1
Fair Work Act 2009
s.604—Appeal of decision
Queensland Rail T/A Queensland Rail
v
Michael Rainbow
(C2022/1965)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT MASSON
COMMISSIONER YILMAZ
SYDNEY, 2 AUGUST 2022
Appeal against decision [2022] FWC 589 of Deputy President Lake at Brisbane on 16 March
2022 in matter number U2021/10203 – permission to appeal refused.
[1] Queensland Rail seeks permission to appeal and if granted, appeals a decision of Deputy
President Lake of 16 March 2022 (Decision).1 The Deputy President in the Decision was
dealing with an application for an unfair dismissal remedy made by Mr Michael Rainbow (Mr
Rainbow) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). In so doing the Deputy
President found that Mr Rainbow had been unfairly dismissed, made an order for his
reinstatement and for the restoration of lost pay.
[2] For the reasons that follow, we are not satisfied that it would be in the public interest to
grant permission to appeal. Permission to appeal is therefore refused.
Background
[3] Before turning to the appeal, it is useful to set out the background to the Decision.
[4] Mr Rainbow, who is qualified as a carpenter and fitter, commenced employment with
Queensland Rail in 1989 and was at the time of his dismissal on 2 November 2021 employed
as a Cairns Maintainer in Queensland Rail’s Portsmith Workshop and Depot.
[5] Mr Rainbow received a written warning on 30 May 2017 in relation to an incident in
which he had breached Queensland Rail’s Code of Conduct by the use of profanities. On 19
May 2021 he was issued with a final warning because of an incident in which he had spoken
“in an intimidating manner and/or swore at [another employee] using words to the effect of
‘piss off.’”
[6] The events that led to Mr Rainbow’s dismissal took place on 28 July 2021 at
approximately 3.15pm. Mr Rainbow had parked his private motor vehicle, with his boat
1 [2022] FWC 589.
[2022] FWCFB 147
DECISION
AUSTRALIA FairWork Commission
[2022] FWCFB 147
2
attached, across a live train line on Road 1 at the Portsmith Maintenance Depot for the stated
purpose of pumping up the tyres. In doing so, he failed to implement the required safety measure
which prevented rolling stock from using the line, that of placing a ‘block’ on the line.
[7] Sarah Coran, who is the Manager of the Portsmith Yard, left her office shortly after
being alerted to Mr Rainbow’s actions and went down to speak with him. During the ensuing
conversation Ms Coran allegedly stated to Mr Rainbow that he was doing a ‘foreigner’ (i.e.
personal work in company time) and was committing a safety breach. Mr Rainbow at a
subsequent point in the conversation said words to the effect “I’ve had enough of this shit” and
shortly after ended the conversation with Ms Coran and left the site for the day.
[8] Mr Rainbow was suspended shortly after the events on 28 July 2021 and an investigation
was initiated by Queensland Rail. Staff of Queensland Rail’s Ethics and Investigations Team
interviewed Mr Rainbow on 16 August 2021. During the course of the interview, Mr Rainbow
acknowledged that he had parked his car on the line for a few minutes without using a ‘block’
but would have been aware of any approaching trains or shunting due to his possession of a two
way radio and consequently believed his actions were safe. He variously agreed that he had not
sought permission to pump his tyres up, was on his afternoon break at the time of the incident
before the scheduled arrival of a train at 4.00pm and denied washing his boat.
[9] Mr Rainbow also agreed during the investigation interview that he had used words to
the effect of “I’m sick of this shit”. He stated he was aware that he was on a final warning and
was frustrated that he could be dismissed for something as silly as his actions of 28 July 2021.
He also claimed he had been victimised by Ms Coran which contributed to his frustration.
[10] A letter titled ‘Communication of Findings’ dated 2 September 2021, to which was
attached a copy of the Investigation Report, was sent to Mr Rainbow inviting him to respond to
the findings. A subsequent ‘Show Cause’ letter was sent to Mr Rainbow on or about 28
September 2021 to which his representative responded on his behalf on 8 October 2021.
[11] Mr Rainbow was issued with a Termination Notice2 on 2 November 2021 by Mr Brian
Sharp, General Manager Regional Rollingstock, which set out the following substantiated
allegations arising from the events of 28 July 2021;
1. he acted in an unsafe manner by parking his vehicle across an unsecured train line
at the Portsmith Yard, in breach of the Code of Conduct and relevant safety
procedure and policy;
2. he failed to ensure appropriate use of Queensland Rail resources by pumping up the
tyres of his personal motor vehicle and/or washing his boat at Portsmith Yard, in
breach of the Code of Conduct; and
3. that in the ensuing discussion with Ms Coran, Mr Rainbow made inappropriate
and/or unprofessional comments, in breach of the Code of Conduct, and said words
to the effect;
2 Appeal Book at p.181.
[2022] FWCFB 147
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“I’m sick of this shit;”
“I know you’ll take it to HR, do whatever you want, I don’t care anymore;”
“I don’t give a shit;” and/or
“I’m booking off and don’t know when I’ll be back.”
[12] The Termination Notice identified various matters that Mr Rainbow had raised in his 8
October 2021 Show Cause response but then stated that those matters did not mitigate Mr
Rainbow’s conduct. The Termination Notice went on to refer to earlier incidents and that those
incidents along with the 28 July 2021 incident revealed a pattern of aggressive (bullying)
behaviour. The letter affirmed that safety comes first for Queensland Rail, that Mr Rainbow
had failed to take accountability for his behaviour and in doing so jeopardised the right of
Queensland Rail workers, visitors, customers and members of the public to be free from risk.
Mr Rainbow was dismissed with immediate effect on 2 November 2021 and received five
weeks pay in lieu of notice.
The Decision
[13] The Deputy President approached the matter before him in the Decision by dealing
firstly with the preliminary matters he was required to consider under the Act (s.396) before
setting out the background to the dismissal. He then turned to detail the evidence of the various
witnesses and summarised the submissions of Mr Rainbow and Queensland Rail before
commencing his consideration. In commencing his consideration, the Deputy President made
several observations regarding the witnesses and their evidence as follows;
“[129] I took each of the Applicant’s witnesses to be straightforward, honest and frank
men. I was troubled by their comments that in giving evidence in support of the
Applicant, they felt they may be making themselves a target of the Respondent,
specifically Ms Coran. I have no way of knowing whether those fears are founded or
will come to fruition, however I am certain that should any one of those men find
themselves the subject of proceedings like this one, the Commission will review their
case with a very keen eye to ensure that is not the case.
[130] As to the Respondent’s witnesses and representatives, each maintained that safety
was of paramount importance to the Respondent. While that may be the case, there
seemed an unwillingness by each witness to contemplate, even for a moment, that their
action had been severe in the present circumstances. Very little weight was seemingly
given by anyone in management, to the gravity of the decision to terminate the
Applicant’s employment and the impact that such a decision might have on an
individual who had served them for more than three decades. Such contemplation would
not have demonstrated a weakness in respect of their case, but rather a more thoughtful
and wholistic approach to the situation in which they found themselves.
[131] As to Ms Coran, I accept that she felt her management style and integrity were in
question given the nature of the allegations made against her by the Applicant and
others. Undoubtedly, giving evidence in these proceedings would have been stressful
and intimidating. However, she seemed reluctant, for example, to admit that she
occasionally used colourful language herself and couched her concession by saying that
she would never direct it at an employee. Similarly, she gave evidence with respect to
[2022] FWCFB 147
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matters about which she did not have firsthand experience and then became defensive
with the Applicant’s counsel attempted to tease out her actual knowledge of the safety
breach in question. She raised an incident in which the Applicant had been involved as
being another example of his poor attitude towards safety, despite no formal action ever
being taken in respect of it.
[132] Like all the Respondent’s witnesses, Mr Benstead agreed that safety was of utmost
importance to the Respondent. That is no doubt the case. However, while he broadly
said that years of service was considered, he had not appeared to engage with the
Applicant's particular circumstances before deciding to terminate his employment.”3
[14] After then setting out the s.387 criteria and noting relevant authorities, the Deputy
President proceeded to consider each of the criteria, turning firstly to whether there was a valid
reason for Mr Rainbow’s dismissal (s.387(a)). In doing so, the Deputy President considered
each of the three substantiated allegations that were detailed in the Termination Notice. In
respect of Mr Rainbow’s inappropriate use of Queensland Rail’s resources, that of pumping up
his tyres, the Deputy President rejected that such conduct established a valid reason for his
dismissal. The Deputy President stated as follows;
“[140] I am not satisfied that doing a foreigner – that is filling his tyres with air while on
a break – was a valid reason for dismissal. That is particularly so given that the evidence
demonstrated that it was not an uncommon practice for employees at the site. Even if
that established practice was not in existence, I would not be satisfied that the
Applicant’s conduct in that regard warranted dismissal.”4
[15] Turning to consider the language used by Mr Rainbow during his discussion with Ms
Coran on 28 July 2021, the Deputy President rejected that the language used in the
circumstances that arose that day established a valid reason for his dismissal, relevantly stating
as follows;
“[141] As to the coarse language used by the Applicant, I acknowledge that there were at
least two prior instances in which he had been reprimanded for similar language.
However, one must consider the context of the Applicant’s employment. He has been
working on a train line for the last 33 years. I am reminded of Commissioner Riordan’s
comments in Gosek v Illawarra Coal Holdings Pty Limited T/A South, that the Applicant
there worked “in a coalmine – not a convent. The use of inappropriate language in this
workplace is commonplace and has been condoned by [the Respondent].” Some rough
language in the context of the Applicant's work environment hardly seems surprising or
problematic. Indeed, the language referred to in the final warning document – that he
had said “piss off” – seems to be at the milder end of any spectrum of coarse language.
[142] As to the language used by the Applicant when Ms Coran spoke to him about the
safety incident – namely, “I’ve had enough of this shit” – while not polite, it is hardly
particularly offensive. That is especially so given the nature of the workplace and the
fact that swearing was hardly uncommon onsite. Even Ms Coran admitted to
3 Decision at [129]-[132].
4 Ibid at [140].
[2022] FWCFB 147
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occasionally swearing, while others suggested her use of such language may have even
been frequent. Whether that is true is immaterial. Ms Coran’s evidence was that while
she sometimes will swear, it was not towards at any of her direct reports. In the same
way, the Applicant’s comments were not directed at her but at the situation in which
they found themselves. There is no evidence before me that the Applicant’s expletives
were uttered with aggression; more likely, based on the evidence before me, it was
simply an expression of his frustration.
[143] The Applicant’s response must also be viewed in light of the fact that he thought
he was being unfairly targeted by Ms Coran. He points to the fact that other more serious
safety breaches had occurred on the site under her view, control and management which
were not met with the same severity of consequences as the Applicant’s technical safety
breach, even though in his circumstances, the risk of actual (or potential) harm to him
or anyone else was negligible. When she approached him, he felt like she was
deliberately confrontational, and this provoked his reaction. While I accept the
Respondent’s submission that the Applicant is a grown man and therefore responsible
for his own behaviour, I also acknowledge that in the circumstances as he viewed them,
tempers were running particularly high.” (footnotes omitted)
[16] Dealing with the third most serious ground of misconduct, that of the Applicant parking
his vehicle on a rail line in the Portsmith Yard without a ‘block’ in place, the Deputy President
found that the conduct founded a valid reason for Mr Rainbow’s dismissal. After referring to
various authorities dealing with safety breaches the Deputy President then stated as follows;
“[147] Contrary to the Respondent’s assertions, I am not satisfied that the Applicant’s
conduct was a reckless breach of safety procedures. He did not set out to endanger the
health and safety of himself or anyone else. The Applicant’s long career with the
Respondent, unblemished by any other significant safety breaches, does not demonstrate
any propensity for such conduct. Nevertheless, he did decide to park his car across the
live line. Though this technically constituted a safety breach, the actual risk was
negligible. He was armed with a two-way radio, so would be informed immediately of
any movement of trains or shunts, which would mean he would have an opportunity to
remove himself and his vehicle from danger. He was also aware that no train was
expected to arrive for approximately another 45 minutes. Consequently, he did not
perceive there to be any danger.
[148] There is no doubt that the incident involved the Applicant doing something in
breach of safety procedures; the Applicant admits as much. I accept that in ordinary
circumstances employee’s cannot be left to determine which safety procedures they
comply with based on the danger as assessed by themselves. Safety procedures are in
place to keep employees and those around them safe.
[149] I accept that a safety breach of this kind must be met with consequences from the
Respondent. It is not my role to stand in the shoes of the employer. Therefore, while
another cooler head may not have terminated the Applicant’s employment for the
[2022] FWCFB 147
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technical – negligible – safety breach, I am satisfied that the Respondent did have a valid
reason to terminate the Applicant’s employment.”5
[17] Having dealt with s.387(a) the Deputy President then made the unremarkable statement
that his finding of there being a valid reason for Mr Rainbow’s dismissal was not determinative
of whether his dismissal was unfair, as it was but one matter to be weighed. He then proceeded
to consider the balance of the s.387 criteria. In relation to the ss.387 (b)-(g) criteria, the Deputy
President variously found that:
Mr Rainbow was notified of a valid reason for his dismissal and had an opportunity
to respond (ss.387(b) and (c)).6
Mr Rainbow was not unreasonably refused a support person to assist in any
discussions related to his dismissal (s.387(d)).7
Mr Rainbow was not dismissed for unsatisfactory performance and as such that
particular consideration was irrelevant (s.387(e)).8
The respondent was a large employer with a well-resourced human resources
department, seemingly followed its internal procedures with respect to information
gathering and the decision to terminate Mr Rainbow was made by appropriate
individuals within Queensland Rail (ss.387(g) and (f)).9
[18] The Deputy President then turned to consider any other relevant matters pursuant to
s.387(h) and stated as follows;
“[155] I have regard to the fact that the Applicant had worked for the Respondent for 33
years, during which time there had been no other issues with his performance in respect
of safety. The Applicant is a man of senior years, trained as a carpenter, in an area with
limited employment opportunities for someone of his age and skill set. The termination
of his employment has had a significant impact on him and his family.
[156] His conduct was a deliberate act but not a wilful breach of safety procedures or
one which recklessly disregarded the safety of himself or others. It was argued further
on the Applicant’s behalf that the decision to terminate the Applicant’s employment
was harsh and disproportionate to the gravity of his conduct. The Respondent could
have elected to impose a lesser sanction upon the Applicant but did not do so. The
Respondent’s view was that the Applicant’s departure from the prescribed procedures
was so great that it could no longer reasonably risk the Applicant’s continued
employment. It was repeatedly stated on the Respondent’s behalf that it takes safety
very seriously – always – and has a zero-tolerance policy towards safety breaches given
the high-risk nature of the environment.
5 Ibid at [155]-[157].
6 Ibid at [151].
7 Ibid at [152].
8 Ibid at [153].
9 Ibid at [154].
[2022] FWCFB 147
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[157] However, there was a tendency by the Respondent – at first instance by Ms Coran
when she arrived on 28 July 2021 and then subsequently by each person called as a
witness and in its submissions – to inflate the gravity and seriousness of the Applicant's
conduct. That is particularly so given that the evidence suggests that it was
commonplace for others to conduct foreigners on their vehicles. The Applicant said he
did not know whether these have been performed across the line or next to it. That said,
it was clear from the evidence that there had developed a practice of people pumping
their tyres in the general vicinity of the train line. One would have thought that this
would have warranted some further investigation. Had there been evidence of such a
practice arising from the investigation, one might pause before terminating the
Applicant for such conduct. There seems to have been little investigation by the
Respondent into this before a decision was made to terminate the Applicant.
[158] There was some troubling evidence from a number of witnesses who had formed
the view that this particular incident was not properly and realistically evaluated based
on the gravity and seriousness of the breach, or indeed the common practices at the
workplace, but rather an opportunistic attempt by management to remove the Applicant
from the workplace. The evidence given by the three workers suggested that there had
been other, arguably more serious, incidents which had not been met with the same zero-
tolerance approach to safety. I accept there was not any independent evidence of these
incidents during these proceedings, but I was satisfied that each of the Applicant’s
witnesses were credible and honest and therefore see no reason not to accept their
testimony. In respect of one such incident, Ms Coran said it had never been directly
reported to her. However, Mr Richardson’s evidence was that it need not have been
reported because it was blatantly obvious to anyone on site that day, including Ms
Coran.”10
[19] The Deputy President then weighed Mr Rainbow’s long and largely unblemished
employment history against his conduct on 28 July 2021 and concluded as follows;
“[159] A balanced, objective and realistic evaluation of all the evidence relating to the
incident and the Applicant’s long, largely unblemished history, does not support the
Respondent’s conclusion that the Applicant’s safety breach was of such gravity and
significance so as to justify his dismissal. In making the decision to terminate the
Applicant’s employment, particularly given his personal circumstances, the Respondent
acted disproportionately to the gravity of the Applicant’s breach thus rendering the
dismissal harsh, unjust and unreasonable.
[160] Therefore, for the reasons given above, I am satisfied that the Applicant has been
unfairly dismissed. I turn now to remedy.”11
[20] Having found that Mr Rainbow had been unfairly dismissed the Deputy President then
dealt with the question of remedy and found that reinstatement was an appropriate remedy. His
reasoning for reaching that conclusion was as follows;
10 Ibid at [155]-[158].
11 Ibid at [159]-[160].
[2022] FWCFB 147
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“[170] In the present case I am satisfied that reinstatement is an appropriate remedy, for
the following reasons. Firstly, the Act provides that it is the primary remedy for unfair
dismissal. Secondly, the Applicant conceded that his conduct amounted to a safety
breach and that he could have found different words to express himself towards Ms
Coran. He expressed regret and remorse for his conduct. Given how these proceedings
unfolded I have confidence that the Applicant will ensure that he does not park across a
live track should he ever pump his tyres at work again.
[171] Thirdly, I do not accept that there is a reasonable basis for the Respondent to assert
a loss of trust and confidence in the Applicant. He has been a dedicated and safe
employee for 33 years. One incident of the kind that occurred on 28 July 2021, cannot
reasonably displace the level of trust and confidence accumulated over that period. That
is particularly so give the Applicant’s conduct on that day was not wilful or reckless.
The Applicant thought he had the situation under control and, indeed, there was no harm
caused to any person or property by his conduct. With an appropriate warning, any risk
posed by the Applicant’s casual approach to filling his tyres could be eliminated. If he
fails to follow safety protocol on another occasion, termination may then be reasonable.
[172] Fourthly, I do not consider that the Applicant’s reinstatement would set a
dangerous precedent for the Respondent’s safety culture and tolerance for poor
behaviour. The Respondent could issue the Applicant with a formal warning for the
conduct to ensure that all involved are aware of the seriousness placed upon safety by
the Respondent.
[173] Finally, an order for reinstatement places the Applicant in the same position that
he would have been in had he not been dismissed. Given the Applicant’s age and
specialised skillset, this outcome is more just than any reasonable order of compensation
could hope to be.”12 (footnotes omitted)
[21] The Deputy President then determined that it was appropriate to make an order for Mr
Rainbow’s reinstatement to his former position and that the continuity of Mr Rainbow’s
employment with Queensland Rail be maintained. The Deputy President further ordered that
Mr Rainbow be paid an amount for remuneration lost due to his dismissal with a deduction of
two months’ pay in recognition of the admitted safety breach which led to his dismissal.13
Appeal Grounds
[22] Queensland Rail’s notice of appeal sets out the following grounds of appeal.
Ground 1
[23] The Deputy President erred in law and/or acted illogically and unreasonably;
12 Ibid at [170]-[173].
13 Ibid at [174]-176].
[2022] FWCFB 147
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(a) by misapplying the test for determining whether a valid reason to terminate
employment for the purposes of s.387(a) of the FW Act exists by considering at
paragraphs [140] to [149] of the Decision each basis for the termination of
employment in isolation;
(b) as a consequence of (a) above, failing to find that the Respondent’s conduct as a
whole on 28 July 2021, particularly in the context of previous warnings, constituted
a valid reason to terminate the Respondent’s employment for the purposes of
s.387(a) of the FW Act;
(c) in the alternative to (a) and (b) above, by failing to find that the Respondent’s
language and other conduct directed to his supervisor on 28 July 2021, particularly
in the context of previous warnings, was a valid reason to terminate the
Respondent’s employment for the purposes of s.387(a) of the FW Act;
(d) by misdirecting himself in paragraph [157] of the Decision in taking into account
that tyre pumping had previously occurred “in the general vicinity of the train line”
when the unchallenged evidence was that the Respondent, in a clear and known
breach of safety procedures, parked his private vehicle across a live railway line;
(e) by failing to give proper weight to the importance of compliance with safety
procedures, particularly in a workplace which has heavy moving plant and where
compliance with those safety procedures is a requirement of Queensland Rail's
accreditation under the Rail Safety National Law;
(f) by failing to give proper weight to the fact that the Respondent chose to act in
contravention of a safety policy known to him, without justification;
(g) by failing to give proper weight to the fact that in addition, or combined with the
conduct in (e) and (f) above, the Respondent, when challenged as to his conduct,
responded by using abusive language towards his supervisor and departing the
workplace without authorisation from Queensland Rail; and
(h) by relying, in paragraph [158] of the Decision, on the serious allegation that there
was “an opportunistic attempt by management to remove the [Respondent] from
the workplace” when on the evidence before the Commission a finding of that
nature was not open.
Ground 2
[24] The Deputy President made significant errors of fact;
(a) as a consequence of 1(a) above, in failing to find that the Respondent’s conduct as
a whole on 28 July 2021, particularly in the context of previous warnings,
constituted a valid reason to terminate the Respondent’s employment for the
purposes of s.387(a) of the FW Act;
(b) in the alternative to 1(a) and 2(a) above, in failing to find that the Respondent’s
language and other conduct directed to his supervisor on 28 July 2021, particularly
[2022] FWCFB 147
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in the context of previous warnings, was a valid reason to terminate the
Respondent’s employment for the purposes of s.387(a) of the FW Act;
(c) in finding in paragraph [147] of the Decision that the Respondent’s conduct was
not a reckless breach of safety procedures when, on the evidence, it was;
(d) in the alternative to 1(d) above, by misdirecting himself in paragraph [157] of the
Decision in taking into account that tyre pumping had previously occurred “in the
general vicinity of the train line” when the unchallenged evidence was that the
Respondent, in a clear and known breach of safety procedures, parked his private
vehicle across a live railway line;
(e) in the alternative to 1(e) above, by finding in paragraph [157] that there was a
tendency on the part of Queensland Rail to inflate the gravity and seriousness of the
Respondent’s conduct, in failing to give proper weight to the importance of
compliance with safety procedures, particularly in a workplace which has heavy
moving plant and where compliance with those safety procedures is a requirement
of Queensland Rail's accreditation under the Rail Safety National Law;
(f) in the alternative to 1(f) above, by finding in paragraph [157] that there was a
tendency on the part of Queensland Rail to inflate the gravity and seriousness of the
Respondent’s conduct, in failing to give proper weight to the fact that the
Respondent chose to act in contravention of a safety policy known to him, without
justification;
(g) in the alternative to 1(g) above, by finding in paragraph [157] that there was a
tendency on the part of Queensland Rail to inflate the gravity and seriousness of the
Respondent’s conduct, in failing to give proper weight to the fact that in addition,
or combined with the conduct in (e) and (f) above, the Respondent when challenged
as to his conduct, responded by using abusive language towards his supervisor and
departing the workplace without authorisation from Queensland Rail; and
(h) in the alternative to 1(h) above, by relying, in paragraph [158] of the Decision, on
the serious allegation that there was “an opportunistic attempt by management to
remove the [Respondent] from the workplace” when on the evidence before the
Commission a finding of that nature was not open, or in the alternative not
supported by the evidence taken as a whole.
Ground 3
[25] By taking into account the matters raised in Grounds 1 and 2, the Deputy President erred
in exercising his discretion under s.391(1) of the Act, on the basis that the termination of
employment was not unfair for the purposes of s.390(1)(b) of the Act.
Principles on appeal
[2022] FWCFB 147
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[26] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s
powers on appeal are only exercisable if there is error on the part of the primary decision
maker.14 There is no right to appeal and an appeal may only be made with the permission of the
Commission.
[27] This appeal is one to which s.400 of the Act applies.15 Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation
to a matter arising under this Part can only, to the extent that it is an appeal on a
question of fact, be made on the ground that the decision involved a significant error
of fact.
[28] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v
Lawler and others,16 Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised
the test under s 400 as “a stringent one”. The task of assessing whether the public interest test
is met is a discretionary one involving a broad value judgment.17 A Full Bench of the
Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the
considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive, or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters.”18
[29] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of
appealable error.19 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.20
14 This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and
Allied v AIRC [2000] HCA 47, 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
15 See Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37].
16 (2011) 192 FCR 78 at [43].
17 O’Sullivan v Farrer [1989], HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v
Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal
& Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
18 [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
19 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
20 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR
388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78,
207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation
Office [2014] FWCFB 1663, 241 IR 177 at [28].
[2022] FWCFB 147
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[30] An application for permission to appeal is not a de facto or preliminary hearing of the
appeal. In determining whether permission to appeal should be granted, it is unnecessary and
inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.21
However, it is necessary to engage with those grounds to consider whether they raise an
arguable case of appealable error.
Consideration
Ground 1(a), (b) and 2(a)
[31] By grounds 1(a), (b) and 2(a) Queensland Rail contends that the Deputy President failed
to apply the proper approach in considering whether Mr Rainbow’s conduct constitutes a valid
reason for his dismissal. Queensland Rail also submit that the Deputy President failed to
properly characterise the totality and gravity of the misconduct in determining whether there
was a valid reason for Mr Rainbow’s dismissal. This it says led to a failure of the Deputy
President to properly weigh and assess the valid reason for dismissal with other s.387 criteria
and in particular harshness under s.387(h).
[32] The initial error according to Queensland Rail lies in the Deputy President’s
consideration of each the three aspects of Mr Rainbow’s misconduct in isolation rather than
considering the totality of the conduct. The three aspects of Mr Rainbow’s conduct were;
doing a “foreigner”
using inappropriate and unprofessional language; and
parking his private vehicle over a live rail line in the Portsmith Yard.
[33] As earlier set out, the Deputy President found that Mr Rainbow’s conduct of doing a
“foreigner” and using inappropriate and unprofessional language did not found a valid reason
for his dismissal whereas his parking his car on a live rail line did establish a valid reason for
his dismissal.
[34] According to Queensland Rail, consideration of ‘whether there was a valid reason for
the dismissal related to the person’s capacity or conduct’ does not call for an examination of
whether each aspect of the conduct was a valid reason, but rather whether the employer had a
valid reason for the employee’s dismissal based on the employee’s conduct considered in its
totality. It further argues that only by considering the totality of the conduct can the harshness
of the dismissal be assessed. By failing to consider the totality of Mr Rainbow’s conduct in the
assessment of whether there was a valid reason, Queensland Rail submit that the Deputy
President determined that the termination was disproportionate to one specific aspect of conduct
(i.e. parking on a live rail line).
[35] Queensland Rail refers to the Full Bench authority of Malcolm Pearson v Linfox
Australia Pty22 (Pearson No. 2) which Queensland Rail says expressly approved that the
reasons for dismissal should be considered in totality when determining whether there was a
valid reason for dismissal. Pearson followed the first instance decision of Commissioner
21 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
22 [2014] FWCFB 1870.
[2022] FWCFB 147
13
Gregory in Malcolm Pearson v Linfox Australia Pty23 (Pearson No. 1) in which he considered
a range of misconduct of Mr Pearson who worked for Linfox at its Fonterra Distribution Centre.
The misconduct considered included Mr Pearson’s absence from work notification, his mobile
phone usage at work, social media policy breaches and Safe Working Procedures policy
breaches.
[36] In Pearson No. 1 the Commissioner examined all of the relevant facts relating to the
alleged misconduct and concluded as follows;
“[51] In all the circumstances I am satisfied Linfox had a valid reason to dismiss Mr
Pearson based on an objective analysis of the relevant facts. The individual instances
concerning his conduct may not in isolation have justified his dismissal. However, in a
similar way to the conclusion reached by Sams DP in Dickinson v Calstores Pty Ltd his
conduct involved, in aggregate, a consistent pattern of behaviour that demonstrated a
repeated disregard for and refusal to comply with the policies and procedures Linfox
had in place in the Distribution Centre. I am satisfied in those circumstances his conduct
constituted a valid reason for termination.”24 (Our emphasis added)
[37] On appeal in Pearson No.2 the Full Bench summarised the Commissioner’s decision
and specifically referred to the valid reason conclusion he reached at [51] in Pearson No.1. It
is correct that the Full Bench did not overturn the Commissioner’s approach or conclusion
reached on valid reason at first instance. They found no error in his approach. That however
falls short of an express approval of the approach adopted. Nor does it stand for the proposition
or a decision rule that all conduct must be aggregated in determining whether a valid reason for
a dismissal exists. We note that in Pearson No.1 the Commissioner explicitly stated that each
of the individual instances of misconduct in themselves may not have justified dismissal. An
aggregation of the conduct in in determining the existence of a valid reason for dismissal in
these circumstances was not only unsurprising but entirely appropriate.
[38] More relevant in the context of the present case is the Full Bench authority of Mt Arthur
Coal Pty Ltd v Goodall25 (Mt Arthur). The decision involved an appeal of a decision by
Commissioner Saunders (as he then was) at first instance in which the Commissioner found a
valid reason existed for Ms Goodall’s dismissal based on an evaluation of each of the discreet
grounds of misconduct relied by Mt Arthur in dismissing him. In reviewing the Commissioner’s
approach to the evaluative task involved in assessing whether there was a valid reason for
dismissal and then considering whether the dismissal was harsh, the Full Bench relevantly
stated as follows;
“[66] We do not agree with the requirement postulated in Mt Arthur Coal’s submissions
that the “totality” of Mr Goodall’s conduct had to be considered prior to the
Commissioner engaging upon whether there was a valid reason for dismissal and then
whether the dismissal was harsh. Mt Arthur Coal had given discrete reasons for Mr
Goodall’s dismissal based upon various aspects of his conduct. That being the case, it
was appropriate for the Commission in relation to s.387(a) to consider each reason given
23 [2014] FWC 446.
24 Ibid at [51].
25 [2016] FWCFB 5492.
[2022] FWCFB 147
14
and assess whether it was a valid reason for dismissal. The Commissioner found that
each reason given was a valid one, so that there was no need for the Commissioner to
then proceed to assess the validity of the reasons in their totality. In relation to s.387(h),
the Commissioner had a broad discretion to take into account those matters which he
considered relevant. In the exercise of that discretion, the Commissioner considered the
gravity of each and every aspect of Mr Goodall’s misconduct, being the safety risks
posed by his use of Channel 6, his swearing, the various “crude, lewd and sexist
comments” he made , and the anti-Muslim comments. We consider that was a process
of analysis that was reasonably available for the Commissioner to undertake having
regard to the different character of each aspect of Mr Goodall’s conduct. There is no one
process of analysis that s.387(h) either expressly or by implication requires the
Commission to undertake, nor is there any basis for an appellate Full Bench to impose
a “decision rule” requiring the discretionary decision-making process to be undertaken
in a particular way.” (footnotes omitted)
[39] Queensland Rail seeks to distinguish Mt Arthur on the basis that the relevant factual
background in that case was that Mt Arthur had given Mr Goodall discreet reasons for his
dismissal whereas in the present case Queensland Rail’s approach was that of considering the
totality of the misconduct. In making that submission Queensland Rail relies on the statutory
declaration26 of James Benstead, who is Queensland Rail’s Head of Regional and participated
in the decision to dismiss Mr Rainbow. While Mr Benstead refers in the statutory declaration
to the various circumstances he recalls that led to Mr Rainbow’s dismissal, including the
‘foreigner’, his reaction to Mr Coran and prior disciplinary action,27 more relevant is the letter
actually sent to Mr Rainbow confirming his dismissal which set out the discrete allegations of
misconduct found to have been substantiated.28 To that extent, the Full Bench sees no difference
between the circumstances of the present case and Mt Arthur which Queensland Rail seeks to
distinguish so far as both employers set out discreet reasons for dismissal.
[40] As made clear by the Full Bench in Mt Arthur, there is “no one process of analysis that
s.387(h) either expressly or by implication requires the Commission to undertake”. We
respectfully endorse that statement by the Full Bench in Mt Arthur along with the further
statement they made that there is no “basis for an appellate Full Bench to impose a “decision
rule” requiring the discretionary decision-making process to be undertaken in a particular way”.
We agree and decline to do so now in the appeal before us.
[41] In assessing whether there was a valid reason for dismissal and then whether the
dismissal was harsh, the Deputy President had broad discretion in undertaking that task. He
approached that task by considering each of the discreet grounds relied on for the dismissal.
That approach was open to him. For the reasons set out at [140]-[150] of the Decision, the
Deputy President found that a valid reason existed for Mr Rainbow’s dismissal based on his
parking his vehicle across a live rail line at the Portsmith yard. Having found a valid reason
existed relating to rail line safety breach it was unnecessary for the Deputy President to then
assess the conduct in its totality for the purpose of s.387(a), unlike the circumstances in Pearson
26 Statutory Declaration of James Lawrence Benstead, dated 3 February 2022, Appeal Book at p.228.
27 Ibid at [1]-[5], Appeal Book at p.158.
28 Termination of Employment letter, November 2021, Appeal Book at p.216.
[2022] FWCFB 147
15
No. 1 where the individual instances of misconduct may not have justified dismissal when
considered in isolation.
[42] Turning now to whether the Deputy President erred in failing to consider the gravity of
the conduct in totality when weighing all of the s.387 criteria including an assessment of
harshness. In the present case Queensland Rail says that had the Deputy President properly
weighed all of Mr Rainbow’s conduct in assessing whether the dismissal was harsh, he would
have concluded that the gravity of the aggregated misconduct would have been greater such
that factors going to the harshness of the dismissal considered at s.387(h) would been
insufficient to displace the valid reason for dismissal. This ground of appeal is rejected for the
following reasons.
[43] Firstly, the Commission is not compelled to follow a particular approach. As made clear
in Mt Arthur, there is a broad discretion and no one analysis of s.387(h) that is required.
Secondly, a fair reading of the Decision indicates to us that the Deputy President carefully
considered all of the alleged misconduct and that all that was relevant in his assessment of
harshness when weighing conduct against other factors was that of the valid reason for dismissal
that he found. Finally, even if we are wrong on this point and the Deputy President erred in his
approach to weighing the aggregate conduct against factors telling in favour of harshness, we
are not of the view there is any utility in granting permission to appeal on this point. That is
because in our view the established conduct pointed to by Queensland Rail, that of the
“foreigner” and “rough language” used by Mr Rainbow falls at the low end of seriousness and
would not have been significant enough, even when considered with the rail line safety breach,
to displace those factors telling in favour of a finding of harshness.
[44] As no appealable error is disclosed we decline to grant permission to appeal in respect
of grounds 1(a), (b) and 2(a).
Grounds 1(c),(g) and 2(b),(g)
[45] The Respondent contends by grounds 1(c) and 2(b) that Deputy President erred by
failing to determine that the use of inappropriate and/or unprofessional language, particularly
in the context of prior warnings, constituted a valid reason for Mr Rainbow’s dismissal.
Grounds 1(g) and 2(g) concern a contended failure of the Deputy President to give appropriate
weight to the context of Mr Rainbow’s conduct.
[46] It is apparent on review of the Decision that the Deputy President acknowledged the
prior instances of Mr Rainbow’s use of intemperate language and had regard to the context in
which the use of the term “shit’ was used by Mr Rainbow in his exchange with Ms Coran on
28 July 2021. That is, the term was used in frustration by Mr Rainbow at the circumstances he
found himself in rather than being directed at Ms Coran, who herself had conceded in her own
evidence that she swore out of frustration from time to time although stating she never swore
at any of her staff29. It is apparent that the Deputy President also took into account the nature
of Queensland Rail’s workplace and observed that the use of “rough language” seemed “hardly
surprising”.
29 Transcript of proceedings held 17 February 2022, at PN921-PN922, Appeal Book p.128.
[2022] FWCFB 147
16
[47] The Deputy President weighed the various matters relevant to whether Mr Rainbow’s
language founded a valid reason for his dismissal and found that it did not. We are not persuaded
that the Deputy President took into account an irrelevant consideration or failed to take into
account a relevant consideration. The finding made was open on the evidence and we discern
no appealable error in the Deputy President’s exercise of his discretion.
Grounds 1(d) and 2(d)
[48] By ground 1(d) and 2(d) Queensland Rail contend that the Deputy President erred in
taking into account that tyre pumping had occurred ‘in the general vicinity of the train line’.
Queensland Rail contend there is a clear difference between parking in a safe area which
happened to be adjacent to the rail line to refill tyres and parking over a live line as Mr Rainbow
had done. They further submit that had Mr Rainbow parked adjacent to the rail line no breach
of safety rules would have been committed.
[49] By taking into account that other vehicles were parked adjacent to the track for the
purpose of pumping up tyres when there was no evidence that those vehicles were parked on
the track, the Deputy President acted unreasonably and illogically according to Queensland
Rail. This was also said to be a significant factual error because it influenced the Deputy
President’s decision that Mr Rainbow’s safety breach was not serious enough to justify
dismissal.
[50] Queensland Rail is correct to point out that there was no evidence of other vehicles being
parked across the rail line but rather having been parked in the vicinity. The Deputy President
specifically referred to the Applicant having been unsure as to whether other employees parked
across the line when conducting ‘foreigners on their vehicles.’30 The Deputy President’s
comments were in the context of his pointing to a tendency of Queensland Rail’s witnesses to
inflate the gravity of Mr Rainbow’s conduct against a background of other employees engaging
in conduct that involved the performance of ‘foreigners’ in the general vicinity of the rail line.
[51] We do not discern from the Deputy President’s comments that he downplayed the
gravity of Mr Rainbow’s conduct of parking across the line because of evidence, which he
accepted, of colleagues parking in the general vicinity of the rail line to perform ‘foreigners’. It
must be remembered that the Deputy President had already found that Mr Rainbow’s conduct
was sufficiently serious as to establish a valid reason for his dismissal. In considering the
harshness of the dismissal it was open to the Deputy President to take into account the approach
of Queensland Rail to other similar, if not identical behaviour in the workplace.
[52] We do not agree that the Deputy President acted illogically or unreasonably in taking
Queensland Rail’s reported approach to other conduct in the workplace into account.
Consideration of such reported conduct was one of the matters taken into account and weighed
along with Mr Rainbow’s ‘long, largely unblemished history’. In our view the Deputy President
was entitled to take all those matters into account. No error let alone appealable error is
disclosed by grounds 1(d) and 2(d) of the appeal.
Grounds 1(e) and 2(e)
30 Decision at [157].
[2022] FWCFB 147
17
[53] By grounds 1(e) and 2(e) Queensland Rail contend that the Deputy President erred in
failing to give proper weight to the importance of compliance with safety procedures. It further
contends that the significance attached by the Deputy President to Mr Rainbow’s safety breach
was so flawed as to constitute a failure to exercise the discretion conferred.
[54] In making these submissions Queensland Rail raised the potential consequences of
heavy rolling stock colliding with either a person or property and point to the Deputy President
‘illogically’ downplaying the significance of the breach by characterising it is only as a
‘technical - negligible – safety breach’. Queensland Rail further submit that the Deputy
President took into account an irrelevant consideration, namely that there was lax and selective
compliance with safety procedures by preferring the evidence of Mr Rainbow’s witnesses over
the evidence of Queensland Rail witnesses who gave evidence regarding the safety culture. The
Deputy President’s assessment of the gravity of Mr Rainbow’s conduct was said to be illogical
and unreasonable on the evidence and led to an erroneous conclusion that that his dismissal was
harsh.
[55] By this ground we discern Queensland Rail’s complaint to be that in weighing all the
s.387 criteria, the gravity attached by the Deputy President to Mr Rainbow’s conduct of parking
across the line was insufficient to displace the other matters going to harshness assessed by the
Deputy President which led to his finding that the dismissal was unfair. In relation to the matters
raised by Queensland Rail in its submission, we make the following points.
[56] Firstly, the Deputy President clearly had regard to the importance of Queensland Rail’s
health and safety systems. That is evident by his conclusion that despite Mr Rainbow’s
“technical” breach which he found had “negligible” risk, the Deputy President accepted that a
breach of this kind “must be met with consequences” and that it did in fact establish a valid
reason for Mr Rainbow’s dismissal. Queensland Rail’s complaint appears to be that the Deputy
President should have viewed the breach more gravely having regard to the potential
consequences of a collision between a train or other rolling stock and a vehicle.
[57] Secondly, we do not accept the submission that the Deputy President inferred it was
open for Mr Rainbow to decide for himself whether the lockout procedure was required. The
Deputy President expressly found otherwise when he said, “I accept that in ordinary
circumstances employees cannot be left to determine which safety procedures they comply with
based on the danger as assessed by themselves”. The fact that the Deputy President placed the
safety breach at a lower order of gravity than Queensland Rail urges the Full Bench apply on
appeal, does not persuade us that the Deputy President inferred that Mr Rainbow was free to
pick and choose which safety policies he followed. That submission is expressly rejected.
[58] Thirdly, we are not persuaded that the Deputy President took into account an irrelevant
consideration that was not supported by evidence, specifically, that there was lax and selective
compliance with safety procedures at the Portsmith yard. The submission of Queensland Rail
goes to the Deputy President having preferred particular evidence of Mr Rainbow’s witnesses
over those of Queensland Rail in respect of safety lapses in the Portsmith yard. As regards the
factual errors, inferences and evidentiary conflicts raised by Queensland Rail in support of this
submission, the following may be said;
[2022] FWCFB 147
18
Contrary to Queensland Rail’s submission, Mr Ingles did give evidence that vehicles
both crossed and were parked on the line when he said in his affidavit that “we regularly
cross the line or have a vehicle on the line without a block.”31
Queensland Rail’s submission that Mr Richardson’s evidence on the safety precautions
taken while a contractor vehicle being parked across the line for a number of hours
earlier on 28 July 2022 was ‘unclear at best’ is misconceived in our view. Mr Richardson
was very clear that no ‘block’ was in place,32 that being a critical safety precaution in
the relevant safety procedure in place at the Portsmith yard (P-RMD-001) according to
Queensland Rail’s Safety Manager Peter Dench.33 Mr Richardson’s ‘uncertainty’ went
to other safety procedures that may have been in place on that day, not to the core issue
of the use of a ’block’. As regards Ms Coran’s evidence that she was unaware of the
contractor vehicle having been parked on the track, that does not weaken Mr
Richardson’s evidence.
Queensland Rail submits that evidence of Mr Eaton34 regarding a shunting incident in
2016, in which he claimed that safety procedures were not followed, was preferred over
the clear evidence of Ms Coran who stated that she was aware of other safety controls
in place. While it is true Ms Coran gave evidence to that effect, she also conceded during
cross-examination in the proceedings before the Deputy President that she was in her
office throughout the day of the 2016 incident and did not oversee every movement her
43 employees managed.35
[59] Having regard to the above, it was open to the Deputy President to take into account the
evidence of other safety incidents at the Portsmith yard that had not attracted a “zero-tolerance
approach” from management when he weighed the gravity of Mr Rainbow’s conduct against
other factors going to harshness. Further, for the reasons earlier set out, we are not persuaded
that the Deputy President failed to giver proper weight to the importance of safety procedures.
No appealable error is disclosed by grounds 1(e) and 2(e) of the appeal.
Grounds 1(h) and 2(h)
[60] Queensland Rail contends that the Deputy President erred by taking into account the
serious allegation that there was “an opportunistic attempt by management to remove the
[Respondent] from the workplace” when, on the evidence before the Commission, a finding of
that nature was not open, or in the alternative not supported by the evidence taken as a whole.
The relevant extract from the Decision is as follows;
“[158] There was some troubling evidence from a number of witnesses who had formed
the view that this particular incident was not properly and realistically evaluated based
on the gravity and seriousness of the breach, or indeed the common practices at the
workplace, but rather an opportunistic attempt by management to remove the Applicant
31 Affidavit of Darryl Norman Ingles, dated 19 January 2022 at [11], Appeal Book at p.184.
32 Transcript of proceedings held 17 February 2022, at PN268, Appeal Book at p.67.
33 Witness Statement of Peter Dench at [8]-[10], Appeal Book at p.221.
34 Affidavit of Ian Matthew Eaton, Dated 20 January 2022 at [9], Appeal Book at p.219.
35 Transcript of proceedings dated 17 February 2022 at PN798-PN799, Appeal Book at p.117.
[2022] FWCFB 147
19
from the workplace. The evidence given by the three workers suggested that there had
been other, arguably more serious, incidents which had not been met with the same zero-
tolerance approach to safety. I accept there was not any independent evidence of these
incidents during these proceedings, but I was satisfied that each of the Applicant’s
witnesses were credible and honest and therefore see no reason not to accept their
testimony. In respect of one such incident, Ms Coran said it had never been directly
reported to her. However, Mr Richardson’s evidence was that it need not have been
reported because it was blatantly obvious to anyone on site that day, including Ms
Coran.”
[61] As is apparent from the above passage from the Decision, the Deputy President pointed
to “troubling evidence” from certain witnesses as to views they formed regarding the incident
of 28 July 2021 being used as a means of exiting Mr Rainbow. The Deputy President then went
on to refer to evidence suggesting there had been arguably more serious incidents that had not
been met with a zero tolerance approach by Queensland Rail. Immediately following that
reference to evidence of other safety incidents, the Deputy President acknowledged that there
was no independent evidence of “these incidents” but was satisfied that each of the “Applicant’s
witnesses were credible and honest” and therefore saw “no reason not to accept the evidence”.
[62] We are not persuaded that paragraph [158] reveals that the Deputy President took into
account the allegation or made a finding that Mr Rainbow’s dismissal was an “an opportunistic
attempt by management to remove” him. Rather, a fair reading of the paragraph and the
Decision as a whole indicates that the Deputy President simply took into account evidence of
other safety incidents not having been pursued as vigorously as Mr Rainbow’s conduct on 28
July 2021. That finding was open on the evidence of Mr Rainbow’s witnesses who were found
by the Deputy President to be “credible and honest”. In our view, that finding falls well short
of a conclusion that Mr Rainbow’s dismissal was an opportunistic attempt by Queensland Rail
to remove him or that such a finding was taken into account by the Deputy President.
[63] It follows from the above that no appealable error is disclosed by grounds 1(h) and 2(h)
of the appeal.
Grounds 1(f), 2(c)and 2(f)
[64] By these grounds of appeal, Queensland Rail contends that the Deputy President erred
in finding that Mr Rainbow’s conduct was not a reckless breach of safety procedures and failed
to give proper weight to the fact that Mr Rainbow chose to act in contravention of a safety
policy known to him without justification.
[65] Queensland Rail argue that the Deputy President found that Mr Rainbow’s conduct in
parking his car on the live rail line was deliberate but then illogically held that it was not “a
reckless breach of safety procedures”. Queensland Rail refers to Mr Rainbow’s experience, his
day to day familiarity with the site, his deliberate conduct of breaching the rail line lock out
procedure which had the potential to cause a significant collision and that it was not for him to
unilaterally assess the risk.
[66] Contrary to Queensland Rail’s submission, we do not accept there is a tension between
the Deputy President’s correct conclusion that Mr Rainbow’s action of parking across the rail
line was a deliberate breach of the relevant safety policy and his subsequent finding that the
[2022] FWCFB 147
20
action was not a “reckless breach of safety policies.”36 A reckless breach of safety procedures
connotes an action that is heedless of the danger or consequences. The Deputy President’s
analysis of Mr Rainbow’s conduct reveal that Mr Rainbow was not oblivious or wilfully
indifferent to the consequences of parking over the rail line. The Deputy President observed
that Mr Rainbow was armed with a two way radio and would have been aware of any train
movements or shunts. Further, he was also aware that no train was due to arrive until 45 minutes
after the incident on 28 July 2021. These were factors clearly taken into account by the Deputy
President in assessing whether the conduct was reckless.
[67] It follows from the above that we are not persuaded that the Deputy President erred in
finding that the Applicant’s safety breach was not “reckless”. We again note for completeness
that while the conduct was not found to be “reckless” it was nonetheless found by the Deputy
President and correctly in our view, to be of sufficient gravity as to establish a valid reason for
Mr Rainbow’s dismissal. No appealable error is disclosed by this ground of appeal.
Ground 3
[68] Ground 3 concerns contended error of the Deputy President in determining that the
dismissal was unfair and ordering reinstatement. Specifically, the factors going to the harshness
of Mr Rainbow’s dismissal traversed by the Deputy President are said by Queensland Rail to
not weigh so heavily in his favour as to displace the valid reason for his dismissal. It further
contends that when errors identified in other appeal grounds are taken into account, it is clear
that the Deputy President’s conclusion that the dismissal was unfair was attended by appealable
error.
[69] Turning firstly to the Deputy President’s conclusion that Mr Rainbow’s dismissal was
unfair. The approach adopted by the Deputy President was orthodox. It is apparent that he
identified those factors pointing to the dismissal as not being unfair, that of the valid reason,
and weighed that against those factors pointing to harshness and concluded that those latter
factors considered at s.387(h) were of sufficient weight to render the dismissal unfair. No error
is disclosed in the Deputy President’s approach or that he failed to take into account relevant
considerations.
[70] Having found Mr Rainbow’s dismissal was unfair, a conclusion not disturbed on appeal,
the Deputy President proceeded to consider a range of matters relevant to consideration of
remedy. These included Mr Rainbow’s concessions and expressed remorse regarding his
conduct, his age and service, the impact of reinstatement on Queensland Rail’s safety culture,
alternative disciplinary measures able to be taken against Mr Rainbow, the absence of
wilfulness or recklessness on the part of Mr Rainbow on 28 July 2021 and the primacy given
by the Act to the remedy of reinstatement in circumstances of an unfair dismissal having been
found.
[71] Having rejected the previous grounds of appeal, we are not persuaded that the discretion
exercised by the Deputy President under s.391(1) miscarried. The matters considered and the
findings made the Deputy President on the question of remedy were open on the material before
36 Decision at [147].
[2022] FWCFB 147
21
him. Read fairly, the reasons for finding that reinstatement was appropriate, are comprehensive
and do not disclose error, let alone appealable error.
[72] Having regard to the above matters and in light of the conclusions reached, we are not
satisfied that appealable error has been identified in the Decision. It is apparent that the Deputy
President applied an orthodox approach to the determination of Mr Rainbow’s unfair dismissal
application.
[73] Further, we are not satisfied for the purposes of s.400(1) that this appeal attracts the
public interest. In particular, we do not consider that:
there is a diversity of decisions at first instance so that guidance from an appellate
body is required of this kind;
the appeal raises issues of importance and/or general application;
the Decision at first instance manifests an injustice, or the result is counter intuitive;
or
the legal principles applied by the Commissioner were disharmonious when
compared with other decisions dealing with similar matters
Conclusion and disposition
[74] For the reasons set out above, we are not satisfied that it would be in the public interest
to grant permission to appeal pursuant to s.400(1) of the Act.
[75] Permission to appeal is refused and the stay order37 is set aside.
VICE PRESIDENT
Appearances:
Mr C Murdoch for the Appellant.
Mr C Watters for the Respondent.
37 PR739820.
THE THE FAIR WORK WORK COMMISSION THE SEAS
[2022] FWCFB 147
22
Hearing details:
2022.
Melbourne (by Microsoft Teams).
May 12.
Printed by authority of the Commonwealth Government Printer
PR744430
