature of this incident and your failure to take responsibility for your 
actions, I have made the decision to terminate your employment effective today, 24 
February 2015. You will be paid (4) weeks payment in lieu of notice together with 
your leave entitlements and current wages due.

Statement of Service 
A Statement of Service stating your years of service will be provided to you.

Return of Pacific National Property
You are required to return all Pacific National property, including manuals, security 
keys, travel pass, identification tags, work wear and all information and records in 
your possession or control to myself. I will contact you to arrange an appointment to 
return your property and complete relevant paperwork. Any outstanding monies owing 
to you will be deposited into your nominated bank account once all outstanding 
Pacific National property and completed paperwork has been returned.

Employee Assistance Program








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Pacific National’s Employee Assistance Program is a confidential and professional 
counselling service that you can access to assist you with any concerns that you may 
have. Should you wish to speak with a qualified counsellor please contact [number 
supplied] to arrange an appointment. 
If you have any questions regarding information contained in this letter, please don’t 
hesitate to contact me on [number supplied].’

Notwithstanding the seriousness with which the respondent viewed the allegations, the 

applicant was paid four weeks’ pay in lieu of notice.

[2] The applicant filed an application with the Fair Work Commission (the 

‘Commission’), pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) for an unfair 

dismissal remedy; namely reinstatement, on 12 March 2015. A conciliation before a Fair 

Work Conciliator was conducted on 7 April 2015. However, settlement of the claim was 

unable to be achieved and directions were issued for the hearing of the matter in Sydney. 

[3] I wish to say something about the conduct of this proceeding in the context of s 596 of 

the Act. Both  parties were legally represented, with permission being granted at the hearing, 

pursuant to s 596 of the Act, for Mr D O’Sullivan of Counsel to represent the applicant and 

Ms A DeBoos, Solicitor representing the respondent. The conduct of this case has plainly 

demonstrated (if that was ever necessary),  my frequent observations after seventeen years on 

the Bench, concerning the efficient conduct of proceedings and the welcome assistance the 

Commission receives when matters are conducted by competent legal practitioners. This case 

was conducted dispassionately, efficiently and professionally. I am reminded of, and 

respectfully agree with, what Sir Anthony Mason, Chief Justice of Australia, said in his 1994 

address, The State of the Judicature (1994) 68 ALJ 125 at 127:

‘But, the exclusion of lawyers neither enhances nor accelerates the course of justice. If 
my long experience of reading the transcripts of proceedings in the Industrial Relations 
Commission and its predecessor the Conciliation and Arbitration Commission has any 
lesson to offer, it is that the presentation of cases by non-lawyers does not lead to 
clarity and speedy hearings; on the contrary, it is more likely to lead to confusion and 
to long, drawn-out proceedings due to the failure of non-lawyers to identify the true 
issues clearly. No doubt lawyers are a nuisance – they habitually find unexpected 
defects in legislation and administrative and other decisions by those who exercise 
power. But that is no reason for excluding lawyers.’

[4] It would strongly contribute to the sound and efficient administration of justice if more 

contested proceedings were conducted in this fashion and I appreciate and congratulate Ms 








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DeBoos and Mr O’Sullivan for their professionalism, common sense and for the respect 

shown to each other and to the witnesses in this case: See also: Law Council of Australia, 

Submission No 247 to Productivity Commission, Workplace Relations Framework public 

inquiry, 27 March 2015, paras [22]-[37].

Preliminary findings

[5] In accordance with s 396 of the Act, the Commission is able to make the following 

preliminary findings:

(a) The applicant was dismissed at the initiative of the employer (s 385);

(b) The applicant is a national system employee and the respondent is a national 

system employer (ss 13, 14, 380);

(c) The applicant’s unfair dismissal application was lodged within the 21 day statutory 

time limit prescribed by s 394(2)(a) of the Act (s 396(a));

(d) The applicant had completed the minimum employment period of 6 months (ss 

382(a), 383);

(e) The employment of the applicant was governed by the Agreement (s 382(b)(i)); 

and

(f) Neither of sub-sections (c) or (d) of s 396 the Act are relevant to this application.

[6] It follows that there is no dispute that the applicant was a person protected from unfair 

dismissal. Consequently, the only question which falls for determination by the Commission 

is whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’ (s 385(b)) within the 

meaning of s 387 of the Act and, if so, what remedy, if any, should be awarded by the 

Commission, pursuant to s 390 of the Act. I shall return to these considerations later.

THE EVIDENCE

[7] The following persons gave written and/or oral evidence in the proceeding:

 The applicant;

 Mr Michael Potter, Training Delivery South for Pacific National; and

 Mr Robert Jarvis, Planning Manager NSW/Victoria for Pacific National.








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[8] A number of the respondent’s policies and procedures, which were said to have been 

breached by the applicant, were referred to in the applicant’s termination of employment letter 

and the statements of Mr Potter and Mr Jarvis. These include the following:

 Asciano’s Health and Safety Policy;

 Asciano’s Code of Conduct; 

 Shunting by Pacific National Staff;

 Rail Industry, Safety Notice (the ‘Prohibition Notice’) (Marked as ‘Annexure A’ to 

this decision);

 Pacific National Train Handling Standards;

 Pacific National’s Accreditation from the NSW Transport Regulator;

 Safe Work Responsibilities of Train Crew; and

 Pacific National’s No Smoking Policy.

NB: The Safe Working Responsibilities of Train Crew policy and the Pacific National 

Accreditation were not tendered in evidence.

[9] I extract below the relevant sections of the policies and procedures referred to above:

Asciano’s Health and Safety Policy:

‘Take all reasonable care for the health and safety of ourselves and others in the 
workplace.’

Code of Conduct:

‘Attend for duty fit and able to perform to safely perform your duties;

Comply with all Policies and Procedures specific to the division in which you work, as 
well as to the broader Asciano Grop, and to your role and in accordance with any 
instructions given to you by your supervisor from time to time;

Perform your work in a safe manner and in accordance with the procedures and 
standards relevant to Asciano so that you return Home Safely, Everyday; and

Immediately report any safety hazards or unsafe conditions appropriately.’

Shunting by Pacific National Staff:

‘Definitions

…

Shunting: involves train or wagon movements that are not directly concerned with a 
through train. Shunting ordinarily takes place during:








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 Train marshalling;
 Wagon placement;
 Attaching or detaching wagons;
 Clearing or placing sidings;
 Splitting trains to perform repairs.

…

Note: Following the imposition of a Prohibition Notice, by the NSW Transport 
Regulator (ITSRR), banning the riding on rolling stock, Pacific National has 
introduced a nationwide prohibition on riding on:

 The footplate of locomotives (such as the 48 class and PL class locomotive).

…

General Rules for Shunting

Boarding or alighting from moving locomotives or wagons is PROHIBITED: Always 
wait for the movement to stop before you attempt to join or alight from the locomotive 
or from an approved wagon.

Riding on locomotive or wagon side steps is PROHIBITED:

Unless riding within a designated operating station or other enclosed space specifically 
designed and approved to protect person during the movement of rolling stock.

Note: Following the imposition of a Prohibition Notice, by the NSW Transport 
Regulator (ITSRR), banning the riding on rolling stock, Pacific National has 
introduced a nationwide ban on riding on:

The footplate of locomotives (such as the 48 class and PL class locomotive).’

Train Handling Standards:

‘4.0  Control of Train Speed

4.1 Speed control is the compliance with speed restrictions, either permanent or 
temporary, which have been established for many reasons, including operating, 
legal and technical considerations such as limitations of the equipment, track or 
structures. Permanent speed restrictions are usually listed in timetable 
footnotes. Temporary speed restrictions are applied because of track or bridge 
repairs, emergency situations such as flooding, equipment considerations, etc. 
and are generally imposed by the circular.

4.2 To exceed authorised speed limits increases the possibility of an accident, 
damage to loading and equipment and/or increased wear and damage to the 
track structure. Speeds, even slightly in excess of established limits, will cause 
train forces transmitted through the wagon body and wheels to the track 
structure to rise at a rapidly increasing rate. The resulting increased force levels 








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can initiate rail rollover, gauge widening or wheel climb, particularly in 
curves.’

4.2.1 The standard 3 piece (3-P) X type bogie (without constant contact side 
bearers) is known to be dynamically unstable when operated at high 
speeds on empty wagons. The primary factor affecting this performance 
is wheel treads profile – wheels wear will decrease the hunting 
threshold from 100 kph (new wheels) to 70 kph for fully worn wheels. 
These bogies develop a motion called ‘hunting’ which increases 
exponentially with speed i.e.:

70 kph 1% of bogies are hunting
80 kph 5% of bogies are hunting
85 kph 20% of bogies are hunting
90 kph 60% of bogies are hunting

This motion can cause wheel climb (on the rails) and result in 
derailments.

4.3 A turnout should be recognised as a sharp curve in the same plane as 
the track from which it diverges. In as much as super elevation cannot 
be introduced into the outside rail (i.e. the track cannot be ‘banked’) to 
help compensate for the lateral forces, observance of the authorised 
speeds through, turnouts is of utmost importance.

4.4 The locomotive Driver must pre-plan brake and throttle handling so that 
speeds established by timetable or train order are not exceeded. Pre-
planning is of particular importance when approaching curves, turnouts 
or restricted speed zones so that authorised speeds are not exceeded and 
in-train forces are minimised while traversing the restricted area.

Train crews should be made aware of the potentially serious 
consequences of over speeds.

4.5 To limit the instances of ‘overspends’ occurring, a systematic program 
of detection, recording, and analysis of overspend conditions should be 
implemented either through the utilisation of supervisory personnel, 
multi-event recorders, speed recording or indicating devices, or a 
combination of these.”

The applicant’s evidence

[10] On 22 November 2014, the applicant was requested to work an overtime shift the next 

day, driving a goods train from Parkes to Broken Hill and back. On 23 November 2014, he 

and Ms Mel Burton, a fully qualified Driver, drove the train to Broken Hill. It was not a 

training shift. They stayed overnight in Broken Hill and signed on for the return trip at 9.20am 








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(9.50am (AEST)) on 24 November 2014. The scheduled running time between Broken Hill 

and Parkes without any delays, is 11 hours 5 minutes.

[11] Upon arrival at the depot, the train was not ready for departure. The applicant was 

concerned with the delay because it would be necessary for the train crew to be replaced if a 

shift extended beyond 12 hours. The train was scheduled to depart Parkes at 22.45 hours, 

preparation for which took 1.5 hours and the departure had already been delayed by that 

amount of time. There were no toilet breaks scheduled in the journey and there were no off 

train toilet facilities between Broken Hill and Parkes.

[12] It was usual for a relief crew to be rostered for the 700 km trip and the applicant 

contacted the Shift Manager to advise of the delayed departure and arrange a location for a 

relief shift to join the train. He was informed that a relief crew had been rostered. It was the 

applicant’s evidence that because he felt significant pressure to get the train back on time, he 

phoned the Line Operators Centre at Parramatta to advise of the circumstances and express 

concern that he may not get back in under 12 hours. He and Ms Burton finally left Broken 

Hill 1 hour 25 minutes later than scheduled.

[13] Into the journey, the applicant was advised of a ‘blackout’ location at Darnick, which 

caused a further delay of 20 minutes. The scheduled ‘cross’ with another train was to occur at 

Ivanhoe. After placing the train in the crossing loop at Ivanhoe, the applicant decided to walk 

the length of the train to inspect the wagons to ensure their safe working. He believed there 

was 90 minutes before the other train arrived. During this inspection, the applicant noticed a 

burning smell. He found the brake on the locomotive behind the lead locomotive stuck on and 

the brake shoes burnt out. He tried to release the brakes, but could not. He then spent 45-60 

minutes speaking with locomotive maintenance of Downer EDI and eventually rectified the 

problem. He said that he was stressed and worried that he might not be able to get the train 

moving again. During this time, Ms Burton told the applicant she was going to the toilet. He

observed her going into the on-board toilet while the train was stationary. 

[14] After leaving Ivanhoe, the applicant asked Ms Burton if she would like to take control 

of the train. She declined and he did not pressure her to do so. Shortly after, the applicant 

noticed what he thought was smoke coming from behind the locomotive, as a result of the 

earlier brake problem. He stopped the train to inspect the locomotive at around 20.50 hours –








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after 11 hours on duty and about one hour from Parkes. As he found no defect and could 

smell no smoke, he concluded he must have seen dust. He was off the locomotive for around 

five minutes.

[15] When he got back into the Driver’s seat, he released the train’s brakes for departure. 

Ms Burton was in the Co-Driver’s seat. As he released the brakes, there was a lot of noise 

because of the usual noise of the brake valves. At this point, he observed Ms Burton pick up 

her cigarettes. She said words to the effect of, ‘I’m going for a pee’. The applicant said that in 

hindsight, and having assumed Ms Burton was using the on-board toilet, it would have been 

safer to reapply the brakes until she returned. He regrets not having done so.

[16] The applicant believed Ms Burton was intending to use the on-board toilet of the 

locomotive. The toilet had to be accessed by the external footplate for about a meter (with a 

handrail). The brake release process took about four minutes. The applicant expected that 

when she left the cabin the train would be moving at a ‘walking pace’, if at all. He assumed 

she was intending to smoke in the enclosed vestibule, as she had done so on several other 

occasions.

[17] It was the applicant’s evidence that in the ten years he had worked for the respondent, 

it was common practice for the crew to use the on-board toilet, while the train was in motion 

(including at full speed), because there were no scheduled toilet stops on the journey. 

[18] Returning to the journey, the applicant said he allowed the train to get up to speed 

after about 5-7 minutes, expecting that Ms Burton would have returned by then. However, 

when he looked back, he could not see her. It was difficult to see, because it was now dark. 

The applicant decided to pull up as soon as he could safety do so at Yarrabandai. When he did 

so, he could not find Ms Burton and assumed she must have got off the train to go to the 

toilet. As her work and personal phones and radio were still on-board, he could not contact 

her. He rang the Shift Manager at Parkes to ask him to drive out and meet the train. He also 

rang the Line Operations Representative, Parkes Police and the Australian Rail Track 

Corporation (ARTC) Train Control to advise of the situation. When the Shift Manager 

arrived, they both drove along the roadway and found Ms Burton walking down the track, 1-

2km away. She appeared calm and ‘a bit jovial´ and they had a conversation to the following 

effect:








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Ms Burton: I hopped off to go to the toilet. You went without me!

Applicant: I thought you were using the on-board toilet.

Ms Burton: I’m so sorry, I thought you knew I was getting off the loco.

Applicant: It doesn’t matter, we’ve obviously had a miscommunication. I’m 
just glad you’re okay.

They both went back to Parkes by car, having handed over the train to the relief crew. The 

applicant signed off duty at 2315 hours. 

[19] Three days later, the applicant was suspended on full pay pending the outcome of an 

investigation in respect to the incident. He attended two interviews with Management on 28 

November and 15 December 2014. On 5 January 2015, he received a letter from Michael 

Potter, Training Delivery Specialist, seeking his response to the initial allegations against him. 

There were various exchanges between the applicant’s solicitor and Mr Chris Saunders, 

Training Manager. The applicant’s solicitor also attended a meeting on 24 February 2014 with 

Mr Bob Jarvis, Planning Manager, at which the applicant was informed of his dismissal.

[20] In his first statement, the applicant gave an explanation for exceeding the speed limit 

of 80km/h. He accepted he had also allowed Ms Burton to smoke on the train in breach of 

Pacific National Policy. However, he saw no point in reporting her, as there was a culture in 

Parkes of employees smoking (including Shift Managers) in non-smoking areas. Both of these 

matters were developed in the applicant’s reply statement and in oral evidence, which I will 

come to shortly.

[21] The applicant believed that, given the following matters, his dismissal was ‘harsh’:

 his unblemished record of 9½ years;

 his pride in his work and enjoyment of training other Drivers;

 his Co-Driver, Ms Burton, was not dismissed;

 other employees in Parkes involved in safety incidents, had not been dismissed. He 

provided a list of these examples;








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 his significantly altered lifestyle due to reduced earnings in alternative employment 

as an Area Manager for Big Springs National Spring Water ($65,000, including 

superannuation).

 there was considerable strain on his marriage during this time;

 he had cancelled a family holiday because he had been worried about losing his job 

and his family (wife and two children, aged 2½ and 4½ respectively);

 he had acquired a mortgage based on his previous income with the respondent and 

was now forced to make mortgage repayments from savings; and

 plans for a third child were put on hold because of additional costs.

[22] Attached to the applicant’s statement were copies of photos of the 82 class locomotive 

showing the location of the vestibule door and the on-board toilet. 

[23] In a reply statement, the applicant questioned the technical knowledge of Mr Potter, 

who he believed had only ever worked in the coal operations of Pacific National. He drew a 

distinction between the coal and the bulk rail sides of the business as follows:

‘…In the coal business, from my understanding:
a. Trains are always the same length configuration and weight;
b. Trains travel to and from the same locations;
c. Schedules never change;
d. Coal train crews … usually have crew relief sign on after 7 hours.

The bulk rail side of the Pacific National business, in which I have worked, is 
completely different:

a. Trains length, configuration and weight varies;
b. Trains travel to different locations;
c. Schedules frequently change (our scheduling was described as “ad hoc 
scheduling”);
d. Train crews are sometimes relieved, but only if approaching 12 hours on 
shift, but may work up to 16 hours if being transported in a car by a Driver.’

[24] The applicant described the work of Train Drivers working from the Parkes depot.

They are required to know 6,000kms of track, five different safe working systems and drive 

fourteen different types of locomotives, (the majority being 48 class, which have a toilet in the 

cabin at the front of the train). Aside from the 82 class locomotive, the applicant believed the 

only other locomotive which has a toilet accessible only via the external footplate was the X-

class, which had been banned by every depot, except Parkes. The applicant estimated that he 








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had driven an 82 class locomotive three or four times and been a Co-Driver about eight times. 

He recalled only working the Broken Hill line about five or six times over ten years.

[25] The applicant had asked for copies of the data logger records, on a number of 

occasions, so as to confirm that he had been speeding (on Mr Potter’s evidence) on 855 

occasions on the trip in question. His requests were initially declined (This allegation will be 

further explained later. However, the data logger records each instance of speeding every one 

second.).

[26] The applicant acknowledged that the train, ‘did get away from me’ on a couple of 

occasions, but he denied having deliberately caused it to exceed the speed limit. In addition, 

he noted that his Co-Driver had a digital speedometer directly in front of her and, at no time,

during the journey had she mentioned or alerted him to the fact that the train was exceeding 

the speed limit. The applicant further explained that while the track is relatively flat, you drive 

the train ‘by feel’ and experience.

[27] The applicant stated that after he realised Ms Burton was not on board, he took about 

six minutes to slow the train and stop in a safe place clear of the loop and near the road so 

they could be collected by someone from the Parkes Depot. He noted that from the data 

logger report, it took 3 minutes, 16 seconds for the train to start moving, after he released the 

brake pipe pressure. He believed that Ms Burton would have returned in that time, without the 

train yet moving. As Ms Burton had alighted from the train, it was now clear that she had 

never actually been on the footplate, while the train was in motion. It later came to the 

applicant’s attention that on 24 November 2014, the train’s brake cylinder warning light was 

not working. 

[28] In cross examination, the applicant agreed that as a Driver Trainer, he was a senior 

Driver with a high level of responsibility, particularly in respect to safety. He was also 

required to have high level knowledge of all standard policies, licensing and regulatory 

requirements and be able to demonstrate this knowledge and experience to other Drivers.

[29] The applicant further acknowledged that he had been relieved in the past when the 

twelve hour shift limit had been reached and the train stopped and the crew relieved, although

he could not say if it was a common occurrence. In these circumstances, he would take steps 








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to advise the Shift Manager and the Live Operations Centre, as he did on 24 November 2014. 

He conceded that no one had told him to drive for over twelve hours or that he could not be 

relieved. In fact, he and Ms Burton were relieved on that day. No one, to his knowledge, had 

been disciplined for requiring a relief crew.

[30] The applicant denied he was speeding on the trip because he wanted to make up time 

for the delays, both before the train left Broken Hill and during the trip. He acknowledged that 

the speed limit on the journey was 80 km/h, that exceeding the speed limit increases the risk 

of derailment and it is a serious issue. However, he reiterated that he did not deliberately 

cause the train to exceed the speed limit. He accepted that the data logger records indicate that 

he increased speed when he was already speeding. He said there may have been distracting 

reasons why he had done so – he may have been keeping the train at ‘stress’ position, eating a 

meal or talking to the Co-Driver. Nevertheless, he accepted that distractions were no excuse 

for speeding. The applicant now accepted that the data logger records accurately reflect the 

locomotive’s activities that day. He explained that when he said the train may have ‘got away 

from him’ a few times, he had meant it sped up, without him noticing. This might happen due 

to the track topography.

[31] The applicant said he was unaware that there was a licensing requirement on that 

particular line for two Drivers to be seated in the cabin at all times. The second Driver is an 

observer, but they may swap duties, if the Co-Driver is fully qualified.

[32] It was the applicant’s evidence that he had used the throttle to increase the speed when 

he was already speeding. This required a deliberate action by the Driver. The applicant 

explained the action and effect of releasing the brake on the brake pressure. He was closely 

questioned as to what occurred when he had stopped the train to inspect the locomotive. The 

inspection took from 19.48 to 19.50.46, when he had returned to the cabin and released the 

brake. Ms Burton then got up and said she was ‘going for a pee’. The applicant denied that 

she had said ‘I need to go to the toilet, don’t leave without me.’

[33] The applicant explained that when the brake is released, it produces a loud hissing 

noise. At 19.52.9, the train started to move and the throttle was engaged at Watch 1 – the 

lowest. Eleven seconds later, the train was moving at 11km/h. The applicant believed Ms 

Burton had gone to the toilet on the train, although it would have taken only 90 seconds 








[2015] FWC 7466

15

before the train started moving. He accepted that she would not be back in her seat in that 

short space of time. 

[34] The applicant said he first became worried about Ms Burton when he applied the brake 

at 20.00.28. He brought the train to a standstill at 20.06.10 after travelling 11.14 kms. The 

applicant was concerned that Ms Burton had got off the locomotive to go to the toilet.

[35] In further questioning, the applicant agreed that it was extremely dangerous to ride on 

the footplate outside the cabin, while the train was in motion. However, he was not aware of a 

specific policy or procedure prohibiting this practice, except in relation to shunting. He was 

unaware of a prohibition notice about this practice issued by the safety regulator, and was not 

aware of its contents. Nevertheless, he accepted that Ms Burton would have had to go onto the 

footplate at a time when he had put the train into motion. He agreed that in hindsight, he 

should have reapplied the brake when Ms Burton said she was going to the toilet. He denied 

he had not done so because the train was already late and he would be late home.

[36] Returning to the prohibition notice, the applicant said while there was a prohibition of 

riding on footplates at low speeds, it did not necessarily follow that it would also apply at 

higher speeds (although he agreed that this was logical). This was because shunting was 

inherently dangerous, with people on the ground where wagons are close together and being 

moved. He believed the prohibition notice arose from someone being killed during shunting.

[37] The applicant gave further evidence about the application of brake pressure. It is 

necessary to reduce the pressure to avoid burning out the brake shaft. He reiterated that  it was 

very difficult to detect variations in brake pressure of anything less than 25kPa. He believed 

that on the journey that day there was actually a problem with the system. He had been told of 

this by EDI Downer.

[38] The applicant acknowledged that in the investigation meeting on 24 November 2014, 

he did not concede that he had done anything wrong; he denied deliberately speeding and had 

sought further evidence; he denied breaching procedures in leaving Ms Burton behind and had 

made no concessions at all during the investigatory interviews.








[2015] FWC 7466

16

[39] In re-examination, the applicant said that while he held a senior Driver role, it 

involved no supervision of other Drivers, nor could he direct other drivers in their duties.

[40] He believed that he was proactive in respect to following all safety procedures on the 

day in question. He described the process of ‘stretching’ the train, which involves ensuring 

that the trailing tonnage does not ‘hit up’ against the locomotives with a tremendous force.

[41] During the applicant’s re-examination, photos were tendered of the panels directly in 

front of the Driver and Co-Driver of the 82 class locomotive. The applicant explained the 

functions and roles of each of the screens, dials controls and gauges on the panel. The 

applicant repeated that, at no time, had Ms Burton mentioned that the train was speeding, 

despite having a speedometer directly in front of her. He would have expected her to say 

something. He said he was a bit more vigilant on the trip because the train was twice as long 

as normal. He regularly looked in the mirrors for smoke and dust behind the locomotive.

[42] The applicant gave two examples of when he had experienced only one Driver in the 

cabin – when the Co-Driver was smoking in the vestibule directly behind the cabin and during 

shunting on the main line.

[43] The applicant said that he had made the decision to stop the train at Yarrabandai, after 

about five minutes after realising that Ms Burton might be in trouble. It was a safe working 

location with road access. In any event, it takes several minutes to bring a 600m long train to 

a full stop. 

[44] In respect to the Pacific National Shunting Policy, the applicant believed that it did not 

have any application to the movement of the train on 24 November 2014. He further said he 

was unaware of any connection between the prohibition notice and accessing the on-board 

toilet, while the train was in motion. 

[45] The applicant explained that if he was reinstated, he would ensure he was more 

vigilant while driving and ensure relief was organised when there was a likelihood of a trip 

reaching the twelve hour shift limit.








[2015] FWC 7466

17

[46] The applicant said he obtained alternative employment about 2-3 weeks after his 

dismissal. However, he was being paid about half what he had earned when employed by the 

respondent.

Mr Michael Potter

[47] Mr Potter is responsible for leading a team of 19 Drivers in the Southern Region of 

New South Wales, which includes Parkes and Sydney. He was only appointed to his current 

role in November 2014 and had never met the applicant. Mr Potter has been involved in 

several incident investigations.

[48] In December 2014, Mr Potter was asked to review the data logger from the 82 Class 

locomotive, driven by the applicant on 24 November 2014, in order to assist in the 

investigation of the incident. The data logger records a number of variables, including time, 

speed, distance, brake applications, whether the locomotive is powering, whether it is in 

dynamic brake and whether there is pressure in the brake cylinders. 

[49] Mr Potter explained that the data logger can be analysed in two ways. Firstly, by 

manually reviewing the data and analysing the information and providing a report. The data 

logger records:

(a) Into short log every one second when the locomotive is deemed to be moving;

(b) Into long log every 30 seconds whilst the locomotive is deemed to be moving;

(c) in the event of any of the following occurring since the last recording:

(i) a 12km/h variation in speed;

(ii) a 50kPa variation in brake pipe pressure; and/or

(iii) a change of state of any digital input other than vigilance control 

acknowledgement. 

[50] Secondly, by using a data reading program called Winlogs, it is possible to analyse the 

data on a computer to produce graphs and charts based on the variable being investigated. Mr 

Potter used both methods and identified four main issues with how the applicant operated the 

train on the night of 24 November 2014:

(a) speeding;

(b) increasing power while already speeding;

(c) failing to make the correct brake application; and








[2015] FWC 7466

18

(d) the distance travelled without the Co-Driver.

Speeding

[51] Speed limits are set by the Australian Rail Track Corporation (ARTC) and must be 

adhered to by all train Drivers. In this case, the maximum speed for Locomotive 8250 is 

80km/h. Mr Potter believed the applicant would have been well aware of this limit. as he is a 

trainer on this topic. It was Mr Potter’s evidence that after reviewing the data logger records, 

the applicant had travelled over 80km/h on 855 occasions, reaching speeds of 98km/h. 

[52] Mr Potter said that Drivers are never told to speed to meet schedules, as speeding is 

taken very seriously by Pacific National. Instances of speeding can be discovered in two ways 

– by random audits and from information reported by personnel working on the tracks.

[53] Mr Potter said that most common action taken against a Driver found to be speeding a 

few km/h above the limit, would be to call the Driver in to discuss the matter and then 

conduct random audits going forward. Mr Potter has conducted around 100 of these audits. 

Usually, they involve minor infringements, such as travelling 2-3km/h above the limit. This 

may arise from a Driver mismanaging the train through dips or increments. In this case, Mr 

Potter said he believed the applicant had deliberately and consciously exceeded the 80km/h 

limit, on numerous occasions, up to 98km/h. He had not seen a case like this before.

Increasing power while already speeding

[54] Mr Potter described the throttle and the means of increasing and decreasing power. 

The data logger disclosed the throttle was increased by the applicant, on numerous occasions, 

while he was already speeding that night.

Failing to make the correct brake application

[55] Mr Potter said that the train the applicant was operating had two locomotives – a lead 

locomotive and a trailing locomotive. Mr Potter was informed that the trailing locomotive had 

‘sticky’ brakes, which he attributed to a failure to make a correct brake application. This was 

something very well known to Drivers.

Distance travelled without Co-Driver








[2015] FWC 7466

19

[56] From reviewing the data logger, Mr Potter was able to conclude that from the time Ms 

Burton got off the train, until it came to a stop, the train had travelled 11kms, over 14 minutes.

[57] Although Mr Potter had firmly believed the data logger information was correct and 

very accurate, he had the wheel diameters measured and the data logger recalibrated 

accordingly. He had also cross-referenced the data logger information with GPS tracking. 

This confirmed the data logger information.

[58] While Mr Potter was not involved in the decision to terminate the applicant’s 

employment, he stated ‘it is clear to me he violated a number of safety procedures. I view this 

behaviour to be very serious and not the type of behaviour we want to see from a Driver 

Trainer.’

[59] Mr Potter responded specifically to aspects of the applicant’s evidence as follows:

(a) He did not know what the applicant meant by ‘pressure’ (to be on schedule). The 

message is very clear that the rules are not to be breached. Management understands 

that late running trains are often beyond a Driver’s control and, to his knowledge, no-

one had ever been dismissed for running behind schedule.

(b) All Drivers are aware that riding on locomotives or wagons outside of designated 

operating areas, while the train is in motion, is strictly prohibited and is a clear breach 

of the prohibition notice which has been in place for many years.

(c) Because of the above prohibition, you cannot go to the toilet on the 82 Class 

locomotive, while the train is moving. This is a broad prohibition, which obviously 

includes travelling, on or accessing the toilet, by means of the footplate.

(d) As the train had travelled 11.14km before stopping, he could not see how Ms 

Burton would have been found walking down the road, 1-2km away. 

(e) Mr Potter did not accept that the applicant did not deliberately speed, given the 

numerous occasions it was logged, including increasing the speed while already 

speeding. No attempts were made to slow the train down. Speeding could not have 

been related to gradients on the line, as the Broken Hill to Parkes line is predominantly 

flat. In any event, an experienced Driver should easily be able to manage the speed 

within the track limitations.

(f) Mr Potter would have expected a ‘few mismanagements’, but the multiple instances 

recorded of speeding over prolonged periods was unacceptable.








[2015] FWC 7466

20

(g) While Drivers are told to drive defensively, in most cases they are able to meet 

schedules by running a few km/h below the set limits.

[60] In cross examination, Mr Potter acknowledged that he had never driven a train on the 

Parkes to Broken Hill line. He agreed an 82 Class locomotive can travel up to 115km/h, but 

on the line to Broken Hill, a train with wagons had a speed limit of 80km/h. Mr O’Sullivan

showed Mr Potter the photos of the Driver control panel and ‘walked’ him through each of the 

dials, gauges, monitors, lights, etc. Mr Potter agreed that a Driver would be expected to 

monitor all of the gauges and check the side mirrors for dust or smoke behind the locomotive.

[61] Mr Potter agreed that the Co-Driver has a speed indicator directly in front of them and 

is required to alert the Driver of any excessive speeds. He was unaware if Ms Burton had 

raised the speed issue with the applicant on the night in question.

[62] Mr Potter confirmed that while it was possible to analyse any of the journeys 

undertaken by the applicant, he was not asked to review any other of his journeys to ascertain 

whether he may have been speeding on other occasions. Mr Potter said that of the 100 or so 

audits he had undertaken, none of them had involved the Parkes to Broken Hill line. 

[63] Mr Potter agreed that train speeds vary according to a range of factors, including the 

length of the train, loads, terrain, people working close to the tracks, etc. Even so, he would 

only expect minor speed variations for a loaded train of 600m length, travelling on relatively 

flat terrain. Small variations (slackness) can occur between the wagons and the locomotive 

itself (‘buff and draft forces’). Drivers are trained to handle these variations through 

manipulating the acceleration or speed of the train. Mr Potter accepted that there may be 

undulations on the Parkes to Broken Hill line, but this was very common throughout the 

network. 

[64] As to the prohibition notice, Mr Potter acknowledged that the notice related to 

shunting and the respondent’s policy defines shunting as not covering movements that are 

directly concerned with a ‘through’ train. As a result, Mr Potter agreed with the following 

proposition, when it was put to him:








[2015] FWC 7466

21

‘[G]iven your understanding of what had happened on the night in question, [you would 
agree] that this policy did not apply to what happened in November 2014 when Mr 
White was operating the Class 82 locomotive from Broken Hill to Parkes?’

[65] Mr Potter also agreed that there was no policy covering in-cab communications 

between Drivers and Co-Drivers in respect to the 82 Class locomotive, or generally. While Mr 

Potter claimed there was a rule that prohibited a Driver being outside the cabin while the train 

is in motion, he could not identify where this rule could be found. 

[66] Importantly, Mr Potter accepted a proposition that the noise of the brake release was 

such that Ms Burton would have been well aware that the brake had been released and she 

should not have left the train in such circumstances. It would also have been a ‘good idea’ 

that she take some form of portable communication with her (which she did not). As there is 

no policy or procedure on this point, Mr Potter agreed it would be a good idea to have a safe 

working policy on this subject.

[67] Mr Potter said it was possible, given all the known factors on the night, that the 

applicant was unaware of the actual speed the train was travelling at all times.

[68] In re-examination, Mr Potter gave more detailed information as to his history of 

driving trains for Pacific National for over ten years and earlier. In respect to the Parkes to 

Broken Hill line, all Drivers have access to curve and gradient diagrams. He had, in fact,

driven to Broken Hill, on several occasions, prior to commencing employment with Pacific 

National.

[69] Mr Potter developed his earlier evidence of the issues a Driver is required to be aware 

of at all times, which is just a normal part of a Driver’s duties. As to the small variations in 

speed caused by ‘slackness’, Mr Potter said that this would not result in a sudden spike in 

speed, which he could not identify from the data logger.

[70] Mr Potter reiterated that no person is permitted to ride outside a designated area of the 

train. He knew of only one particular circumstance on a specific locomotive (NR Class) where 

crew were allowed to ride on the steps in a specifically designated area. He was unsure if this 

was still permitted.








[2015] FWC 7466

22

[71] Mr Potter said that there was an onus on the train crew to communicate with each 

other at all times. Clarifying his earlier evidence, Mr Potter said that from his experience, a 

Driver would know that he was travelling at 98km/h when the speed limit was 80km/h.

Mr Robert Jarvis

[72] Mr Jarvis has worked for Pacific National (and its predecessors) in various capacities 

for over 31 years, although he has never performed any duties as a Train Driver. Mr Jarvis 

identified the applicant’s work history, qualifications and training. Driver Trainers are 

expected to be highly competent Drivers who must demonstrate correct safety and train-

handling skills. While they do not perform training all the time, they are required to drive 

trains while still providing an example to other Drivers.

[73] Mr Jarvis described the highly regulated safety environment in which Pacific National 

operates. Safety is paramount and is central to every decision Pacific National makes. The 

Company is audited externally and internally to ensure compliance with the regulatory 

framework and accreditation. All Drivers know their obligations and responsibilities in 

respect to safety, particularly the Driver Trainers. 

[74] Mr Jarvis described his understanding of the incident on 24 November 2014 and the 

disciplinary investigation which followed. It included two interviews with the applicant (28 

November and 15 December 2014). The disciplinary investigation was conducted by Mr Tony 

Halman, Bulk Regional Operations Manager. It involved Mr Potter analysing the data logger 

records. Mr Halman’s investigation report was finalised on 6 January 2015 and approved by 

the General Manager New South Wales/Victoria on 30 January 2015. 

[75] Mr Jarvis became directly involved in the matter after the completion of the 

investigation report. On 5 January 2015, the applicant was notified of the allegations made 

against him and invited to respond by 8 January 2015. On 12 January 2015, the applicant’s

solicitor sought further information, particularly in respect to the data logger and its 

calibration. Pacific National declined to provide the information at that stage. A show cause 

letter was hand delivered to the applicant on 2 February 2015. The applicant’s solicitor 

responded on 6 February 2015. 








[2015] FWC 7466

23

[76] On 10 February 2015, Mr Jarvis met with Mr Chris Saunders, Training Manager and 

Mr Robert King, Human Resources Business Partner to review all of the material and 

consider any appropriate disciplinary action. Mr Jarvis said he had carefully considered all the 

circumstances. He had no preconceived outcome. At this meeting, there was a vigorous 

discussion of the options available. Further meetings were held to discuss the matter and Mr 

Jarvis made, with Mr Saunders’ and Mr King’s endorsement, a decision to terminate the 

applicant’s employment on the following basis:

(a) the applicant’s behaviour breached the Code of Conduct;

(b) the applicant’s behaviour demonstrated a reckless violation of a number of Pacific 

National’s policies and procedures, as outlined below, which individually and 

collectively demonstrated a lack of a general commitment to work safety;

(c) as a Driver Trainer, being a position of trust and responsibility, the applicant took 

no action in relation to the multiple serious safety breaches which took place during 

the journey on 24 November 2014 and in his responses to the allegations put to him, 

failed to take any responsibility or acknowledge any wrongdoing in relation to the 

incident;

(d) Mr Jarvis concluded that the applicant did not understand his basic responsibility 

to work safely as a Driver. Further, he demonstrated that he did not understand the 

obligations of a Driver Trainer to educate others to work safely. 

(e) Mr Jarvis had serious concerns that, if the applicant was to continue as a Driver or 

a Driver Trainer, there was a high risk that he would repeat this unacceptable and 

unsafe behaviour; and

(f) the nature of the allegations were very serious and, given their seriousness, the 

applicant’s lack of a previous disciplinary history did not mitigate against his 

dismissal.

[77] The termination decision was reviewed and confirmed by the HR Team and then 

reviewed and confirmed by Mr Steven Cowan, General Manger New South Wales/Victoria 

and Ms Simone Hartley, General Manager Human Resources.

[78] In explaining his decision, Mr Jarvis said that there were two primary allegations 

proved against the applicant which were serious safety breaches – leaving Ms Burton behind 

and speeding. He dealt with each of the allegations as follows.








[2015] FWC 7466

24

Leaving Ms Burton behind

[79] Mr Jarvis believed that this incident revealed a severe lack of communication between 

the applicant and Ms Burton. Crew communication is essential to the Driver’s role. The 

applicant did not know where Ms Burton was, and had made assumptions about what she was 

doing, and where she was going.

[80] Secondly, the incident revealed a blatant disregard for Pacific National’s policy in 

relation to a prohibition on persons walking on the footplate while a train is in motion. Even if 

the applicant believed Ms Burton was going to the toilet on the train, he still caused the train 

to move. Mr Jarvis referred to the Prohibition Notice issued by Office of the National Rail 

Safety Regulator (ONRSR) banning riding on rolling stock (Annexure A) and Pacific 

National’s Procedure ‘Shunting by Pacific National Staff 006.R05’, which prohibits riding on 

footplates while the train is in motion. He said the applicant had breached both of these 

documents. 

[81] Mr Jarvis agreed Pacific National does not have a documented procedure which deals 

with employees using the toilet while on duty. He agreed there are routes where no break is 

scheduled. However, he understood most employees use the toilet when the train pulls up in a 

cross loop or if it is urgent, the train crew stops the train (although this is not common). Mr 

Jarvis was not aware of, and had never heard of any person going onto the footplate to use the 

toilet while the train is moving.

[82] Thirdly, the applicant had no clear understanding of what Ms Burton was doing before 

powering up the train. He travelled 11kms before bringing the train to a stop. It would have 

been very hard for him to see the vestibule from the cab and once she closed the door, he 

could not have known where she was, or where she had gone.

[83] Mr Jarvis said that the applicant had an obligation to ensure his own and Ms Burton’s 

safety and had failed to ensure his Co-Driver’s safety. This was a significant breach of the 

respondent’s Health and Safety Policy and Code of Conduct.

Speeding

[84] Mr Jarvis considered this allegation to be a very significant breach of safety. He said 

that exceeding speed limits increases the risk of an incident, including derailment, increased 








[2015] FWC 7466

25

the risk of damage to equipment and increased wear and damage to the track. In his 

experience, most speeding incidents are reported by track workers. In other cases, random 

audits may disclose instances of speeding. In this case, Mr Potter’s analysis of the data logger 

revealed 885 instances of speeding during the journey, including increasing the speed while 

already speeding. 

[85] Mr Jarvis said that while Pacific National permits a tolerance of 5% because of wheel 

wear and terrain, he noted that the applicant’s maximum speed was recorded at 98km/h. He 

concluded that this behaviour was both deliberate and inexcusable. He was in breach of the 

Train Handling Standards, Pacific National’s accreditation, the ARTC’s standards, the Health 

and Safety Policy and the Code of Conduct. 

[86] Mr Jarvis said that another employee was dismissed on 14 January 2015 for speeding 

throughout a journey in Victoria. While Pacific National was focused on improving on-time

performance and meeting customer expectations, it recognised that there are variables, 

including those outside of the Driver’s control, which impact on ‘on-time’ running. Mr Jarvis 

believed that, at no time had Pacific National compromised safety to ensure ‘on-time’

running. No employee has ever been disciplined for running behind schedule and 

arrangements can be made for a relief crew where a shift length is to be exceeded. Mr Jarvis 

said that there was no reason for any employee to feel pressured to ‘stick to a timetable’, as it 

is made clear that operations can stop if employees have any safety concerns.

[87] It was Mr Jarvis’ evidence that the other two issues of the applicant failing to make a 

correct brake application and allowing Ms Burton to smoke in the vestibule of the train 

(contrary to policy) were not factors he considered as greatly impacting on his decision to 

terminate the applicant’s employment. However, Mr Jarvis had been concerned with the 

applicant’s defensive response to these allegations and his refusal to acknowledge any role in 

the incident.

[88] Mr Jarvis claimed that ‘we’ had considered two disciplinary options; regression or 

termination of employment. Regression to a maximum of twelve months was rejected for the 

following reasons:








[2015] FWC 7466

26

(a) The applicant gave no indication that he was willing to change his behaviour. He 

did not accept responsibility for, or acknowledge the role his behaviour played in the 

incident;

(b) The respondent could not be satisfied that the applicant’s behaviour would be 

addressed;

(c) The applicant would be operating as a Driver in a rural area with limited 

supervision;

(d) Regardless of the length of the regression, the applicant would still be required to 

operate a train - the task he was performing when the incident occurred;

(e) The respondent could not see a way that the company could put adequate measures 

in place for the applicant to perform the role of Driver safely and without risk; and

(f) The respondent did not have confidence in the applicant’s ability to exercise his job 

safely.

[89] This left termination of employment as the only option. Mr Jarvis had considered the 

applicant’s 9½ years of service, without any disciplinary action being taken against him. 

However, he concluded that this did not sufficiently mitigate against the seriousness of the 

allegations. 

[90] While Mr Jarvis was not directly involved in the disciplinary action against Ms 

Burton, he understood she had been stood down and later returned to work on restricted 

duties, pending the outcome of an investigation. On 22 January 2015, she received two 

written warnings and a reduction in Classification to Level 2 Trainee Driver for six months. 

She was also placed on a performance improvement plan (PIP), but did not undertake it, as 

she did not return to work after receiving the warning letters. She resigned on 8 April 2015. 

[91] Mr Jarvis responded to the applicant’s evidence as follows:

(a) While the applicant was correct that there were no toilet breaks scheduled in the 

journey that day, there were opportunities to use the toilet while the train was stopped 

and while other trains ‘crossed’ over;

(b) while no relief crew was rostered that day, it would have been, if required (and 

subsequently was). This occurs, regardless of whether the crew is rostered or not and 

the first shift exceeds twelve hours;








[2015] FWC 7466

27

(c) he was unaware of any direction to the applicant to get the train ‘on-time’. Not all 

trains run ‘on-time’ and only 70% in the bulk area do so;

(d) Train crew must not, at any time, and regardless of the speed of the train, ride on 

the footplate while the train is in motion;

(e) Mr Jarvis was unaware of any common practice of train crew using the toilet while 

the train is moving. The issue is not using the toilet, but accessing the footplate outside 

the cabin;

(f) At no time, during the investigation, did the applicant express any remorse or regret 

for his involvement in the incident;

(g) Mr Jarvis had obtained information relevant to each of the other incidents the 

applicant had identified and where the employee was not dismissed. In some cases, the 

incident was not the fault of the Driver, or the Driver had been disciplined through 

formal warnings; and

(h) Mr Jarvis remained concerned that the applicant continued to deny, or take any 

responsibility for his actions.

[92] In further evidence in chief, Mr Jarvis explained that all Drivers would be aware of 

the respondent’s regulatory and accreditation framework, through internal training every two 

to three years, or as needed when legislation, policy or regulations changed. Mr Jarvis also 

said that because the Parramatta Management Centre monitors train movements across the

network, it would have been aware of the late departure from Broken Hill and planned 

alternative crewing arrangements.

[93] In cross examination, Mr Jarvis said that he had made the decision to terminate the 

applicant’s employment having considered the investigation report, the applicant’s response 

to the show cause letter, the records of interview and the applicant’s employment history.

[94] In dealing with the applicant leaving Ms Burton behind, Mr Jarvis said there had been 

no clear understanding between them, as to what Ms Burton was intending to do. He added 

that she should not have left the train, without telling the applicant. He accepted that it was 

illogical for the applicant to assume that Ms Burton would alight from a moving train or that 

she would do so having heard the noise from the release of the brake. Mr Jarvis agreed that 

the only logical conclusion (and the one the applicant formed) would have been that Ms 








[2015] FWC 7466

28

Burton was going to the toilet on the train. He believed the fault for non-communication 

rested with both parties, but agreed it primarily was Ms Burton’s fault.

[95] In answer to a question from me, Mr Jarvis understood that there was a conflict in the 

evidence as to what Ms Burton said she told the applicant and what he said she told him; that 

is, ‘I’m going to the toilet’, or ‘I’m going to the toilet, don’t leave without me’. Mr Jarvis 

agreed that he accepted Ms Burton’s version, but he had never actually spoken to her.

[96] In further cross examination, Mr Jarvis could not say whether the applicant had been 

shown the prohibition notice. Mr Jarvis explained that once such a notice is received, the 

employer may be required to change, or introduce a policy to reflect the prohibition’s 

conditions. This was done after the this notice was issued. Mr Jarvis agreed that this policy 

deals with shunting and it did not apply to the applicant’s operation of the train that night.

[97] In respect to leaving Ms Burton behind, Mr Jarvis claimed that this act was in breach 

of the network rules and the respondent’s accreditation to operate the train with a two person 

crew. At the time he considered this matter, he did not consider the applicant had purposely 

operated the train by himself. Mr Jarvis conceded the applicant could not have been in 

deliberate or conscious breach of the rules, because he had not known that Ms Burton had left 

the train. Mr Jarvis conceded that had it been known, at the time, that it was common practice 

at the Parkes Depot to use the toilet while the train was in motion, this would have been taken 

into consideration (in respect to the termination of employment).

[98] As to speeding, Mr Jarvis reiterated that the applicant must have been fully aware that 

the train was speeding. However, Mr Jarvis had understood that one of Ms Burton’s duties 

was to inform the applicant the train was speeding, but she did not do so. Mr Jarvis had not 

considered whether the applicant knew he was speeding that night, notwithstanding he had 

consistently said he had been unaware he was doing so. However, the conclusion he came to 

from the data logger was that the train was already speeding when the applicant increased the 

speed. There was no fault with the speedometer and the applicant must have known he was 

speeding. 

[99] Mr Jarvis acknowledged he had never driven the Parkes to Broken Hill line. He 

understood that in respect to the factors involved in handling a train, the undulating 








[2015] FWC 7466

29

environment is a factor, as is the requirement to monitor all the panel instruments, check the 

side mirrors and communicate with the Co-Driver. Mr Jarvis acknowledged that the outcome 

may have been different if it was accepted that the applicant was not purposely operating the 

train in excess of 80km/h. 

[100] In answer to questions from me, Mr Jarvis said that the applicant had no history of 

speeding, and no other performance issues. Mr Jarvis said that the employer did not examine 

other routes or times the applicant had driven to find out if he had any history of speeding 

which had not been reported. 

[101] In re-examination, it was Mr Jarvis’ evidence that there was a ‘general 

understanding’ from the shunting procedure and the prohibition notice, that persons are not to 

ride on the footplate, even when the locomotive is in motion. He added that it was not 

practical to have a policy or procedure to cover every circumstance. He equated this to a 

common understanding that seatbelts must be worn while cars are in motion. 

[102] Mr Jarvis explained that Driver Trainers have a different reporting line, because 

training is part of the planning structure and he looks after technical training for the business.

[103] Mr Jarvis said that the issue of not knowing where Ms Burton was, related to the 

requirements for a two person crew and to the safety issue that something might have 

happened to Ms Burton. He said there were only three places she could have been when not in 

the cabin – on the footplate, in the toilet or off the train.

[104] Mr Jarvis believed that the applicant’s role as a Driver Trainer was subject to higher 

expectations than a normal Driver, particularly in respect to safety. Pacific National 

concluded that it could not be satisfied that the applicant should be operating trains, given the 

severity of the incident, the applicant’s responses and his rejection of any responsibility for 

what had occurred.

SUBMISSIONS

[105] Both parties provided helpful and comprehensive written submissions which were 

supplemented orally on 29 July 2015. 








[2015] FWC 7466

30

For the applicant

[106] The applicant’s outline of submissions addressed the three principal allegations made 

against the applicant; (1) the incident at Yarrabandai (leaving Ms Burton behind); (2) 

speeding; and (3) allowing Ms Burton to smoke on the train.

Leaving Ms Burton behind

[107] It was said that as there was no scheduled toilet or meal breaks in the eleven hour, five 

minute trip, it would seem that Pacific National expected the crew to use the on-board toilet,

either while the train is in motion or during unscheduled stops, such as waiting for another 

train to ‘cross’ over. The applicant’s evidence was that it was a common practice among 

employees at Parkes to use the toilet, while the train is in motion, and he had, in fact, been 

told to do so when he first trained as a Driver. In addition, he had observed Ms Burton enter 

the on-board toilet earlier during the journey. When he heard her say, ‘I’m going for a pee’, 

he assumed she was using the on-board toilet. He also believed that by the time Ms Burton 

returned, the train would either not be moving or at most, moving at a walking pace.

[108] The submissions highlighted that the applicant was remorseful for allowing the train to 

move when he released the brakes. He accepted that this was not conducive to workplace 

safety, nor was Ms Burton leaving the train (although at that point he did not know that she 

had).

[109] In further written submissions, Mr O’Sullivan noted that the respondent raised three 

major issues, being poor communications, driving the train when someone could have been 

on the footplate and powering the train, without knowing where Ms Burton was.

[110] As to poor communication, Counsel relied on the applicant’s evidence that it was after 

he released the brakes, that Ms Burton that told him that she was going to the toilet. Because 

of the noise created by releasing the brakes, it was logical for him to assume she was using the 

on-board toilet. She left the train, without informing him, and with the knowledge that the 

train was about to start moving. Counsel observed that there was no policy applying to on-

board communications and the fault rested with Ms Burton for alighting from the train, 

knowing it was about to move and without informing the applicant.








[2015] FWC 7466

31

[111] In respect to the footplate access, Counsel noted that the breach of policy relied upon 

by the respondent was ‘Shunting by Pacific National Staff’. This policy does not apply to the 

circumstances of that night, because shunting does not involve a ‘through train’ and applies 

only to ‘shunting’. Both Mr Jarvis and Mr Potter conceded this to be the case.

[112] Furthermore, the applicant was not aware of any prohibition on the utilisation of the 

footplate, while the train is in motion. This was consistent with the information provided to 

him and to the ‘common practice’. 

[113] In respect to the applicant moving the train without two Drivers on-board, the 

Commission would be satisfied that the applicant believed Ms Burton was on-board and any 

transgression by him of the two crew policy, was not wilful. As soon as the applicant realised 

Ms Burton was not on-board, he took immediate steps to bring the train to a safe stop. 

Speeding

[114] It was submitted that the applicant felt pressured to bring the train in ‘on-time’ after its 

1 hour, 25 minute delay in leaving Broken Hill. He did not deliberately cause the train to 

speed (It was noted that the applicant was not provided with the data logger information at the 

time he prepared his statement on 11 May 2015).

[115] The applicant conceded that the train may have ‘got away from him’ on a few 

occasions. Counsel put that the Commission should take into account that:

 he was never warned by Ms Burton that he was speeding;

 he was distracted due to checking smoke from the wagons;

 the number of dials and gauges that must be observed; and

 there was a safety need to keep the train ‘stretched’.

 the evidence of Mr Potter was that it was possible that the applicant was not aware 

he was speeding.

Smoking

[116] The only person who was smoking was Ms Burton. The applicant had no supervisory 

oversight of her and could not direct her in her duties. There is no policy requiring an 

employee to report on another employee and when the applicant had, in fact, done so on a 








[2015] FWC 7466

32

previous occasion, nothing was done because the Parkes Depot employees, including 

managers, frequently smoke in non-smoking areas.

[117] The written submissions referred to the meaning of ‘harsh, unjust and unreasonable’ 

in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 (‘Byrne’). It was put that the 

consequences for the applicant’s dismissal were unduly ‘harsh’ given the following 

circumstances:

 His 9½ years of unblemished service;

 The incident involved a miscommunication;

 Acknowledgement that it was a poor decision for the applicant to allow the train to 

move while the Co-Driver would need to access the external footplate;

 The applicant had mitigated his loss, but his new employment only remunerated him

about half of his previous remuneration;

 The stress on his marriage, family and financial circumstances; and

 The unequal treatment for the breaches, in that Ms Burton was not dismissed.

[118] Counsel submitted that in order to be satisfied that there was a valid reason for 

dismissal; (See: Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 

(‘Selvachandran’), the Commission would need to be satisfied that:

(i) the applicant’s actions in leaving Ms Burton behind and speeding, did in fact 

constitute a breach of policy (however described);

(ii) the breach(es) were substantial;

(iii) the applicant was aware of the requirements of the relevant policy; and

(iv) the breach(es) were undertaken wilfully, i.e. that the applicant deliberately 

breached the policy. 

[119] Counsel submitted that the Commission could not be satisfied that the applicant’s 

actions, in relation to leaving Ms Burton behind, constituted a breach of any policy. To the 

extent that there was a breach of the Train Handling Standards in relation to speeding, the 

Commission should be satisfied that it was not substantial. Moreover, the applicant did not set 

out to wilfully breach this policy. 

[120] The written submissions took no issue with the procedural matters required to be taken 

into account in sub-sections (b) to (e) of s 387 of the Act.  Sub-sections (f) and (g) were 








[2015] FWC 7466

33

described as neutral. Mr O’Sullivan further submitted that even if there was a valid reason for 

dismissal, the dismissal may still be unfair; See: B, C and D v Australian Postal Corporation 

T/A Australia Post [2013] FWCFB 6191 (‘Australia Post’) at paras [41] and [42]. In applying 

these principles, the Commission would find that the applicant’s dismissal was still ‘harsh, 

unjust and unreasonable’. The applicant sought reinstatement. He denied that reinstatement 

would be inappropriate because of a breakdown in trust and confidence; See: Nguyen v 

Vietnamese Community in Australia [2014] FWCFB 7198 (‘Nguyen’)

[121] Mr O’Sullivan put that the respondent no more than asserts that the applicant was 

defensive in his responses and that the respondent could not be certain that his behaviour 

would change. These assertions ignore the applicant’s otherwise exemplary record and were 

premised on an incorrect belief that he had deliberately breached a number of Pacific 

National’s policies. Counsel submitted that the respondent had failed to meet its evidentiary 

onus that reinstatement is impracticable and a reinstatement order, with ancillary orders for 

lost remuneration and continuity of service, should be made. Alternatively, the maximum 

amount of compensation should be ordered. 

[122] In oral submissions, Mr O’Sullivan reiterated that there were four issues the 

Commission should be satisfied of, before finding there was a valid reason for the applicant’s 

dismissal. 

1. Did the two matters of leaving Ms Burton behind and speeding constitute a breach 

of the respondent’s policies?

2. Were the two matters substantial breaches?

3. Was the applicant aware of the policies he was said to have breached? 

4. Were the breaches undertaken wilfully?

[123] In respect to the first issue, Mr O’Sullivan relied on the concessions made by Mr Jarvis 

and Mr Potter that the shunting policy, said to have been breached by the applicant, was not 

applicable to the movement of the train that night. To the extent that reliance was also had by 

the respondent on the prohibition notice, it was the applicant’s evidence that he was unaware 

of any prohibition on using the on-board toilet, and it was not him who had breached the 

policy, in any event. Mr O’Sullivan also referred to the Driver Feedback forms, which 

confirmed that it was a common practice at Parkes, for Drivers to use the toilet, while the train 

is in motion.








[2015] FWC 7466

34

[124] As to the lack of communication between Ms Burton and the applicant, Mr O’Sullivan

firstly, observed that there is no actual policy going to the requirements in relation to on-board 

communications between Drivers. Secondly, the uncontested evidence was that Ms Burton 

must have heard the audible loud noise of the brakes being released before she left the train 

and would have known that the train was about to move. It was perfectly understandable that 

the applicant believed the only option she had was to use the on-board toilet.

[125] Mr O’Sullivan submitted that in the absence of any clear policy, the action by the 

applicant could not have been deliberate. But if there had been a breach, it was made by Ms 

Burton and not the applicant. It was also relevant that Ms Burton had not taken any 

communication equipment with her, knowing that she was alighting the train.

[126] As to the applicant travelling 11km before stopping the train, Mr O’Sullivan submitted 

that again there was no policy, but even if there was, the applicant was simply unaware that 

Ms Burton was off the train. As soon as he became aware, he took immediate stops to bring 

the train to a stop, in the safest possible manner. 

[127] As to the speeding allegation, Mr O’Sullivan accepted that there must have been a 

breach of policy if the train was travelling in excess of 80km/h. It was the applicant’s genuine 

belief that he had not deliberately breached the policy, but the train may have ‘gotten away 

from him occasionally’, when he was distracted with monitoring the other gauges and looking 

in the side mirrors. It was relevant that Ms Burton had not, at any time, informed him that the 

train was speeding. 

[128] As to increasing the power while already speeding, Mr O’Sullivan cited the evidence 

that notching up the throttle does not necessarily result in an increase in speed. The train 

needed to be ‘stretched’ with the undulating territory and when approaching an uphill 

gradient. Importantly, Mr Potter acknowledged that the applicant may not have been aware 

that he was speeding, and even using the respondent’s own matrix for discipline, a conclusion 

that the applicant had not wilfully breached any of Pacific National’s policies, would take the 

conclusion to ‘blameless’, resulting in no dismissal at all.








[2015] FWC 7466

35

[129] Mr O’Sullivan submitted that even if there was a valid reason for the applicant’s 

dismissal, the penalty of dismissal was disproportionate, after his almost ten years of 

unblemished service. Mr O’Sullivan confirmed that the applicant sought reinstatement as the 

primary remedy under the Act. For the respondent to make good its claim that reinstatement 

was impractical, because of a breakdown in trust and confidence in the employment 

relationship, it had the onus to satisfy the Commission that the incident on 24 November 

2014, was more than a mere aberration. The applicant’s evidence was that, if reinstated, he 

would pay far greater attention to the train’s speed and, if faced with a similar situation, he 

would reapply the brakes, if another person was intending to leave the cabin. Should the 

Commission find against reinstatement, the maximum amount of 26 weeks’ compensation, 

less remuneration earnt in alternative employment, should be ordered by the Commission. 

For the respondent

[130] Ms DeBoos, in written submissions, set out the relevant background to this matter and 

the applicable law. I need not repeat it. Unsurprisingly, Ms DeBoos submitted there was a 

valid reason for the applicant’s dismissal; See: Selvachandran. The dismissal was not ‘harsh, 

unjust or unreasonable’. Ms DeBoos highlighted the reasons for the applicant’s dismissal as 

set out in the letter of termination as follows:

1. The applicant was not aware of, and failed to check the precise location and safety 

of Ms Burton before departing, resulting in her being left behind; 

2. The applicant was aware that Ms Burton had left the locomotive on three to four 

occasions while the train was in motion, requiring Ms Burton to walk out onto the 

external footplate;

3. The applicant exceeded the maximum allowable track speed of 80km/h, on multiple 

occasions during the journey;

4. The applicant knowingly increased the speed of the train, while it was already 

travelling at, or above the maximum allowable track speed of 80km/h, on multiple 

occasions;

5. The applicant did not apply the minimum brake application of 70kPa; and

6. The applicant allowed Ms Burton to smoke in the vestibule of the locomotive, on 

three or four occasions.

[131] Ms DeBoos submitted that the Commission should be satisfied the alleged conduct 

above did occur and constituted a reckless violation of a number of the respondent’s policies. 








[2015] FWC 7466

36

Ms DeBoos noted the applicant’s qualifications  and experience and put that he would have 

been well aware that:

(a) clear communication was required to ensure that Ms Burton was safe;

(b) walking on the footplate, while the train is moving is prohibited;

(c) the train he was driving had a speed limit of 80km/h;

(d) a minimum brake application of 70kPa must be applied; and

(e) there is no smoking allowed in the workplace.

[132] Ms DeBoos then set out the evidence and circumstances giving rise to the positive 

findings of the respondent as to each of the allegations:

‘4.11 In relation to leaving Ms Burton behind, the Respondent submits as follows:

(a) the Respondent considered this action to be a serious and primary allegation 
…;

(b) the severe lack of communication could have had serious ramifications;

(c) the Applicant drove for 11.14 kilometres or approximately 14 minutes 
before bringing the train to a stop to locate Ms Burton …;

(d) the brake was released before Ms Burton got up to go to the toilet and, even 
if the Applicant believed she was going to the toilet on-board the train, causing 
the train to move was still a breach of procedure;

(e) the Applicant acknowledges that “it would have been safer” to reapply the 
brakes and wait until Ms Burton returned from the toilet …. No such 
acknowledgement was made during the investigation or disciplinary process. 
The Respondent submits that, not only would it have been safer, but that it was 
a requirement and the only course of action for Mr White to take. His statement 
implies that there are options when it comes to safety, however acting safely is 
not an option.

4.12 In relation to walking on the footplate while the train is in motion, the 
Respondent submits as follows:

(a) the Respondent considered this to be a significant and primary allegation 
…;

(b) the Applicant’s actions were a clear and deliberate breach of the express 
prohibition of walking on the footplate while the train is in motion …;

(c) the Applicant had not presented any evidence regarding the alleged 
“common practice” of going to the toilet while the train is in motion;








[2015] FWC 7466

37

(d) the Respondent’s witnesses are not aware of any “common practice” of 
going to the toilet while the train is in motion …;

(e) while there are no scheduled toilet breaks, there are opportunities during a 
trip for crew members to go to the toilet …;

(f) the Applicant states that he knew that Ms Burton would need to access the 
external footplate while the train was moving …. The Applicant attempts to 
mitigate the seriousness of this by stating that the footplate had a handrail, the 
distance is only 1 meter and that the train would be moving at walking pace if 
at all. Walking on the footplate while a train is in motion is clearly prohibited 
and is not an action that can be mitigated; and

(g) the Applicant concedes that the Incident was “certainly not safe workplace 
practice” ….

4.13 In relation to speeding, the Respondent submits as follows:

(a) the Respondent considered this action to be a significant and primary 
allegation … ;

(b) the Respondent has presented clear and factual evidence from a review of 
the data logger on the locomotive which reveals that the Applicant:

(i) caused the train to travel over the speed limit of 80km/hr on multiple 
occasions;

(ii) caused the train to reach a maximum speed of 98 km/hr which is 18 
km/hr over the speed limit; and

(iii) increased the notches while the train was already travelling over the 
speed limit;

…

(c) this evidence strongly supports the conclusion that the Applicant 
deliberately caused the train to speed and that the incidents of speeding were 
not mere mismanagements of the train …;

(d) the data logger was calibrated within specification and provided accurate 
data …;

(e) the Applicant claims that he “did not deliberately speed” … however this 
claim is not consistent with the evidence outlined above at 4.13(b);

4.14 In relation to the brake application, the Respondent submits as follows:

(a) the Respondent considered this action to be a secondary allegation …; and

(b) the Respondent [sic] breached the Train Handling Standards.








[2015] FWC 7466

38

4.15 In relation to Ms Burton smoking the Respondent submits as follows:

(a) the Respondent considered this to be a secondary allegation and one that 
did not determine whether the Applicant’s employment was terminated.’ 

[133] Ms DeBoos cited a number of the Commission’s authorities, which have consistently 

identified safety breaches, as being a valid reason for dismissal. These include: Blackney v 

CSR Limited T/A Viridian New World Glass [2011] FWA 3307; Carrick v Patrick Stevedores 

Holdings Pty Limited [2012] FWA 4480; Douglas v SSX Services Pty Ltd t/as The Australian 

Reinforcing Company [2010] FWA 2693; Brown v K&S Freighters Pty Ltd [2010] FWA 

1424; Australia Post; Macklyn v G&S Engineering Services Pty Ltd [2013] FWC 5303

(‘Macklyn’) and Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 (‘Parmalat’).

[134] Ms DeBoos submitted that the evidence of Mr Jarvis, supported the following 

conclusions:

(a) the applicant engaged in all of the conduct as alleged;

(b) the applicant breached a number of the respondent’s policies and procedures, in 

particular the Code of Conduct and the Health and Safety Policy;

(c) the applicant failed to take responsibility or acknowledge any wrongdoing; and

(d) the applicant could not be trusted to adhere to policies and procedures, particularly 

those concerning safety.

[135] Ms DeBoos dealt with each of the other criteria in sub-sections (b)-(g) of s 387 of the 

Act. As these matters are not materially significant to the outcome in this case or what is not 

in dispute, I will not repeat the facts here and will refer to these matters later in this decision. 

However, Ms DeBoos dealt with the other matters the Commission should take into account 

(s 387(h)) as being:

(a) the respondent’s safety obligations;

(b) the length of service of the applicant and his role;

(c) the applicant’s prospects  for other employment;

(d) the seriousness of the applicant’s conduct; and

(e) fairness between the applicant and other employees of the respondent.








[2015] FWC 7466

39

[136] Ms DeBoos submitted that the respondent has stringent obligations under the Work, 

Health and Safety Act and the National Rail Safety Regulations and takes these obligations 

very seriously. The applicant had a duty to be aware of, and comply with the respondent’s 

safety policies and procedures. The evidence disclosed that the applicant had difficulty in 

complying with these policies and procedures. He therefore put himself, and Ms Burton, at 

risk of serious injury. The applicant represents an unacceptable risk, to the respondent, its 

employees and members of the public.

[137] It was observed that as a Driver Trainer of three years’ standing, the applicant was 

responsible for coordinating, implementing and delivering training and competency 

assessments, which include safety policies and procedures. His classification states:

‘A Driver Trainer/Assessor occupies an important leadership position in the 
organisation, they will have already demonstrated and continue to demonstrate, 
superior competence and performance in all aspects of operations covered in Levels 1 
to 5 above.’

[138] The respondent believed the applicant’s conduct was inconsistent with the role of a 

Driver Trainer. It was said that the applicant’s alternative job prospects had been good and he 

obtained new employment shortly after his dismissal.

[139] Ms DeBoos said that while the applicant’s conduct was of itself serious enough to 

justify dismissal, his failure to acknowledge any wrongdoing, was of serious concern and 

compounded the seriousness of the conduct.

[140] In determining whether the applicant’s dismissal was unfair, Ms DeBoos said the 

Commission should have regard to the following:

(a) the safety procedures and policies with which the respondent’s employees are 

obliged to comply and the importance of those procedures and policies;

(b) the applicant’s direct involvement in the relevant conduct;

(c) the applicant was in a senior position where he was responsible for providing 

training to other employees on safety procedures. He was therefore required to 

demonstrate a very high level of adherence to safety;

(d) the conduct involved was serious and could have resulted in a serious workplace 

incident;








[2015] FWC 7466

40

(e) the applicant’s awareness of the safety procedures and policies of the respondent;

(f) the adherence to safety procedures and policies is regularly communicated  to 

employees of the respondent;

(g) the respondent applied the safety procedures and policies consistently;

(h) management’s careful consideration of the appropriate action to take; and

(i) the safety procedures and policies were not applied, or enforced in a discriminatory 

fashion.

[141] Ms DeBoos further elaborated on some of these matters. I note in particular the 

emphasis on Mr Jarvis’ evidence that he had taken into account:

 the applicant’s lack of any disciplinary history;

 the applicant’s length of service; and

 alternatives to dismissal.

However, these factors did not mitigate the severity of the safety breaches and the risk the 

applicant presented, if he remained in the workforce. 

[142] Ms DeBoos rejected the submission of inconsistent treatment between the applicant 

and Ms Burton. Ms Burton received two warnings and regression and was placed on a PIP. It 

was considered that the action was appropriate, given that she was working with a Driver 

Trainer at the time.

[143] Ms DeBoos re-emphasised that the evidence clearly supported a conclusion that the 

applicant’s dismissal was not ‘harsh, unreasonable or unjust’ and there were no discernible or 

significant factors evident in this case; See: Parmalat. 

[144] Ms DeBoos strongly opposed reinstatement in this case, based on the respondent’s loss 

of trust and confidence in the applicant, which she submitted was soundly and rationally 

based. See: Perkins v Grace Worldwide (Aust) Pty Ltd (1992) 72 IR 186 (‘Perkins’). She said 

that the Commission would be mindful of:

(a) the safety obligations the respondent has to its employees and the public;

(b) the ongoing concerns as to the applicant’s compliance with the respondent’s 

policies, particularly in relation to safety; and

(c) reinstatement of the applicant to his role as Driver Trainer or Driver will expose

the respondent to further risks.








[2015] FWC 7466

41

[145] If reinstatement was considered inappropriate, Ms DeBoos said that any order for 

compensation should not be made, because the applicant:

 was paid four weeks’ notice and all entitlements;

 obtained alternative employment soon after his dismissal; and

 was guilty of serious misconduct.

[146] In oral submissions, Ms DeBoos addressed the four key elements of the applicant’s 

case. As to speeding, Ms DeBoos noted that not only were there frequent periods of speeding, 

but also long and sustained periods of 20 and 21 minutes and up to 30 minutes, where the 

locomotive was travelling over 80km/h. Ms DeBoos submitted that while the applicant 

initially questioned the data logger records, he now concedes the records were accurate, that 

he was speeding and that speeding is inconsistent with the role of a Driver Trainer. Not only 

was he speeding, but he accepted he made a deliberate step to increase the throttle, thereby 

further accelerating. 

[147] Ms DeBoos said the applicant’s refusal to acknowledge these matters during the 

investigation weighed, in Mr Jarvis’ mind, against the applicant remaining employed. As one 

of the more experienced Drivers, the applicant could not use the excuse of inadvertent 

speeding, caused by being distracted by his other duties.

[148] Ms DeBoos observed that by reference to the disciplinary matrix, the term ‘reckless’ 

was used. There was evidence of a 5% tolerance on speed limits, for variances such as 

‘stretching’ and allowing for undulations and crests. Any Driver would be aware of these 

variances, most of all a Driver Trainer. But these variances do not explain the sustained and 

frequent instances of speeding over 80-84km/h. 

[149] As to leaving Ms Burton behind, Ms DeBoos conceded that there was no express 

policy which says a Driver must know where the Co-Driver is before moving the locomotive. 

However, that was not the point. The serious consequences for Ms Burton, involved obvious 

basic safety standards which are fundamental, well-known and understood by all employees. 

It is not required for them to be in writing. 








[2015] FWC 7466

42

[150] Ms DeBoos referred to the evidence that on hearing that Ms Burton was going to the 

toilet, he actually took positive steps to move the train by engaging the throttle  83 seconds 

later. It does not matter where Ms Burton was going – it could only have been two places –

accessing the footplate to the on-board toilet or getting off the train. Either way, by moving 

the train, there could have been catastrophic consequences for Ms Burton (which thankfully 

there were not). Ms DeBoos accepted Ms Burton’s error in not clearly communicating where 

she was going, but it was the applicant who moved the train.

[151] As to accessing the toilet by the footplate, Ms DeBoos agreed the prohibition notice 

and subsequent policy dealt only with shunting and not the movement of the train that night. 

Nevertheless, it must be obvious, and goes without saying, that travelling on the footplate,

while the train is moving anywhere, must be prohibited. The applicant acknowledged that 

going on to the footplate, while the train is in motion, is an extremely hazardous activity and 

he would never tell trainee Drivers they could do so. Such knowledge by the applicant must 

go to the conclusion that the prohibition of the practice, ‘goes without saying’.

[152] As to inconsistent treatment, Ms DeBoos submitted that it was the applicant’s own 

failures which led to his dismissal. He was supposed to be an exemplar of safety standards. 

Ms DeBoos stressed that the applicant did not lose his job because Ms Burton got off the train 

(for which she was disciplined), but because he did not know where she was and because he 

failed to reapply the brake, until he was satisfied she was safe.

[153] In referring to the Driver Feedback Forms, Ms DeBoos highlighted one response:

‘Having to stop trains every time someone needs to take a toilet break causes late 
running or problems with control.’

Ms DeBoos took this response as demonstrating that there is a requirement to stop the train,

every time someone needs a toilet break. Ms DeBoos also referred to the fact that the Class 82 

locomotive is the only one at Parkes which has an external toilet. Nine out of ten Drivers use 

the 48 Class, which has an internal toilet.

[154] Ms DeBoos relied on the evidence of Mr Potter that only minor variations in speed 

could be explained by ‘stretching’ or manoeuvring the train through gradients and crests. She 

added that Mr Jarvis had not resiled from his reasons for dismissing the applicant.








[2015] FWC 7466

43

[155] If the Commission formed the view that the dismissal was unfair, reinstatement was 

not practicable, given the requisite trust and confidence expected of its Drivers, particularly in 

respect to Driver Trainers. The applicant’s failure to accept any wrongdoing meant that the 

respondent was entitled to conclude that it could not be confident the applicant would not 

violate policy in the future.

[156] While answering questions from me, Ms DeBoos quoted from Mr Burton’s two 

records of interview as to what she said she told the applicant about going to the toilet. In 

neither record of interview does Ms Burton say: ‘I’m going to the toilet. Don’t leave without 

me’, yet these words appear in the Investigation Report, as a direct quote from Ms Burton. Ms 

DeBoos subsequently conceded that someone had incorporated words in the report that were 

never said by her. 

[157] In reply, Mr O’Sullivan said the applicant’s view throughout the investigation was 

that he genuinely believed he was not speeding. Until he could be assured the records were 

correct, he had not changed his view, but had then made appropriate concessions.

[158] Ms O’Sullivan said the evidence was clear that if the train is going up a hill, the power 

is increased as the speed must be increased.

[159] Mr O’Sullivan did not accept that it was the applicant’s direct actions which resulted 

in his dismissal. He observed that if Ms Burton had not left the train, she would not have been 

left behind.

CONSIDERATION

Legislative provisions and relevant principles

[160] In the applicant’s termination of employment letter and in its submissions, Pacific 

National referred to him acting in ‘reckless violation’ of its policies. That Pacific National 

considered the allegations against the applicant as serious misconduct cannot be doubted by 

the characterisation of the allegations in this way. That being so, it is relevant to observe that 

the Act and the Act’s Regulations make reference to the meaning of serious misconduct.








[2015] FWC 7466

44

[161] Section 12 of the Act states that the meaning of ‘serious misconduct’ has a meaning 

prescribed by the Regulations. These regulations are r 1.07(1) and (2) and are set out as 

follows:

1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious 
misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the 
following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the 
continuation of the contract of employment; 

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

[162] Given the nature of the allegations found to have been proven against the applicant 

and despite the respondent’s use of the word, ‘reckless’ it may be safely assumed that the 

applicant’s conduct was considered by the respondent to be both ‘wilful and deliberate’ and 

conduct that ‘causes serious and imminent risk to… the health or safety of a person’. I shall 

come back to these matters shortly, but before doing so, I emphasise the overarching statutory 

instruction, found in s 381(2) of the Act, which is expressed as follows:

‘(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the 
manner of deciding on and working out such remedies, are intended to ensure that a 
“fair go all round” is accorded to both the employer and employee concerned.’

Matters the Commission must take into account

[163] In any unfair dismissal case, brought under s 394 of the Act, in which the Commission 

is required to consider whether an employee’s dismissal was ‘harsh, unjust or unreasonable’,

all of the matters under s 387 of the Act, insofar as relevant, must be taken into account by the 

Commission. That section is expressed as follows:

387 Criteria for considering harshness etc.








[2015] FWC 7466

45

In considering whether it is satisfied that a dismissal was harsh, unjust or 
unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s 
capacity or conduct (including its effect on the safety and welfare of other 
employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason 
related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a 
support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance 
before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to 
impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management 
specialists or expertise in the enterprise would be likely to impact on the 
procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[164] The first and significant consideration is whether there was a ‘valid reason’ for the 

applicant’s dismissal. It is to that matter I now turn.

Meaning of ‘valid reason’

[165] Counsel for the applicant submitted that there were no valid reasons for the applicant’s 

dismissal in that the respondent was not able to prove that the applicant had engaged in the 

serious misconduct, as alleged. With this in view, the onus is on Pacific National to prove, to 

the Commission’s satisfaction and on the balance of probabilities (Briginshaw v Briginshaw

(1938) 60 CLR 336), that the misconduct had taken place; See: Culpeper v Intercontinental 

Ship Management Pty Ltd [2004] AIRC 261 and Yew v ACI Glass Packaging Pty Ltd (1996) 

71 IR 201.

[166] While decided in a different statutory context, the comments of Moore J in Edwards v 

Giudice [1999] FCA 1836 at paras [4] and [7] are apposite:








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‘4 In the present case the Full Bench concluded that Commissioner Tolley had failed to 
determine whether Ms Edwards was guilty of misconduct in the way alleged by Telstra 
Corporation Ltd and that the Commissioner should have done so as part of ascertaining 
whether her termination had been harsh, unjust or unreasonable. The approach of the 
Full Bench was, in my opinion, unexceptionable. When the reason for a termination 
is based on the misconduct of the employee, the Commission must, if it is an issue 
in proceedings challenging the termination, determine whether the conduct 
occurred. The obligation to make such a determination flows from 
s 170CG(3)(a). That is, the Commission must determine whether the alleged 

conduct took place and what it involved. Section 170CG(3) provides:

"In determining, for the purposes of the arbitration, whether a termination was 
harsh, unjust or unreasonable, the Commission must have regard to: 

(a) whether there was a valid reason for the termination related to the capacity 
or conduct of the employee or to the operational requirements of the 
employer's undertaking, establishment or service; and 

(b) whether the employee was notified of that reason; and 

(c) whether the employee was given an opportunity to respond to any reason 
related to the capacity or conduct of the employee; and 

(d) if the termination related to unsatisfactory performance by the employee -
whether the employee had been warned about that unsatisfactory performance 
before the termination; and 

(e) any other matters that the Commission considers relevant." 

...

7 The reason would be valid because the conduct occurred and justified termination. 
The reason might not be valid because the conduct did not occur or it did occur but did 
not justify termination. An employee may concede in an arbitration that the conduct 
took place because, for example, it involved a trivial misdemeanour. In those 
circumstances the employee might elect to contest the termination in the arbitration on 
the basis that the conduct took place but the conduct did not provide a valid reason and 
perhaps also by relying on the other grounds in paras (b) to (e). However an employee 
may not concede or admit, for the purposes of the arbitration, that the conduct 
occurred or may not be prepared to accept that the Commission could assume the 
conduct occurred. In either situation the employee would be putting in issue whether 
the conduct occurred. In my opinion the Commission must, in these circumstances, 
determine whether the conduct occurred as a step in resolving whether there was a 
valid reason. I do not see how the Commission can move straight to a consideration of 
whether termination was justified by assuming the conduct did occur. First the 
Commission would have failed to resolve an issue raised by and relied on by the 
employee, namely whether the conduct occurred at all. Second the Commission would 
have failed to make findings by reference to which a Full Bench might have to 
determine an appeal where the Commission had concluded the termination was harsh 
unjust or unreasonable on assumed facts and not facts found [my emphasis].’








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[167] In King v Freshmore (Vic) Pty Ltd, 17 March 2000, Print S4213 a Full Bench of the 

Australian Industrial Relations Commission (AIRC) said at paras [24], [26], [28] and [29]:

‘[24] The question of whether the alleged conduct took place and what it involved is to 
be determined by the Commission on the basis of the evidence in the proceedings 
before it. The test is not whether the employer believed, on reasonable grounds after 
sufficient enquiry, that the employee was guilty of the conduct which resulted in 
termination.

...

[26] As we have noted above, s.170CG(3)(a) obliges the Commission to make a 
finding as to whether there was a valid reason for the termination of employment. In 
circumstances where a reason for termination is based on the conduct of the employee 
the Commission must also determine whether the alleged conduct took place and what 
it involved.
...

[28] It is apparent from the above extract that his Honour answered the question of 
whether the alleged misconduct took place on the basis of whether it was reasonably 
open to the employer to conclude that the employee was guilty of the misconduct 
which resulted in termination. This is not the correct approach. The Commission's 
obligation is to determine, for itself and on the basis of the evidence in the 
proceedings before it, whether the alleged misconduct took place and what it 
involved.

[29] In our view the Senior Deputy President failed to determine for himself whether 
Mr King was guilty of misconduct in the way alleged by Freshmore and he should 
have done so as part of determining whether the termination had been harsh, unjust or 
unreasonable. When the reason for a termination is based on the misconduct of 
the employee the Commission must, if it is an issue in the proceedings challenging 
the termination, determine whether the conduct occurred. The absence of such a 
finding leads us to conclude that the member below failed to properly determine 
whether there was a valid reason for the termination of Mr King's employment [my 
emphasis].’

[168] The meaning of ‘valid reason’ in s 387(a) is drawn from the judgment of Northrop J in 

Selvachandran. This meaning has been applied by members of the Commission and its 

predecessors for many years: 

‘In its context in s 170DE(1), the adjective “valid” should be given the meaning of 
sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or 
prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same 
time the reasons must be valid in the context of the employee’s capacity or conduct or 
based upon the operational requirements of the employer’s business. Further, in 








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considering whether a reason is valid, it must be remembered that the requirement 
applies in the practical sphere of the relationship between an employer and an 
employee where each has rights and privileges and duties and obligations conferred 
and imposed on them. The provisions must “be applied in a practical, commonsense 
way to ensure that the employer and employee are treated fairly.’

[169] Even accepting that a finding of serious misconduct was open to Pacific National, it 

must not be confused with the statutory language. This still requires the Commission to 

determine whether there was a valid reason for dismissal (s 387(a)). In Royal Melbourne 

Institute of Technology v Asher [2010] FWAFB 1200, a Full Bench of Fair Work Australia 

(FWA, as the Commission then was) held at para [16]:

‘[16] In the circumstances of this matter the University purported to terminate Dr 
Asher’s employment for serious misconduct within the meaning of that term in the 
University’s enterprise agreement. If it successfully established that Dr Asher had 
engaged in serious misconduct it would necessarily follow that there was a valid 
reason for the dismissal. However, the converse is not true. As established by Annetta, 
the question that needed to be considered was whether there was a “valid reason” in 
the Selvachandran sense – whether the reason was sound, defensible or well founded. 
Whether it also amounted to serious misconduct may well be a factor relating to the 
overall characterisation of the termination but it was not an essential requirement in the 
determination of whether a valid reason exists.’

[170] In another case involving a breach of an employer’s safe working practices, an appeal 

Bench of FWA in Parmalat, found at para [24] and [26]:

‘[24] We do not consider that the decision discloses a clear line of reasoning leading to 
the decision reached. The existence of a valid reason is a very important consideration 
in any unfair dismissal case. The absence of a valid reason will almost invariably 
render the termination unfair. The finding of a valid reason is a very important 
consideration in establishing the fairness of a termination. Having found a valid 
reason for termination amounting to serious misconduct and compliance with the 
statutory requirements for procedural fairness it would only be if significant 
mitigating factors are present that a conclusion of harshness is open. We do not 
believe that any of the circumstances involved in this matter amount to such factors. 
...

[26] Mr Wililo’s conduct was found to be serious misconduct. It involved deliberate 
acts. We consider that characterising the actions as carelessness does not derogate 
from the seriousness of his action or the possible consequences. Further we do not 
believe that there was a sufficient basis to find that the employer could not apply its 
safety standards because of alleged actions in relation to other safety breaches. If it 
was entitled to take the action in this case the need to enforce its safety rules suggests 
that the resultant termination is not harsh [my emphasis].’ 








[2015] FWC 7466

49

Was the applicant’s conduct inconsistent with a continuation of the contract of 

employment?

[171] As mentioned earlier, Pacific National must have answered this question in the 

affirmative. If it is correct, then it seems to me that the applicant’s dismissal could not be 

found to be unfair. However, by use of the words, ‘wilful’ and ‘deliberate’ in the Act’s 

definition of serious misconduct and the respondent’s use of the words ‘reckless violation’, 

requires the Commission to consider the answer to this question in the context of a number of 

relevant  authorities. The question has sometimes been put this way – did the employee’s 

conduct disclose a wilful and deliberate intent to commit an act/s which strikes at the heart of 

the employment relationship?

[172] This question has been considered in a number of well-known authorities:  In North v 

Television Corporation Ltd (1976) 11 ALR 599, Franki J said at p 616:

‘It is clear that a single act of disobedience may be sufficient to justify dismissal on the 
ground of misconduct but it was held in Laws v London Chronicle (Indicator 
Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act 
must be such as to show that the employee was repudiating the contract of service or 
one of its essential conditions.’

[173] The 1959 English case referred to above makes it plain that an act of disobedience or 

misconduct (justifying dismissal) requires also that the disobedience must be ‘wilful’:

‘... I do, however, think (following the passages which I have already cited) that one act 
of disobedience or misconduct can justify dismissal only if it is of a nature which goes 
to show (in effect) that the servant is repudiating the contract, or one of its essential 
conditions; and for that reason, therefore, I think that one finds in the passages which I 
have read that the disobedience must at least have the quality that it is “wilful”:  it does 
(in other words) connote a deliberate flouting of the essential contractual conditions  
(P288).’

[174] In Concut Pty Ltd v Worrell (2000) 103 IR 160, his Honour, Kirby J, dealt with the 

ordinary relationship of the employer and employee at common law, where he said at para 

[51]:

‘The ordinary relationship of employer and employee at common law is one importing 
implied duties of loyalty, honesty, confidentiality and mutual trust.  At common law:








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“[c]conduct which in respect of important matters is incompatible with the 
fulfilment of an employee’s duty, or involves an opposition, or conflict 
between his interest and his duty to his employer, or impedes the faithful 
performance of his obligations, or is destructive of the necessary confidence 
between employer and employee, is a ground of dismissal.  ...[T]he conduct of 
the employee must itself involve the incompatibility, conflict, or impediment, 
or be destructive of confidence.  An actual repugnance between his acts and his 
relationship must be found.  It is not enough that ground for uneasiness as to its 
future conduct arises.”

In the present case, the findings at trial went beyond mere uneasiness as to the future.  
They necessitated, or at least warranted, a conclusion that the “confidence” essential to 
the relationship of employer and employee had been destroyed.  Instead of pursuing 
the interests of the company and its shareholders, the employee had pursued his own 
private interests.  Not only was the employee in breach of his duty of fidelity and trust 
owed to the employer, he had remained in breach of that duty to the date of the trial.  
Until that time he had not accounted for the benefits wrongly appropriated by him.  
Indeed, he had denied any wrongful appropriation.  The issue so tendered at the trial 
was determined against the employee.  He was then subject to the employer’s counter-
claim for an order to make a refund.  Such order was duly made at trial.  It was not 
contested on appeal.  Given his senior status in the company’s service and the nature 
and extent of the misconduct disclosed in the evidence and accepted by the primary 
judge, it was open to him to find that the employee had undermined the confidence 
essential to the ongoing relationship of employment.  Prima facie, this had afforded a 
legal justification for the employee’s summary dismissal.

It is, however, only the exceptional circumstances that an ordinary employer is entitled 
at common law to dismiss an employee summarily.  Whatever the position may be in 
relation to ‘isolated’ acts of negligence, incompetence or unsuitability, it cannot be 
disputed (statute or express contractual provision aside) that acts of dishonesty or 
similar conduct destructive of the mutual trust between the employer and employee, 
once discovered, ordinarily fall within the class of conduct which, without more, 
authorises summary dismissal.  Exceptions to this general position may exist for trivial 
breaches of the express or implied terms of the contract of employment.  Other 
exceptions may arise where the breaches are ancient in time and where they may have 
been waived in the past, although known to the employer.  Some breaches may be 
judged irrelevant to the duties of the particular employee and an ongoing relationship 
with the employer.  But these exceptional cases apart, the establishment of important, 
relevant instances of misconduct, such as dishonesty on the part of an employee like 
Mr Wells, will normally afford legal justification for summary dismissal.  Such a case 
will be classified as amounting to a relevant repudiation or renunciation by the 
employee of the employment contract, thus warranting summary dismissal.’

[175] In Farquharson v Qantas Airways Limited 10 August 2006, PR971685, the Full Bench 

of the AIRC referred, with approval, to the following analysis of Ross VP (as he then was) in 

Rose v Telstra, 4 December 1998, Print Q9292:








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‘[19] The issue, then, is whether the “out of hours” conduct involves a breach of an 
express or implied term of the contract of employment. Ross VP then considered the 
relevant implied terms:

An employee's implied duty of fidelity and good faith is particularly relevant 
here. One of the most concise and authoritative statements of what is generally 
encompassed by the duty of fidelity and good faith is to be found in Blyth 
Chemicals v Bushnells. In that case their Honours Dixon and McTiernan JJ 
said: 

“Conduct which in respect of important matters is incompatible with the 
fulfilment of an employee's duty. Or involves an opposition, or conflict 
between his interest and his duty to his employer, or impedes the 
faithful performance of his obligations, or is destructive of the 
necessary confidence between employer and employee, is a ground of 
dismissal ... But the conduct of the employee must itself involve the 
incompatibility, conflict, or impediment, or be destructive of confidence.
An actual repugnance between his acts and his relationship must be 
found. It is not enough that ground for uneasiness as to future conduct 
arises.”

In the same case their Honours Starke and Evatt JJ note: 

“The mere apprehension that an employee will act in a manner 
incompatible with the due and faithful performance of his duty affords 
no ground for dismissing him; he must be guilty of some conduct in 
itself incompatible with his duty and the confidential relation between 
himself and his employer.” 

... 

The obligations imposed by the common law duty of fidelity and good faith 
operate to prohibit acts outside of the employment which are inconsistent with 
the continuation of the employment relationship. But as Spender AJ observed 
in Cementaid (NSW) Pty Ltd v Chambers, ‘an actual repugnance between the 
employee's acts and his relationship with his employer must be found’.

More recently the implied term of fidelity and good faith has been expressed as 
an obligation to serve the employer loyally and not to act contrary to the 
employer's interest. In England this obligation appears to have been subsumed 
by the more general obligation of mutual trust and confidence. The implied 
term of mutual trust and confidence imposes reciprocal duties on the employee 
and employer that they shall not ‘without reasonable and proper cause, 
conduct themselves in a manner calculated and likely to destroy or seriously 
damage the relationship of confidence and trust between employer and 
employee’.

If conduct objectively considered is likely to cause serious damage to the 
relationship between employer and employee then a breach of the implied 
obligation may arise.








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There is some support for the proposition that the existence of an implied term 
of trust and confidence in contracts of employment has been accepted in 
Australia.

The words `trust and confidence' in this context are used in a contractual sense 
rather than as an ingredient of a personal relationship. As McCarry notes: 

“... the words `trust and confidence', just like the employee's reciprocal 
duties of ‘fidelity and good faith’, do not now refer to the ingredients of 
a personal relationship, even if they once did. The words now 
represent, in shorthand form, a bundle of legal rights which have more 
to do with modes of behaviour which allow work to proceed in a 
commercially and legally correct manner than with ingredients in an 
interpersonal relationship.”

The above statement is consistent with the shift in the nature of the employment 
relationship, from status to contract, referred to earlier. 

[20] His Honour then formulated a summary of principle which has now been applied 
on a number of occasions:

“It is clear that in certain circumstances an employee's employment may be 
validly terminated because of out of hours conduct. But such circumstances are 
limited: 

• the conduct must be such that, viewed objectively, it is likely to cause serious 
damage to the relationship between the employer and employee; or 
• the conduct damages the employer's interests; or 
• the conduct is incompatible with the employee’s duty as an employee. 

In essence the conduct complained of must be of such gravity or importance as 
to indicate a rejection or repudiation of the employment contract by the 
employee.”’

[176] While submitting that there were no valid reasons for the applicant’s dismissal, Mr 

O’Sullivan argued that even if there was a valid reason for the dismissal (I assume he 

particularly had in mind the speeding allegation), then dismissal was still ‘harsh’ and 

therefore unfair; See: Australia Post. This submission derives from the principle that each of 

the descriptors ‘harsh, unjust or unreasonable’ have their own discrete meaning, as set out in 

the well-known authority of Byrne, where McHugh and Gummow JJ said:

‘It may be that the termination is harsh but not unjust or unreasonable, unjust but not 
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the 
concepts will overlap. Thus, the one termination of employment may be unjust because 
the employee was not guilty of the misconduct on which the employer acted, may be 
unreasonable because it was decided upon inferences which could not reasonably have 








[2015] FWC 7466

53

been drawn from the material before the employer, and may be harsh in its 
consequences for the personal and economic situation of the employee or because it is 
disproportionate to the gravity of the misconduct in respect of which the employer 
acted’.

[177] Finally, it is necessary to observe that to the extent there were only fleeting references 

to minor procedural unfairness issues, I am satisfied that this is not a case where procedural 

unfairness considerations are a factor in the Commission’s determination of whether the 

applicant’s dismissal was ‘harsh, unreasonable or unjust’.

The two primary allegations

[178] Given that Pacific National’s case centred on what Mr Jarvis described as the ‘two 

primary allegations’ against the applicant, the main focus of my consideration is whether 

these two allegations constituted valid reasons for the applicant’s dismissal. These were:

 leaving Ms Burton behind; and

 speeding.

[179] I note Mr Jarvis said that the allegation of ‘failing to make a correct brake 

application’ did not greatly impact on his decision to terminate the applicant’s employment 

and that the allegation of allowing Ms Burton to smoke in the vestibule, on numerous 

occasions, did not go towards the decision to terminate the applicant’s employment. I turn 

then to the primary allegations. 

Leaving Ms Burton Behind

[180] There were a number of matters arising from the evidence in the proceeding (See: 

King v Freshmore), which, in my view, undermined the respondent’s finding that the 

applicant had left Ms Burton behind. They raise serious doubts that the positive finding on the 

allegation constituted a valid reason for the applicant’s dismissal.

[181] The most serious of these involve a conclusion found in the investigators’ report that 

Ms Burton had told the applicant that, ‘I’m going to the toilet, don’t leave without me’. On its 

face, this might seem an insignificant and innocuous conflict in what the applicant understood 

Ms Burton to have said. However, in my view, it goes to the heart of one of the fundamental 

reasons for the applicant’s dismissal. Let me explain.








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[182] The applicant maintained that he believed Ms Burton  was intending to use the on-

board toilet. His evidence was that Ms Burton merely said, ‘I’m going for a pee.’ Given that 

she had done so previously and that there was a common practice at the Parkes depot for 

employees to use the on-board toilet, while the train was moving (presumably as it was 

acknowledged, there were no scheduled toilet breaks in a journey of 11 hours, 5 minutes), it 

was entirely understandable that the applicant believed Ms Burton had not left the train at all. 

Accepting the reality that Ms Burton had actually got off the train, how could it possibly be 

said that the applicant knowingly, consciously and deliberately, or even recklessly, 

disregarded Ms Burton’s safety by starting the train and leaving her behind? But that is not 

the end of the matter.

[183] Ms Burton was not called to give evidence in the proceeding. However, Ms Burton 

was interviewed twice by the respondent and her version of the conversation with the 

applicant changed. In her first interview on 27 November 2014, she said:

‘The train was travelling downhill and Peter the Driver said that he could smell smoke. 
Peter decided to stop the train and got off to have a look at the rear locomotive. I 
stayed in the cab of the lead locomotive in case train control called in and asked why 
we had stopped. Peter came back into the cab about 10 to 15 minutes later. I asked 
him if everything was okay. He said he could not find anything wrong. I was then 
looking at Peter in the eyes when I said to him that I was getting off the locomotive to 
go to the toilet. I assumed Peter understood me as were both looking at each other but 
he did not nod or say anything to indicate understanding. As I was doing my business I 
noticed the train starting to roll forward and I assumed that Peter had released the 
brakes and, because were on the hill, the train started to roll.’

[184] In the second interview on 15 December 2014, she was asked:

‘One of the questions I asked you in the previous record of interview was if there was 
anything you would like to add to assist the investigation and you said, “No, however, 
I think there was some misunderstanding between myself and the acting Driver 
Trainer.” What did you mean by that statement?

In relation to the communication part, he had just not heard all of what I said when I 
said I was going to the toilet.’

[185] These responses became summaries in the investigator’s report. Her verbatim 

interviews were not tendered in the proceeding. Mr Jarvis accepted that there were conflicting 

versions of what Ms Burton had said to the applicant. Notwithstanding that it was critical to 

resolve this conflict, not only between what the applicant had said Ms Burton had said, but the 








[2015] FWC 7466

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conflict between her first and second interview, Mr Jarvis relied only on the words in the 

investigator’s report, which were, ‘I am going to the toilet, don’t leave without me.’

[186] Incredibly, neither these words, nor anything like them in the second part of the quote 

(‘Don’t leave without me’), were never said by Ms Burton in either of her interviews. How 

did they come to appear in the official investigator’s report? When pressed by the 

Commission, Ms DeBoos properly accepted that someone (unknown) had incorporated words 

into the report which were never said by Ms Burton. But, more importantly, these fictitious 

words distorted the report, such as to convey the negative impression that the applicant knew 

Ms Burton had left the train, and deliberately started the train and left without her.

[187] This error in the report, was, in my view, a critical one. While it may well have been 

perfectly innocent, it was nevertheless the most important basis on which Mr Jarvis’ decision 

on the first allegation was made, because he had not personally interviewed the applicant or 

Ms Burton. In my opinion, reliance on such a critical error in the report, guaranteed Mr Jarvis’ 

decision miscarried and cannot be allowed to stand. 

[188] Before leaving this point, I would like to say something about the tendered Driver 

Feedback Forms. 

[189] Mr O’Sullivan relied on Driver Feedback Forms from the Parkes depot. The forms 

were part of a wider project undertaken by Pacific National, dated 1 May 2015. Survey 

responses were provided anonymously. These forms had arisen from a survey proposed by the 

respondent, as a direct consequence of the 24 November 2014 incident involving the 

applicant. 

[190] Ms DeBoos opposed the tender of the material on the basis that the respondent would 

have no opportunity to test the anonymous responses and, in any event, they were not relied 

on in the process leading to the applicant’s dismissal. I overruled Ms DeBoos’ objections and 

admitted the documents. As I did then, I consider the forms relevant to establishing an alleged 

common practice reported by the applicant, but disavowed by the respondent, that Drivers 

leave the cab, while the train is in motion, to use the toilet. 








[2015] FWC 7466

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[191] I would wish to emphasise that the unknown management author of the general 

observations derived from the Parkes Driver Feedback Forms and discussions concluded as 

follows:

‘ Driver trainer discussion
 Drivers leaving the cab while the unit is in motion to go to the toilet is a 

common practice
 Drivers are trained to put the loco in idle in certain sections of the journey 

and go to the toilet
 Going to the toilet between wagons is common especially at loading sites as 

there isn’t much in the way of privacy (no bushes etc).’

[192] I reiterate that this project was undertaken by management and overseen by a project 

group team and had been deemed necessary as a direct result of the incident involving the 

applicant on 24 November 2014. The above quotations were not direct quotes from the Driver

Trainers, but general comments prepared, presumably by someone from the management 

project team. The comments are entirely consistent with the applicant’s evidence, as to the 

common practice that the applicant believed Ms Burton was undertaking on the night in 

question (although obviously she did not stay on the train).

[193] If it is accepted - as it surely must be - that, firstly, the applicant was unaware that Ms 

Burton had left the train and, secondly, it was a common practice for employees to go to the 

toilet while the train is in motion, then it is difficult to understand how the respondent came to 

the view that the applicant was in breach of its Health and Safety Policy and Code of 

Conduct. It is an even longer ‘bow to draw’ to submit that the applicant was in ‘reckless 

violation’ of the policies. The word, ‘Reckless’ is defined in the Macquarie Dictionary as 

‘utterly careless of the consequences of action’. I reject such a characterisation of this 

conduct.

[194] Moreover, to make good its allegation of leaving Ms Burton behind, the respondent 

relied on the Prohibition Notice issued by National Rail Safety Regulator and its own policy 

‘Shunting by Pacific National Staff. This might have appeared to be logical if it had not 

emerged in the evidence, that the Prohibition Notice and the consequential Shunting Policy,

had not even applied to the incident involving the applicant and Ms Burton on the night of the 

24 November 2014. Both Mr Potter and Mr Jarvis conceded, properly in my view, that the 








[2015] FWC 7466

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policy could not have applied to the incident because the shunting policy does not apply to 

‘through’ train movements.

[195] That being so, and to put it bluntly, the applicant was found to have breached a policy 

which did not exist. Viewed in this way, such a conclusion could not possibly be 

characterised as a valid reason for dismissal. I also note Mr Jarvis’ evidence, which he gave 

frankly and honestly, that:

(a) the release of the brake was not a conscious breach of policy if the applicant 

believed Ms Burton was still on-board the train;

(b) had he known it was a common practice to use the toilet while the train was in 

motion, this would have been taken into account. Of course, it obviously was not; and

(c) the applicant could not have consciously breached the rules on two person crewing 

because he did not know Ms Burton had left the train (See: PN1048). 

[196] While there may be some logical attraction to the view that if the shunting policy 

prohibited travelling on the footplate, then it made sense that doing so while the train was in 

motion was also prohibited (Mr Jarvis described the view as a ‘general understanding’), there 

is, in my opinion, a positive need for a clear and express procedure or policy that such a 

prohibition applies to all circumstances, not just shunting. ‘General understandings’ or an 

excuse that it is not possible to have a policy covering every circumstance, are utterly 

inappropriate where very serious safety consequences (including death) might result from 

what is acknowledged as a serious safety risk. 

Speeding

[197] The thrust of the applicant’s evidence was that he did not realise he was speeding. 

While I accept his belief was genuine, I find it difficult to accept that a Driver Trainer of 9½ 

years experience would not have been aware that he had exceeded the speed limit on 

numerous occasions, during that journey. Importantly, I note the applicant’s evidence that 

Drivers, to some extent, drive a train ‘by feel’ and experience. The evidence of Mr Potter’s 

analysis of the data logger records, which was not seriously challenged, demonstrated not 

only that the applicant was speeding, but he increased the speed of the train by ratcheting the 

throttle, while already travelling above the speed limit. There is simply no escaping the 

veracity of the data logger records.








[2015] FWC 7466

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[198] Explanatory submissions were put that the applicant’s attention was distracted at times 

by:

 the various other instruments and gauges he was required to monitor;

 checking for smoke or dust in the rear side view mirrors; and

 communicating with the Co-Driver.

It was further said that the applicant had not driven this route for 18 months and the train had 

20 more wagons than was usually the case.

[199] I accept the evidence of Mr Jarvis and Mr Potter that these duties and observations are 

normal expectations for any Driver, let alone an experienced Driver Trainer, and, given the 

importance placed on maintaining set speed limits, they do not absolve, or explain away a 

Driver’s inadvertent speeding.

[200] Nor do I think the applicant’s speeding can be explained by the Driver’s train handling 

techniques to accommodate variations, such as gradients or ‘stretching of the wagons. Much 

was said about these matters in evidence. Given the frequency and extent of the speeding 

instances (up to 98km/h and an average of 86km/h, from my understanding of the evidence, 

the small variations could not possibly be explained by such a pattern of speeding at these 

high speeds.

[201] It was also argued – albeit, not with much vigour – that the applicant may have been 

under pressure to make up time and avoid having a relief crew being sent after 12 hours of the 

shift. True it was that the train departed Broken Hill 1 hour, 25 minutes late, but there was no 

evidence that the applicant was instructed, or directed to make up the lost time. On the 

contrary , I accept the evidence that Pacific National correctly does not compromise safety for 

on-time running and there are well known and easily accommodated arrangements for 

ensuring relief crews are available when delays occurred.

[202] Moreover, there was no evidence that the applicant or any other Driver, for that 

matter, has been disciplined for late running or arranging for relief crews to take over where 

usual time expectations are not met, particularly in circumstances beyond the Driver’s control 

(as is the case here). 








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[203] At this point, I record my findings that I found the applicant, Mr Jarvis and Mr Potter 

to be open and honest witnesses, whose evidence was thoughtfully and carefully given. No 

witness was evasive or coloured their evidence to suit their case. While there were some 

disagreements about degree, intentions or beliefs, I am satisfied that none of the witnesses 

were motivated by a desire to score points, ridicule or otherwise criticise the other side’s 

genuinely held views.

[204] That said, I am satisfied that the respondent’s allegation that the applicant was in 

breach of the Pacific National Safe Handling Procedures in respect to speeding, has been 

made out. However, that is not the end of the matter, as I have other concerns with the 

respondent’s handling of the investigation and considerations going to whether a positive 

finding as to this allegation justified the applicant’s dismissal.

[205] Firstly, I must admit that when I first read that the applicant was found to have been 

speeding on 885 occasions in an 11 hour journey, I wondered how that was realistically 

possible. I was imagining some wildly out of control rollercoaster. Nevertheless, this finding 

was, understandably, very troubling for the applicant when first told of it. It is little wonder 

that he sought further details. Of course, during the evidence, the data logger records were 

explained. As I understand it, the data is recorded in short segments of a few seconds, 

meaning as each point is passed and the speed is maintained, it will record the same speed 

over and over again, thereby resulting in numerous ‘hits’ of the same speed. This explains the 

numerous occasions of speeding in very short spaces of time.

[206] In my view, the technical identification of 885 instances of speeding plainly overstated 

the instances of speeding, thereby exaggerating the applicant’s culpability. It is little wonder 

that, through his solicitor, when the applicant asked for details of the data logger records and 

how the information is collected, he said: 

‘3.1 The train was in motion for approximately 600 minutes, and it is not possible that 
the train could have exceeded the speed limit on 885 occasions in that time.

3.2 It is not possible to get a train over and under the speed limit more than once in 
every minute of the journey.’

[207] I note at this point, and although not decisive, Mr Potter agreed that it was possible the 

applicant would not have been aware of the speed of the train at all times.








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[208] Secondly, in answers to questions from me, Mr Potter agreed that it would have been 

possible to audit and analyse the applicant’s driving record on other routes, but no one had 

asked him to do so. My purpose in asking these questions was to establish (if it were possible, 

and it was) if the applicant, after 9½ years driving, had a habit of speeding or even whether 

there were other examples of speeding. Might this have been a purely ‘one-off’ incident?

[209] In my judgement, Pacific National could have easily examined a random number of 

the applicant’s routes to answer this question and should have done so. As it did not, the only 

evidence before the Commission is that the incidents of speeding on 24 November 2014, were 

an isolated ‘one off’ infringement. That the applicant had an otherwise unblemished 

disciplinary record in 9½ years, was, in my view, not given sufficient weight in assessing the 

seriousness of the incident and the potential for future infringement, which, of course, is one 

of the factors, Pacific National submits weighs against the applicant’s reinstatement. I shall 

return to the issue of remedy later.

[210] Thirdly, Ms Burton was given a formal warning and a regress of six months for the 

following breaches that night:

‘ Failed to alert the Driver Mr White, to the numerous instances where he was 
speeding as is required of co Drivers as per Pacific National Train Handling 
Standard THS_01_R04, 4.4 and ARTC General Instructions.

 Refused to fully answer the question in your second interview on 15 December 2014 
explaining why you did not alert the Driver of the speeding occurrences.’

[211] In my view, Ms Burton was at least as culpable as the applicant for the speeding train 

due to her failure to alert him, at any point, that he was speeding. Relevantly, Ms Burton was 

not being trained. She was a fully qualified Driver and was seated directly in front of the 

panel, which included the train’s speedometer. There was no suggestion, let alone evidence, 

offered by the respondent, that Ms Burton had told the applicant he was speeding. I accept the 

applicant’s evidence that she had not. This was an essential, if not the primary duty of a Co-

Driver in these circumstances. Ms Burton, of course, was not dismissed.

[212] This raises, in my mind, the notion of unequal or inconsistent treatment, particularly 

emphasised by my findings as to the applicant’s involvement in Ms Burton leaving the train. 








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In this respect, I refer to a decision of Lawler VP in Mihajlovski v I R Cootes Pty Ltd, 24 

February 2004, PR943954, wherein His Honour warned against the Commission too readily 

accepting argument as to inconsistent treatment of employees in unfair dismissal cases. At 

paras [51]-[53], His Honour said:

‘[51] It is undoubtedly the case that inconsistent treatment of different employees can 
lead to the termination of the employment of a particular employee being found to be 
harsh, unjust or unreasonable. An example is provided by the decision in Mollinger v 
National Jet Systems where only one of two pilots flying a plane was terminated for a 
failure to follow procedure for which both were responsible and where there were no 
subjective circumstances justifying leniency being extended to one pilot but not the 
other.

[52] However, the Commission must approach arguments based upon the inconsistent
treatment of different employees with great care. In particular, before any significant 
weight can be attached to inconsistent treatment, it must be demonstrated that the 
Commission is relevantly comparing "like with like". That is, there must be sufficient 
evidence to demonstrate that the circumstances of the Applicant and the circumstances 
of the other employees with whom the Applicant is being compared, are sufficiently 
similar to make the comparison valid. In substance, there must be sufficient evidence 
to permit a finding that the treatment of the Applicant can properly be categorised as 
discriminatory.

[53] There may be many reasons why an employer may exercise a discretion not to 
terminate the employment of a particular employee for conduct that would otherwise 
justify the termination of their employment. There may be all sorts of circumstances 
applying in the case of a particular individual which may cause an employer to take a 
more compassionate or lenient approach with that individual. If disparate treatment of 
employees is too readily accepted as a basis for finding that the termination of the 
employment of the particular employee is harsh, unjust or unreasonable this would act 
as a disincentive to employers in showing leniency or compassion to employees guilty 
of misbehaviour or misconduct: a most undesirable consequence. If other employees, 
in the context of defending an unfair dismissal application, are able too readily to take 
advantage of such compassion or leniency this would have the natural consequence of 
inducing an employer to resist impulses of compassion and leniency in deserving cases 
[endnote omitted].’

[213] After earnest deliberation of all of the relevant facts and circumstances of this case, I 

consider that the inconsistent treatment of the applicant, compared to Ms Burton, is a factor 

weighing in favour of a finding of the applicant’s dismissal being ‘unreasonable’.

[214] Fourthly, during the investigation, the applicant refused to concede he had done 

anything wrong. I accept that the respondent was entitled to view this with some concern and 

alarm. Similarly, I too would take a rather dim view of an employee who, in the face of 








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incontrovertible evidence, fails to accept any responsibility for any wrongdoing or 

misconduct. However, given what I have earlier found in respect to the allegations against the 

applicant, the initial reluctance of Pacific National to provide the data logger records to him 

and the claim that he was speeding on 885 occasions, it is perhaps understandable that he 

initially took an overly defensive and disbelieving approach to what he was accused of.

[215] That said, I repeat that I found the applicant to be a sincere and thoughtful witness 

who was not at all defensive, but rather, he was querying and incredulous at what had been 

alleged against him. Even so, he now acknowledges that he was speeding. He expressed 

remorse and contrition for his actions. He gave an undertaking to be more diligent in his 

duties, particularly in respect to safety, should he be reinstated. 

[216] Lastly, I will say something about the smoking allegation. The policy says, ‘You must 

not smoke at any time whilst on and around Pacific National premises and equipment.’ It was 

accepted that the applicant had no supervisory function over Ms Burton and no power to 

direct her to do anything; let alone not to smoke. She had not sought his permission or opinion 

to do so. Given the policy is expressed in respect to personal responsibility to comply with the 

no smoking policy (and the applicant was obviously not smoking himself), it is a nonsense to 

allege that he had breached the policy. That said, Mr Jarvis wisely acknowledged that this 

matter was not considered in the decision to terminate the applicant’s employment.

[217] From my earlier consideration of the evidence in this case and the matters which are 

not factually in dispute, it should be apparent where the Commission sits in respect to each of 

the matters I am required to take into account under s 387 of the Act. Nevertheless, let me 

formally elaborate in respect to each of the s 387 criteria. 

Whether was a valid reason for the applicant’s dismissal (s 387(a))

[218] The Commission finds that:

(a) the allegation of fault for leaving Ms Burton behind was not made out and does not 

constitute a valid reason for the applicant’s dismissal;

(b) the allegation of speeding has been proven, and would constitute a valid reason for 

dismissal; and

(c) the allegation of permitting Ms Burton to smoke on the train was not made out and 

does not constitute a valid reason for dismissal.








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Whether the applicant was notified of the reason for his dismissal (s 387(b))

[219] The applicant was provided with a show cause letter on 2 February 2015 and was 

dismissed on 24 February 2014. This factor is a neutral one in this case.

Whether the applicant was given an opportunity to respond (s 387(c))

[220] In accordance with the relatively comprehensive procedures for dealing with 

disciplinary issues, Pacific National gave the applicant an opportunity to respond to the 

allegations in two disciplinary interviews and also through his solicitor. 

[221] To the extent Pacific National did not initially provide the applicant with details of the 

data logger records (which seems inexplicable to me), that is the only criticism which might 

be levelled against the respondent in respect to procedural unfairness. However, it is not a 

significant matter, save for the fact the applicant might have been less defensive in his 

disciplinary meetings, had he been fully appraised of the details of the evidence against him.

Whether there was any unreasonable refusal by Pacific National to allow the applicant 

to have a support person present (s 387(d))

[222] There was no refusal (let alone an unreasonable refusal) by the employer to allow the 

applicant to have a support person present at the discussions relating to his dismissal. This is a 

neutral consideration in this case.

Unsatisfactory performance (s 387(e))

[223] This factor is not relevant to a dismissal based on allegations of serious misconduct.

The degree to which the size of the employer’s enterprise and access to human resources 

management specialists was likely to impact on the procedures in effecting the dismissal 

(ss 387(f) and (g))

[224] Pacific National is a large employer with over many thousands of employees and a 

team of dedicated human resources management specialists. The process adopted by Pacific 

National reflected in its size and industrial relations experience is not a factor weighing 

against the respondent in this case. 

Other relevant matters (s 387(h))








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[225] Lest it be misunderstood, I reaffirm that safety 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 greater, where fast moving trains and potentially dangerous 

infrastructure, are a daily feature of the working environment. It is for the reason that this 

Commission and its predecessors have invariably considered a serious breach of safety 

policies or procedures, as a valid reason for an employee’s dismissal. The Commission will 

not lightly interfere with the employer’s decision to dismiss an employee in such 

circumstances. 

[226] So much so is also evident by the Act’s definition of serious misconduct earlier 

referred to. In addition, I respectfully agree with the helpful commentary of Asbury DP in 

Macklyn at para [66]:

‘[66] A serious breach of a workplace health and safety policy or an incident where an 
employee places health and safety at risk, will generally constitute a valid reason for 
dismissal. This is particularly so when the breach is wilful or reckless and is 
committed in circumstances where the employee is aware of the employer’s policy and 
the risks associated with his or her conduct. In my view the Commission should not 
lightly interfere with the right of an employer to establish, maintain and enforce 
workplace health and safety policies, through the use of appropriate disciplinary 
processes.’

I also acknowledge the numerous authorities cited by Ms DeBoos which have recognised this 

principle (see para [133]).

[227] That said, there will be rare and isolated examples where the Commission will 

intervene. I consider this case to be one such instance. For all the mitigating factors, I have 

discussed earlier in this decision, I consider that the applicant’s dismissal on 24 February 

2014 was ‘harsh’ and ‘unreasonable’ within the meaning of s 387 of the Act.

Appropriate remedy

[228] The remedies for an unfair dismissal are set out at s 390 of the Act as follows:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the 
payment of compensation to a person, if:








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(a) the FWC is satisfied that the person was protected from unfair dismissal 
(see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under 
section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in 
all the circumstances of the case.

[229] It is plain from a reading of s 390(3) above that the Parliament intended to give 

primacy to reinstatement in circumstances where an employee has been unfairly dismissed 

and the Commission is required to exercise a discretion as to the making of any orders in 

respect to remedy. Lest there be any doubt as to this proposition, one of the objects of Part 3-2 

of Ch 3, dealing with unfair dismissal, states:

‘(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on 
reinstatement.’

[230] I also refer to what was said by the Full Bench of the Commission in Colson v Barwon 

Health [2014] FWCFB 1949, where at para [29], it was said:

‘[29] The passages from which the sentences relied on by the Appellant are extracted 
clearly indicate that the Deputy President understood and applied the statutory 
requirements in respect of reinstatement, as does the broader context of his decision. 
The Deputy President noted the primacy of reinstatement as a remedy for an unfair 
dismissal. His observations about primacy did no more than state that consideration of 
reinstatement against the test of whether it is inappropriate was required (and a finding 
that it is inappropriate is required) before compensation in lieu could be ordered and 
does not provide licence to search for a reason to order an employee’s reinstatement 
when that is not appropriate. The requirement to find that reinstatement is 
inappropriate before considering compensation in s.390 of the Act gives effect to the 
emphasis on reinstatement in s.390(1)(c) of the Act [footnote omitted].’

[231] In Nguyen, the Full Bench of the Commission discussed the meaning of 

‘inappropriate’ in the context of s 390 and helpfully summarised the relevant case law as to a 

loss of trust and confidence weighing against an unfairly dismissed employee’s reinstatement. 

At paras [16]-[28], the Full Bench said: 








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‘[16] We now turn to the relevant question concerning the appropriateness of 
reinstatement.

[17] Reinstatement might be inappropriate in a whole range of circumstances, for 
example if such an order would be futile such as where reinstatement of an employee 
would almost certainly lead to a further termination of the employee’s employment 
because the employer has since discovered that the employee engaged in an act of 
serious misconduct which was only discovered after the employee’s termination or if 
the employer no longer conducts a business into which the employee may be 
reappointed. The fact that the employer has filled the position previously occupied by 
the dismissed employee would rarely, of itself, justify a conclusion that reinstatement 
was not appropriate. As a Full Bench of the AIRC observed in Smith v Moore Paragon 
Australia Ltd,:

“It will often, if not typically, be the case that the position occupied by an 
applicant for relief under s.170CE of the Act will, at the time the application is 
arbitrated, either no longer exist or no longer be vacant. In our view that bare 
fact would rarely, on its own, justify a conclusion that an order for 
reinstatement was not ‘appropriate’. To adopt such an approach would tend to 
defeat the remedial purpose of the legislation.”

[18] A similar observation was made by Northrop J in Johns v Gunns Ltd

[19] Reinstatement may be inappropriate if an employee is incapacitated because of 
illness or injury. The weight to be accorded to ongoing incapacity when considering 
whether reinstatement is appropriate will depend upon all of the circumstances of the 
case.

[20] The most common argument advanced in support of the proposition that 
reinstatement is inappropriate is the proposition, variously expressed, that there has 
been a loss of trust and confidence such that it would not be feasible to re-establish the 
employment relationship.

[21] In Perkins v Grace Worldwide (Aust) Pty Ltd the Full Court of the Industrial 
Relations Court considered the effect of a loss of trust and confidence on the question 
of the “practicability” of a reinstatement remedy and said:

“Trust and confidence is a necessary ingredient in any employment 
relationship... So we accept that the question whether there has been a loss of 
trust and confidence is a relevant consideration in determining whether 
reinstatement is impracticable, provided that such loss of trust and confidence 
is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior 
officer of an employer, accuses an employee of wrongdoing justifying the 
summary termination of the employee’s employment, the accuser will often be 
reluctant to shift from the view that such wrongdoing has occurred, irrespective 
of the Court’s finding on that question in the resolution of an application under 
Division 3 of Part VIA of the Act.








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If the Court were to adopt a general attitude that such a reluctance destroyed 
the relationship of trust and confidence between employer and employee, and 
so made reinstatement impracticable, an employee who was terminated after an 
accusation of wrongdoing but later succeeded in an application under the 
Division would be denied access to the primary remedy provided by the 
legislation. Compensation, which is subject to a statutory limit, would be the 
only available remedy. Consequently, it is important that the Court carefully 
scrutinise any claim by an employer that reinstatement is impracticable because 
of a loss of confidence in the employee.

Each case must be decided on its own merits. There may be cases where any 
ripple on the surface of the employment relationship will destroy its viability. 
For example the life of the employer, or some other person or persons, might 
depend on the reliability of the terminated employee, and the employer has a 
reasonable doubt about that reliability. There may be a case where there is a 
question about the discretion of an employee who is required to handle highly 
confidential information. But those are relatively uncommon situations. In 
most cases, the employment relationship is capable of withstanding some 
friction and doubts. Trust and confidence are concepts of degree. It is rare for 
any human being to have total trust in another. What is important in the 
employment relationship is that there be sufficient trust to make the 
relationship viable and productive. Whether that standard is reached in any 
particular case must depend upon the circumstances of the particular case. And 
in assessing that question, it is appropriate to consider the rationality of any 
attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ 
a person the employer believed to have been guilty of wrongdoing. The 
requirement may cause inconvenience to the employer. But if there is such a 
requirement, it will be because the employee’s employment was earlier 
terminated without a valid reason or without extending procedural fairness to 
the employee. The problems will be of the employer’s own making. If the 
employer is of even average fair-mindedness, they are likely to prove short-
lived. Problems such as this do not necessarily indicate such a loss of 
confidence as to make the restoration of the employment relationship 
impracticable.”

[22] As the Full Bench of the AIRC observed in McLauchlan, although Perkins was 
decided under the IR Act, the Court’s observations reproduced above remain relevant 
to the question of whether reinstatement is appropriate in a particular case.

[23] In speaking of ‘trust and confidence’ in this context we are concerned with that 
which is essential to make an employment relationship workable. It is not to be 
confused with an implied term in a contract of employment of mutual trust and 
confidence, the existence of which was recently eschewed by the High Court in 
Commonwealth Bank of Australia v Barker.

[24] While it may be accepted that trust and confidence is a necessary ingredient in 
any employment relationship, it would be wrong to assume that it is the sole criterion 








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or even a necessary one to determine whether or not reinstatement is appropriate. As 
Justice Gray observed in Australasian Meat Industry Employees’ Union v G & K 
O’Connor Pty Ltd (O’Connor) the development of the law relating to trust and 
confidence in the employment relationship commenced when that relationship 
invariably involved a close personal relationship between the employer and employee, 
but with the emergence of corporate employers, the importance of trust and confidence 
in the employment relationship has diminished.

[25] Justice Gray’s remarks were considered by Deputy President Gostencnik in 
Colson v Barwon Health in which the Deputy President observed:

“I do not take his Honour’s comments to mean that trust and confidence as an 
element of the employment relationship is no longer important. It is merely 
recognition that in many cases it will be important to have regard to the totality 
of the employment, and that in the case of a corporate employer, the loss of 
trust and confidence in the employee will be by a manager or managers of the 
corporate employer. But as his Honour observed, in such cases the “critical 
question must be what effect, if any, a loss of trust by the manager in an 
employee is likely to have on the operation of the workplace concerned”. 28 It 
is important to understand that his Honour’s observations were made in the 
context of an interlocutory application while His Honour was considering 
“balance of convenience” arguments against reinstatement on an interlocutory 
basis. His Honour’s observation about the effect of the shift from a personal to 
a corporate employment relationship were made as an introduction to his 
conclusion that the respondent did not provide any evidence on the “critical 
question” as identified. So much is clear from the following passage:

. . . It might be more significant, for instance, to know the name of Mr 
Voss’s immediate supervisor and to know the attitude of that person 
towards him. If the immediate supervisor had no trust in Mr Voss, it 
might also be relevant to know whether it would be possible to place 
Mr Voss in another part of the workplace, under another supervisor, 
who did have such trust. It would also be relevant to know what effect 
any lack of trust by any manager or supervisor in a particular employee 
might have on the conduct of operations in the workplace. There is no 
evidence as to any of these matters. 
[43] Resort to an assertion that trust and confidence in a particular 
person have been lost cannot be a magic formula for resisting the 
compulsory reinstatement in employment of the particular person.”

In my view, His Honour is merely saying that it is not enough to simply assert 
that trust and confidence in an employee has been lost. Where this is relied 
upon then there must be evidence from the relevant managers holding that view 
and an assessment must be made as to the effect of the loss of trust and 
confidence on the operations of the workplace. In short, all of the 
circumstances must be taken into account. This seems evident and is hardly 
controversial.”

[26] Permission to appeal from Deputy President Gostencnik’s decision was refused.






https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB7198.htm#P134_19897


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[27] The following propositions concerning the impact of a loss of trust and 
confidence on the question of whether reinstatement is appropriate may be distilled 
from the decided cases:
 Whether there has been a loss of trust and confidence is a relevant consideration in 

determining whether reinstatement is appropriate but while it will often be an 
important consideration it is not the sole criterion or even a necessary one in 
determining whether or not to order reinstatement.

 Each case must be decided on its own facts, including the nature of the 
employment concerned. There may be a limited number of circumstances in which 
any ripple on the surface of the employment relationship will destroy its viability 
but in most cases the employment relationship is capable of withstanding some 
friction and doubts.

 An allegation that there has been a loss of trust and confidence must be soundly 
and rationally based and it is important to carefully scrutinise a claim that 
reinstatement is inappropriate because of a loss of confidence in the employee. The 
onus of establishing a loss of trust and confidence rests on the party making the 
assertion.

 The reluctance of an employer to shift from a view, despite a tribunal’s assessment 
that the employee was not guilty of serious wrongdoing or misconduct, does not 
provide a sound basis to conclude that the relationship of trust and confidence is 
irreparably damaged or destroyed.

 The fact that it may be difficult or embarrassing for an employer to be required to 
re-employ an employee whom the employer believed to have been guilty of serious 
wrongdoing or misconduct are not necessarily indicative of a loss of trust and 
confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and 
confidence restored to make the relationship viable and productive. In making this 
assessment, it is appropriate to consider the rationality of any attitude taken by a party 
[endnotes omitted].’

[232] Section 391 of the Act deals with the remedy of reinstatement as follows:

391 Remedy—reinstatement etc.

Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer 
at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed 
immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less 
favourable than those on which the person was employed immediately before 
the dismissal.

(1A) If:








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(a) the position in which the person was employed immediately before the 
dismissal is no longer a position with the person’s employer at the time of the 
dismissal; and

(b) that position, or an equivalent position, is a position with an associated 
entity of the employer;
the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed 
immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less 
favourable than those on which the person was employed immediately before 
the dismissal.

Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do 
so, the FWC may also make any order that the FWC considers appropriate to maintain 
the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if 
subsection (1A) applies) the associated entity.

Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do 
so, the FWC may also make any order that the FWC considers appropriate to cause the 
employer to pay to the person an amount for the remuneration lost, or likely to have 
been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the 
FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or 
other work during the period between the dismissal and the making of the order 
for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the 
person during the period between the making of the order for reinstatement and 
the actual reinstatement.

[233] The applicant seeks orders for reinstatement and ancillary orders for continuity of 

service and loss of wages. Reinstatement was opposed by Pacific National, for two primary 

reasons:

1. The applicant’s failure to acknowledge any wrongdoing or express any contrition 

for his actions; and








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2. The respondent could not be confident that the applicant would not engage in 

similar conduct in the future.

[234] I agree with Mr O’Sullivan’s submission that the onus rests on Pacific National to 

satisfy the Commission, on a sound evidentiary basis, that reinstatement of the applicant 

would be impracticable. This onus is not satisfied by mere assertions by management that 

reinstatement would be impracticable. So much so is evident from the decision in Regional 

Express Holdings Limited v Richards [2010] FWAFB 8753, where the Full Bench said at para 

[26]:

‘[26] Whenever an employer dismisses an employee for misconduct, assuming the 
employer is acting honestly, there is an implied loss of trust and confidence in the 
employee. If it is subsequently found that the termination was harsh, unjust or 
unreasonable it is appropriate to consider whether the relationship can be restored if 
the employee is reinstated. That question cannot be answered solely by reference to 
the views of management witnesses. All of the circumstances should be taken into 
account. In this case there is a number of relevant matters. They include the fact that 
not all of the conduct alleged against the respondent has been proven, the respondent’s 
apparently unblemished record in the performance of his flying duties over a period of 
14 years, the fact that the misconduct is not directly related to the performance of the 
respondent’s professional duties as a first officer and Rex’s failure to pursue any 
substantial disciplinary action against another pilot who, it is alleged, has been guilty 
of misconduct at least as serious as that of which the respondent was accused. The 
significance of the last consideration is that the pilot in question is still carrying out the 
full range of his duties, despite allegations of conduct of a kind which, in the 
respondent’s case, is said to have led to an irrevocable loss of trust and confidence. 
Assuming a positive approach on both sides we find there is a reasonable chance that 
the employment relationship can be restored with the necessary level of mutual trust 
[my emphasis].’

[235] Nor is the onus on an employer likely to be satisfied where the allegations against a

dismissed employee are found to have been not made out, or to be less serious than first 

believed. That said, I do not doubt the sincerity of Mr Potter and Mr Jarvis as to their views of 

the impracticality of the applicant’s reinstatement. With respect, I believe their views are 

misplaced. 

[236] In my judgement, the following factors weigh in favour of a finding that the 

reinstatement of the applicant would not be inappropriate:

 at least in respect to the allegation of leaving Ms Burton behind, the allegation was 

not proven and did not constitute a valid reason for dismissal;








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 neither primary allegation amounted to conduct which was wilful or deliberate, let 

alone reckless;

 the smoking allegation was not proven and was not a valid reason, in part, for 

dismissal;

 the applicant had 9½ years of unblemished service and no incidence of any safety 

infringements;

 the applicant now accepts he was speeding on the night of 24 November 2014;

 the incidents of speeding during the night was a ‘one off’ infringement;

 the applicant accepts that it was not safe to move the train without knowing where 

Ms Burton was;

 the applicant was remorseful and contrite for his involvement in the incidents on the 

night of 24 November 2014;

 it is at least arguable that Ms Burton was equally culpable for the events of the night 

of 24 November 2014, but was not dismissed and continued driving;

 there was no evidence from any of the applicant’s co-workers that they could not 

work with the applicant or that he was known to be derelict or careless in respect to 

his safety obligations;

 neither Mr Jarvis or Mr Potter had ever worked directly with the applicant;

 the paucity of any compelling evidence as to the employer’s loss of trust and 

confidence in the applicant; and

 Pacific National is a large employer with many thousands of employees.

[237] Accordingly, I am satisfied that it would be appropriate to reinstate the applicant to his 

former position of Driver Trainer. As mentioned earlier, the applicant seeks ancillary orders 

for continuity of service and lost remuneration, less remuneration earnt from the applicant’s 

alternative employment. I am prepared to make an order pursuant to s 391(2) of the Act that 

the applicant’s period of service be taken as continuous from the date of dismissal to 

reinstatement.

[238] However, I do not consider it would be appropriate to make orders for all of the 

applicant’s lost remuneration. The applicant was dismissed almost eight months ago and it is 

to his credit that he secured alternative employment shortly thereafter, albeit earning about 

half his previous remuneration from Pacific National. Had the applicant been entirely 

blameless for the incidents on 24 November 2014, it would have been unremarkable for the 








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Commission to make orders for the payment of all lost remuneration. However, that is not a 

conclusion which can be made in this case. 

[239] The applicant acknowledged that starting the train without knowing the whereabouts 

of Ms Burton, was not a good safety decision. More significantly, I have found the allegation 

of speeding has been substantially made out and would constitute a valid reason for the 

applicant’s dismissal. As was said in Parmalat, at para [29]:

‘[29] Added to this difficulty in discerning the true reasons for her ultimate finding we 
consider it somewhat anomalous that an employee found guilty of serious misconduct 
for breaching safety rules, and hence dismissed for a valid reason, after due process, 
could be considered to be harshly terminated in the absence of discernable and 
significant mitigating factors. These concerns involve matters of principle and the 
overall reasonableness of the decision.’

As will be evident from my earlier discussion, I consider that there are real, discernible and 

significant mitigating factors in this case.

[240] In a recent appeal decision, Chevron Australia Pty Ltd v Rogers [2015] FWCFB 5354, 

the Full Bench said:

‘[69] Where the remedy for a finding of unfair dismissal is compensation without a 
concomitant order for reinstatement, s.392(3) places a specific requirement on the 
Commission to reduce the amount it would otherwise order by an appropriate amount 
on account of any misconduct that contributed to the employer’s decision to dismiss. 
Where there is a finding of unfair dismissal and the remedy is reinstatement under 
s.391, the requirement is for the Commission to make any order about lost 
remuneration it considers appropriate pursuant to s.391(3). 

[70] In the decision of Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt 
Thorley Operations/Warkworth the Full Bench determined that a deduction due to 
misconduct was appropriate stating at [44]:

“…In this way the importance of the respondent's policies will be vindicated and 
no other employee ought be able take any comfort from this decision that 
breaches of the Isolation Policy will do other than expose them to serious 
consequences…”

[71] In the present case, Mr Rogers’ serious breach of safety exposed himself and 
others to a potential catastrophic risk by allowing Compressor 2 to run without the 
Fire and Gas Detection System being re-activated. The Deputy President held that Mr 
Rogers, in authorising the de-isolation of the compressor without ensuring that the 








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Inhibit Certificate was closed off and his continual failure to rectify this was a valid 
reason for the termination of his employment. 

[72] This was not a situation of reinstatement of employment following a 
determination that no valid reason existed. Rather, the circumstances surrounding the 
incident combined with Mr Rogers’ long service, previous exemplary record and 
inability to find alternate work made the termination harsh. In these circumstances, the 
Deputy President needed to consider whether it was ‘appropriate’ to also make an 
order requiring the employer to pay an amount for lost remuneration. Or put another 
way, is it ‘suitable or proper to also make an order for lost remuneration.

…

[76] We agree with the Deputy President that a message should be sent that the safety 
breach was a valid reason for termination. On this basis, the compensation order made 
by the President did not match the message that was intended to be sent.

[77] In Harley Schofield and Mark Winterton v Broadmeadow Mine Services Pty Ltd  
Hatcher VP stated the following in ordering reinstatement and no compensation:

“[62] However I will not make any order for lost remuneration under s.391(3). 
Mr Winterton engaged in negligent conduct which resulted in him breaching a 
fundamental safety requirement at the Mine. Although I have found that 
dismissal was a disproportionate response to this conduct, it was conduct which 
was worthy of a lesser but still significant disciplinary response. The financial 
loss which Mr Winterton has suffered from his dismissal will serve as an 
appropriate sanction for his conduct. It will also serve as a reminder to him and 
others of the necessity for strict compliance with the Life Saving Rules.”

[78] The importance of safe operations on the employer’s worksite cannot be 
underestimated; we are of the view the Deputy President made a significant error in 
exercising her discretion to award compensation in addition to the reinstatement of Mr 
Rogers. The disablement of the Fire and Gas Detection System exposed persons and 
plant to a potential catastrophic event. In having regard to the breach of safety and in 
seeking to act as a deterrent for other breaches of safety procedures or policies at the 
workplace, no compensation ought to have been ordered.

[79] We grant leave to appeal on the question of compensation as being in the public 
interest to ensure that an effective sanction is imposed considering the gravity of the 
possible consequences resulting from Mr Rogers’ serious safety breach [endnotes 
omitted].’

See also: Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley 

Operations/Warkworth [2010] FWAFB 10089.

[241] In this case, I believe there should be an effective sanction, having regard to the 

applicant’s breach of the respondent’s safety policies, its potential risks for the safety of 








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employees and the public, risk of damage to the respondent’s equipment and infrastructure 

and to ensure an appropriate ‘message’ is sent to the Pacific National workforce. 

[242] In assessing that sanction, I have had regard to the applicant’s remuneration earnt in 

alternative employment and determine that an order be made equivalent to 30% of the 

difference between this remuneration and the remuneration the applicant would have 

otherwise earnt, but for his dismissal. The payment of four weeks’ notice should also be taken 

into account. Whilst I estimate that this amount results in a sanction of around $25,000, I will 

leave the precise details of the calculation to the parties, with leave to apply in the event of 

any disagreement.

[243] In making these orders, I am satisfied that the determination of this matter has ensured 

that a ‘fair go all round’ has been afforded to the applicant and Pacific National, in 

accordance with s 381(2) of the Act.

[244] Finally, reinstatement of the applicant shall be effected within 21 days of today, or 

such other date as may be agreed by the parties. Subject to any dispute about the terms and 

implementation of the orders, these proceedings are concluded. Orders giving effect to my 

conclusions will be published contemporaneously with this decision.

DEPUTY PRESIDENT
Appearances:
Mr D O’Sullivan of Counsel, instructed by Mr B Mackay, Solicitor for the applicant.
Ms A DeBoos, Solicitor and Ms R Bevan, Solicitor for the respondent.

Hearing details:
2015:
Sydney
28, 29 July.

Printed by authority of the Commonwealth Government Printer
Price code J, PR573426


ORK WORK COMMISSION FAIR THE SEAL OF




 



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Annexure A LEPETT CAT ABGULATIDE Rail Industry Safety Notice

RISN No. 20 PROHIBITIONS REGARDING RIDING ON ROLLING STOCK Background The purpose of this Rail Industry Safety Notice (RISN) is to remind all rolling stock operators of the prohibitions that continue to exist under the Rail Safety Act 2002 in regard to persons riding on rolling stock. The prohibition applies to all rolling stock operators under a notice (see attached) issued by the Independent Transport Safety and Reliability Regulator (ITSRR) in July 2004 following a fatality in the Port Botany yard. Recently WorkCover successfully prosecuted the relevant operator in the Industrial Court over the Port Botany incident. The Prohibition Notice prohibits persons from riding on a unit of rolling stock whilst the unit is in motion. Riding within a designated operating station or other enclosed space specifically designed to protect persons during the movement of the rolling stock is not chibited It applies to all re ina stock ex ept that designed for the carriage of passengers

or persons. For example, the Prohibition Notice would prohibit persons riding on flat top wagons. ITSRR does not consider the following to be designated safe places: riding on rolling stock where the person extends outside the rolling stock outline and is exposed to the risk of being struck by rail structures riding on ladders or steps of moving rolling stock riding on freight wagons (which are designed for freight, not people) alighting or disembarking from moving locomotives by the external ladder riding anywhere where the risk of a person falling under, between or into the path of rolling stock is foreseeable riding on rolling stock where steel guard rails are in place but a person can still fall between the guard rails if, for instance, the person loses consciousness. The Prohibition Notice allows for affected railway operators to apply to ITSRR for an exemption through a variation to their accreditation. Under section 54 of the Rail Safety

Act 2002, the Prohibition Notice remains in place until the risk giving rise to the unsafe activity has been remedied. As there continues to be a clear and present risk of death or injury of persons riding on rolling stock, ITSRR has not withdrawn the Notice. In February 2005, a Rail Safety Worker was seriously injured when he fell from end steps of the last wagon of a propelling train and was run over by rolling stock. Your attention is Date: 31 August 2007 For further information contact: Mark Buckley, Manager Operations Support Page 1 of 2 Phone: (02) 8263 7191 P76




 



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drawn to the Australian Transport Safety Bureau (ATSB) Safety Report 2005/003 "Shunting Accident - Regency Park, South Australia" (www.atsb.gov.au). Action All affected operators must ensure they have in place appropriate systems and procedures

as part of their safety management system which: identifies this risk in their risk register sets out policies and procedures clearly outlining the prohibition of this activity ensures that all of the operator's employees, volunteers and contractors are made aware that riding on rolling stock unless in a designated safe position is prohibited. For further information contact Mark Buckley, Manager Operations Support on (02) 8263 7191. Carolyn Walsh Chief Executive

Attachment: Prohibition Notice (4 pages)

Date: 31 August 2007 For further information contact: Mark Buckley, Manager Operations Support Page 2 of 2 Phone: (02) 8263 7191 P77




 



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INDEPENDENT TRANSPORT SAFETY AND RELIABILITY REGULATOR Notice Number

Objective File Number Document number: Rail Safety Act 2002 (NSW) Prohibition Notice To: of:

Pursuant to section 54 of the Rail Safety Act 2002 (NSW), this notice is issued as a result of an investigation into a fatality of a rail safety worker involving railway rolling stock not specifically designed for the carriage of persons or passengers. Defined terms. 1. For the purposes of this Prohibition Notice, the following terms have the following meanings: · riding means a person or persons being on a unit of rolling stock whilst the unit is in motion. rolling stock means railway rolling stock not specifically designed for the carriage of persons or passengers. Examples include coal, grain and container flat wagons.

Activity. .... ---.. ---- 2. I am of the opinion that the activity described below is occurring and that the activity presents an immediate risk to the safety of rail safety workers and any other persons riding on rolling stock: (a) Riding on rolling stock otherwise than within a designated operating station or other enclosed space specifically designed to protect persons during movement of the rolling stock. . P78




 



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Reasons. 3. The reasons for the opinion are as follows: (a) There are currently no safe means of restraining persons riding on the rolling stock in the circumstances described above.

(b) A person riding on open top container style rolling stock can fall through the container deck of the wagon into the path of the rolling stock bogies and wheels. Any person riding on the rolling stock can fall between units of rolling stock into the path of the rolling stock bogies and wheels. (c) A person riding on the steps provided on some rolling stock can fall if his or her hands or feet are removed from the step or handhold. Current communication devices (radio), as required by accreditation and network rules and carried by persons other than those operating locomotives, are not mandated as hands-free. Any person using these devices when riding on the steps of the rolling stock must remove at least one hand to operate the device. This action presents an immediate risk to the safety of the person. (d) The risk as described in paragraph 2 (c), is also present if persons, other than those operating locomotives, are riding on the rolling stock and utilise a mobile telephone as a backup communication device.

(e) There is a risk of persons riding otherwise than within operating stations or other enclosed spaces being flung from the rolling stock by the jolting impact of multiple wagons. Directions. 4. Pursuant to section 54 of the Rail Safety Act 2002, you are required to immediately cease the activity of permitting employees, contractors or other persons in your control from riding railway rolling stock (whether outside, within or upon that rolling stock) unless riding within a designated operating station or other enclosed space specifically designed to protect persons during the movement of the rolling stock. 5. You are directed to take all necessary measures to ensure that rail safety workers and other persons are immediately prohibited from riding on the rolling stock, including during train movements in yards, terminals and sidings, except in

circumstances described in paragraph 4 above. Date of effect and procedure for seeking exemptions. 6. This notice takes immediate effect from the date and time of its execution. This notice remains in force unless and/or until your organisation applies for and is granted an exemption by the Independent Transport Safety and Reliability Regulator. Application is to be via a request for variation of accreditation. The application is to include a comprehensive risk assessment and the methodology by which persons riding on the rolling stock will be restrained or otherwise protected. P79




 



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Review Rights. 7. The Rail Safety Act 2002 (NSW) contains provisions for persons given notice under Division 2 of Part 3 to apply for a review. These provisions are summarised

overleaf. 8. Enquires in relation to this notice may be directed to me on (02) 8263 7148. Issued this Authorised Officer, Independent Transport Safety and Reliability Regulator

-

P80




 



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Note: This information forms part of the Prohibition Notice What happens if you do not comply with a notice? Under section 54(3) of the Rail Safety Act 2002 (NSW), a person who, without reasonable excuse, fails to comply with a requirement imposed by a prohibition notice is guilty of an

offence. The maximum penalty for this offence is specified What to do if there is a mistake in the notice If the notice is addressed to the wrong person or contains incorrect information relating to the address or other details, you should contact the officer who issued you with the notice. His or her name and telephone number are on the notice. What to do if you do not understand the notice or want to discuss it If there is any matter which is unclear or which you do not understand about this notice, or if you want to discuss it, you should first contact the officer who issued you with the notice. Review Rights Section 56 of the Rail Safety Act 2002 (NSW) provides that a person who is issued with a prohibition notice may apply to ITSRR for a formal review of the notice. If you wish to apply to ITSRR for a review of the notice, you must make your application within 7 days after the notice was issued. An application for review may only be made once in respect of any particular notice. This application must:

Include a copy of the notice for which review is being sought Set out clearly the reasons why the review is sought Be sent to the Executive Director Corporate Strategy; Phone 8263 7192 Contain your name and address Contain your telephone number If you have been issued with a prohibition notice you must cease the activity until the matters giving rise to the notice are remedied. If you apply for review of a prohibition notice you must continue to comply with the notice until it has been reviewed by ITSRR. If you want the prohibition notice to be stayed while the ITSRR review is taking place you will need to apply to the Administrative Decisions Tribunal for a stay of the notice under Section 57 of the Rail Safety Act - 2002 (NSW). ITSRR may, as a result of the review, confirm the original notice, vary it or revoke. it. The confirmation, variation or revocation has effect when notice of the result of the review is TCDD

given to you. In some cases the result may be given verbal later notified in writing. In such cases if the notice is confirmed or varied you must comply with the notice or variation as soon as ITSRR verbally gives you that information. If you are not satisfied with the result of your review you may appeal against the notice concerned to the Administrative Decisions Tribunal. +4814 P81

Cases cited by this decision: