Michael Rainbow v Queensland Rail T/A Queensland Rail - [2022] FWC 589

1

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

Michael Rainbow
v
Queensland Rail T/A Queensland Rail
(U2021/10203)

DEPUTY PRESIDENT LAKE BRISBANE, 16 MARCH 2022

Application for an unfair dismissal remedy – whether the Applicant was not unfairly 
dismissed – the Applicant was unfairly dismissed because while there was a valid reason, 
dismissal was harsh in all the circumstances – where it was appropriate to reinstate the 
Applicant 

[1] Michael Rainbow (the Applicant) contends that he was unfairly dismissed by 
Queensland Rail T/A Queensland Rail (the Respondent), for whom he had worked since 28 
February 1989. The Applicant is trade qualified as a carpenter and fitter and was employed as 
a Cairns Maintainer in the Portsmith Workshop and Depot at the time of his dismissal. He seeks 
an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).    

[2] As the matter could not be resolved by conciliation, directions were issued for the filing 
of material.  A hearing was listed for 17 February 2022, at which the Applicant sought to be 
represented. This was not opposed by the Respondent.  Even so, I was still required to 
consider whether permission ought to be granted under s.596 of the Act. Given the volume of 
evidence and submissions provided by the parties and the nuanced legal arguments involved in 
considering whether the Applicant’s dismissal was unfair, I was satisfied that it would be of use 
to the Commission – and would not unduly prejudice the Respondent – to have the assistance 
of the Applicant’s legal representative. I was also satisfied that the presence of the Applicant’s 
representative would enable the matter to be dealt with more efficiently. Accordingly, I allowed 
Christopher Watters of counsel, instructed by Australian Workplace Law to appear for the 
Applicant. The Respondent was represented by its in-house team consisting of Greer McGowan 
(Employee Relations Manager), Andy Martin (Senior Employee Relations Advisor) and Ellie 
Bowden (Employee Relations Advisor). 

[3] Section 396 of the Act requires that I be satisfied of four matters before considering the 
merits of the Applicant’s application. Neither party disputed, and I am satisfied, that the 
Applicant made his application within the 21-day period required by s.394(2) of the Act, that 
he was a person protected from unfair dismissal (as he earned less than the high-income 
threshold), that his dismissal was not a case of genuine redundancy and that the Respondent is 
not a small business to whom the Small Business Dismissal Code applies.  
Events leading to Applicant’s dismissal 

[2022] FWC 589 [Note: An appeal pursuant to s.604 (C2022/1965) was 
lodged against this decision – refer to Full Bench decision dated 
2 August 2022 [[2022] FWCFB 147] for result of appeal.]

DECISION


AUSTRALIA FairWork Commission




 

http://www.fwc.gov.au/documents/decisionssigned/html/2022FWCFB147.htm


[2022] FWC 589

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[4] On 30 May 2017, the Applicant was issued with a warning in relation to an incident in 
which he had used profanities in breach of the Code of Conduct. 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’”. 

[5] The incident which resulted in the Applicant's termination however occurred at around 
3:15pm on 28 July 2021, when he parked his vehicle (which had his boat attached), over a live 
train line, namely Road 1 at the Portsmith Maintenance Depot, to pump his tyres. There was no 
block (a safety measure which prevents rolling stock from using the line) on the line. The next 
train was not due until 4pm and the Applicant was equipped with a two way radio. 

[6] Sarah Coran, the Manager of the Portsmith Yard, came out from her office and told the 
Applicant that he was committing a safety breach and a foreigner. “Doing a foreigner” is a 
colloquialism accepted within the Respondent’s operations as meaning to do something private 
on company time or using company resources. A conversation ensued between the Applicant 
and Ms Coran, the contents of which was the subject of evidence given by each party at the 
hearing. Both descriptions of the event are detailed below.  It was uncontentious that during 
that conversation the Applicant said words to the effective of “I've had enough of this shit”. The 
Applicant then left for the day. Shortly thereafter the Applicant was suspended from duty and 
asked to attend an interview with the Respondent about the incident. 

[7] That interview occurred on 16 August 2021. The Applicant attended with David Peter 
(a colleague from the Portsmith Yards) as his support person and answered the questions asked 
of him by Sarah Doonan and Amy Cope from the Respondent’s Ethics and Investigations Team. 
During the interview, the Applicant explained that on the day of the incident he had a flat tyre 
so thought he would quickly pump it up. He admitted that his car may have been over the train 
line but said that it was only there for a couple of minutes and he was in charge of the rolling 
stock around the shed, had a two-way radio on him and would have therefore been aware of 
any approaching train or moving shunts. He thought he was being safe. He did not seek 
permission to pump up his tyres because he did not think he needed to. He was on his afternoon 
break before the train came in.  He denied washing his boat but admitted to washing his tyres.

[8] During the interview, the Applicant admitted that he said words to the effect of “I'm sick 
of this shit”. He thought he was on his last warning and that to get in trouble for something as 
simple as that would be silly. He acknowledged that he could have worded it differently, but 
when he saw what he says was the smug look on Ms Coran’s face he had just had enough. He 
said he felt like he had been victimised by Ms Coran and that this was a witch hunt. He said she 
had walked out at the time of the incident looking “like she had had a conquest and she’d won”. 
The Applicant understood that some people had given evidence in the investigation saying that 
they came out of the toilet and had seen the Applicant parked across the line, but he said that 
cannot be true because they could not have seen it from where they said they were. 

[9] On or about 28 September 2021, the Respondent – through the Regional General 
Manager, Mr Brian Sharp – issued a Show Cause Notice requiring the Applicant to show cause 
why he should not face disciplinary action in this matter. Around this time, the Applicant 
engaged industrial representatives, who prepared and submitted a written response on his behalf 
on 8 October 2021. 








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[10] The Applicant was then issued with an undated Termination Notice on 2 November 
2021 after the Respondent found the following allegations arising from the incident on 28 July 
2021 to have been substantiated: 

(a) he had acted in an unsafe manner by stationing his personal motor vehicle across an 
unsecured train line at Portsmith Yard without ensuring appropriate protection;

(b) he failed to ensure the appropriate use of the Respondent’s resources by pumping 
up the tyres of his personal motor vehicle and/or washing his boat at Portsmith Yard;

(c) upon being approached by management in relation to his conduct, the Applicant 
made inappropriate and/or unprofessional comments, using words to the effect of 
the following:

i. “I’m sick of this shit”; 
ii. “I know you’ll take it to HR, do whatever you want, I don’t care anymore”; 

iii. “I don’t give a shit”; and/or 
iv. “I’m booking off and don’t know when I’ll be back.””

[11] The Respondent determined that this conduct left the Applicant in breach the Code of 
Conduct and/or the relevant safety policies. 

The case for the Applicant

[12] In short, the Applicant’s case is the termination of his employment was a punishment 
grossly disproportionate to his conduct. He concedes he made errors of judgement on 28 July 
2021 that may have given rise to a technical safety breach. He accepts that he used bad language. 
He is remorseful for his actions but asserts that termination was too harsh a punishment for a 
man that has worked diligently and responsibly for the Respondent for 33 years and who, given 
his age and skills, is unable to readily secure alternative employment. He asserts that he was 
targeted by Ms Coran and that on any reasonable view the termination of his employment was 
a grossly disproportionate consequence for his actions. On that basis, he asserts that he was 
unfairly dismissed and seeks reinstatement. 

[13] The Applicant gave evidence on his own behalf. He also called as witnesses Darryl 
Ingles, Michael Richardson and Ian Matthew Eaton. 

Evidence of the Applicant 

[14] The Applicant says he has been a dedicated and responsible employee of the Respondent 
for 33 years. Up until recently, he had not had any previous conduct or performance issues. 
However, since Ms Coran became his manager, there have been two warnings issued, with 
respect to bad language. The Applicant thinks that Ms Coran does not like him and has been 
targeting him, with the intention of removing him from the Portsmith Yard. 

[15] In respect of the incident on 28 July 2021, the Applicant asserts that he was in charge of 
the workshop that day and therefore had control of the shunts. No trains could move, arrive, 
shunt or otherwise create a safety risk without his knowledge. At around 3-3:15pm that 
afternoon, whilst the Applicant was on a break, he brought his car from the staff car park to the 
workshop to pump up its tyres using the workshop compressor and air hose. His boat was 
attached to the back of the car. His car was parked on the line. He was equipped with a two-
way radio and further, knew that no movement at the station was expected until between 4:00 
and 5:00pm that day. He set about filling his tyres and washing them. 








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[16] Ms Coran approached the Applicant and asked what he was doing. He told her he was 
pumping up his tyres and she responded that it was an unlawful use of the Respondent’s 
resources. The Applicant told her that she must be kidding; air is free. The Applicant says that 
Ms Coran knows this because he has seen her get foreigners done on her own car at the 
workshop all the time. 

[17] Ms Coran then told him that his car was parked on the line  and therefore was 
committing a safety breach. The Applicant again said that she must be kidding. He explained 
that he had the two-way radio, was in charge of the workshop that day and knew that the next 
shunt was not due until between 4:00 and 5:00pm, so there was no safety risk. The conversation 
continued and while the Applicant does not remember what exactly was said, he felt badgered 
by Ms Coran. Eventually he responded with words to the effect of “I’ve had enough of this 
shit”, to which she said that she would be reporting him for that language as well. He recalls 
her smiling and walking off. The Applicant clocked off and went home so as not to lose his 
cool or say something he might regret.

[18] The Applicant admits to having sprayed water on the boat wheels, but categorically 
denies Ms Coran’s allegation that he washed his boat. 

[19] Prior to the Respondent’s decision being made to terminate his employment, the 
Applicant asserts he was not given a proper opportunity to respond with respect to the severity 
of termination as the penalty for his conduct.

Evidence of Darryl Norman Ingles

[20] Mr Ingles has been employed by the Respondent since 1981. He moved to the Portsmith 
Yards in 1995. In his affidavit, and again during the hearing, Mr Ingles indicated that he gave 
evidence voluntarily though he understood that by doing so, he may make himself a target of 
Ms Coran, who he says does not like it when anyone speaks out.

[21] Mr Ingles was at work on 28 July 2021 but did not witness the incident which led to the 
Applicant’s termination. He says he did however witness something relevant, namely that at 
around 3:00pm, Regan Johnson came into the supervisor’s office (which is next to his) and 
started speaking with Ms Coran. He did not hear what Ms Johnson said but he heard Ms Coran 
respond loudly with words to the effect of, “He’s fucking what? Right. I’ll fix him. I’m gonna 
sort this right now”. Mr Ingles could not then recall the exact words but he says they were to 
the effect of “I'll fix this situation.  I'll get him”, and there were swear words involved. When 
pressed on whether Ms Coran had said, “fix it” or “fix him”, Mr Ingles maintained it was the 
latter. He heard Ms Coran say that Ms Johnson could come too but she did not.  Mr Ingles 
recalls Ms Coran storming out of her office and marching towards the workshop. Mr Ingles 
went outside to see what was going on but could see nothing from the office.

[22] It came to Mr Ingles’ attention the next day that the Applicant was on report for a safety 
breach of parking his car on the line, without implementing a block. This struck him as strange 
given there had been no shunts due until 4:00pm that day and he had seen others doing the same 
thing in the past. He was also confused as to why it would be a safety risk given that a warning 
siren would sound when a shunt is on or a train is moving in the yard. He also thought the 
response was extreme given that employees regularly parked across the line or had a vehicle on 








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the line without a block. In fact, he says staff often cross the lines with the buggy and forklift. 
It is common when materials and supplies need to be moved.

[23] A few days later, Ms Coran called Mr Ingles into her office and told him that HR 
required him to be a witness in relation to the incident. He sent an email of what he knew leading 
to the event.

[24] Mr Ingles said there had been other people moved on because Ms Coran had taken a 
disliking to them. He says around the yard she is called, “Sack ‘em Sarah” because it is 
understood that if she does not like you, she will get you one way or another.   

Evidence of Michael Richardson

[25] Mr Richardson has been employed by the Respondent for over 20 years. In his affidavit, 
and again during the hearing, Mr Richardson indicated that he gave evidence voluntarily though 
he believed that in doing so, he may make himself a target of Ms Coran, who he says does not 
like anyone who speaks out.

[26] Mr Richardson was at work on 28 July 2021 but did not witness the incident which led 
to the Applicant’s termination. He says he did however witness something relevant, namely that 
earlier that day, he saw a truck parked across the line leading up and into the workshop. It had 
been parked there by private contractors for most of the day. As far as Mr Richardson was 
aware, there was no block on the line throughout that period.  He says he was aware that Ms 
Coran did not inquire, investigate or take any action in respect of that vehicle. Mr Richardson’s 
opinion was that this constituted the same, if not more serious, safety breach than the one the 
Applicant committed.  He acknowledged that he had not formally reported the breach but noted 
in cross examination that Ms Coran was outside so should have seen it herself. 

[27] Mr Richardson stated that since the Applicant’s dismissal, he has witnessed vehicles on 
the line without a block or other safety measures in place. He said that the Applicant’s parking 
of his vehicle across the line was not an isolated incident but rather there are buggies, forklifts 
and shunt tractors, “travelling up and down there all day.  If you had to lock the lines off all 
day, you'd be locking off, unlocking, locking off, unlocking.  It would just be constant.” 

[28] Mr Richardson said that the Applicant was pumping his tyres to go home. He says 
people do that all the time, although he acknowledged that he did not know exactly where each 
person who he had previously seen pumping their tyres had parked. 

[29] His evidence was that a shunt moves at walking speed and that every time there is a 
train that is going to move through the workshop, a siren sounds to let everyone know it is 
coming. Similarly, “the bloke that's doing it with the shunters for the people that are moving 
the rolling stock, he will have a two-radio on and he will be in touch with the coordinator and 
the shunters to know what’s going on at all times”. Mr Richardson understood that the Applicant 
was “that bloke” on the relevant day; he was equipped with a two-way radio and was in charge 
of Road 1. 

[30] In cross-examination, it was put to Mr Richardson that it was not possible to necessarily 
predict when a train is coming in. He rejected that notion stating, “you'd know exactly when a 
train is coming in.” When pressed, he continued: 








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“Of course you would. We've got two Kuranda trains. We know every train that's in the 
yard. We know exactly where they are and where they're going at all times. It's not 
Brisbane or some big station. We know every carriage, every bit of rolling stock in the 
yard. We know when it's moving and when it's not moving.”

[31] Mr Richardson also alleged that if Ms Coran takes a disliking to a particular employee, 
she will find a way to get them. He believes that is what happened to the Applicant because it 
was clear to him that the Applicant was treated differently to others who committed the same 
or more serious safety breaches.

Evidence of Ian Eaton

[32] Mr Eaton was a former employee who had worked for Respondent for 42 years and had 
been at the Portsmith Depot for the last 37 years. He used to be the safety representative so was 
aware of the requirements for locking out the rails and using the safety siren. 

[33] Mr Eaton echoed the evidence of the Applicant’s other witnesses that Ms Coran targets 
people she dislikes to get rid of them. He says he had first-hand experience of it, because she 
made his working a “living hell to the point that [he] resigned to get away from her.”  Mr Eaton 
says Ms Coran’s bullying and harassment of him began around 2 June 2016 when he reported 
an incident in which a train was shunted through the diesel shed without the use of the shunt 
alarm and without lookouts on the ends of the shed. This was a major safety breach. He had 
identified the risk because he was aware of the sounds made in the yard, but there was a young 
painter who did not have the experience Mr Eaton did and could have been placed at 
considerable risk. Mr Eaton says Ms Coran encouraged him not to report the incident but he 
did so anyway. Her behaviour towards him intensified from then. He was issued with a 
“communication of expectations” relating to his alleged swearing at work which he thought 
was in retaliation of him filing an incident report in respect of the shunting matter. He later 
discovered that his incident report about the safety breach had been altered though he does not 
know by whom. 

[34] After a couple of other interactions with Ms Coran, Mr Eaton decided to resign. He 
acknowledged though that prior to that another person had made a complaint against him, which 
Ms Coran had reported to HR for investigation. The findings of that investigation were not 
provided to him before he resigned. 

Submissions 
 
[35] The Applicant accepts that the events described above occurred on 28 July 2021. 
However, he submits they either did not constitute the breaches alleged by the Respondent, or 
even if they do, the matters were not so serious as to warrant the termination of his employment. 

Parking across the line

[36] In respect of the parking of the vehicle across the live lines, it is submitted that although 
a technical safety breach occurred – and indeed the fact that a block was not on the line was 
admitted by the Applicant – it was low risk. That is particularly so given that the Applicant was 
in charge of the workshop on that date. He had control of the shunts and no vehicular traffic 
could move, arrive, shunt or otherwise create a safety risk without his knowledge. This was 
especially so because he was two-way radio equipped at all relevant times and he knew full 








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well that the only possible traffic was a shunt expected on Road 1 between 4:00pm and 5:00pm. 
The incident which led to his termination occurred at 3:15pm. The Applicant asserts that the 
situation was under his control at all times. This should have been immediately recognised and 
considered by Ms Coran who could have, for example, provided a verbal warning or direction 
rather than appearing in a confrontational manner and escalating the situation which in turn 
prompted the Applicant’s heightened reaction and bad language.  

[37] The Applicant readily admits that he did a foreigner by bringing his private vehicle up 
to the workshop to inflate its flat tyre. He was on his break at the time. While it is not in dispute 
that he used one of the Respondent’s air-hose to affect his purpose, the Applicant submits that 
air is a free commodity and is not owned by anyone, least of all the Respondent. By inflating 
his flat tyre, the Applicant asserts that he was in fact attending to and securing his own personal 
safety (as required by the Respondent) because otherwise he would have had to make his 
journey home with a flat tyre. 

[38] Further, he submits that by taking the Applicant to task for stealing air, Ms Coran was 
escalating the situation, thereby provoking the Applicant and prompting his use of bad 
language. Under cross-examination, the Applicant submits that Ms Coran faltered as to what 
was said to the Applicant when she first approached him. While she initially denied saying that 
the Applicant was misusing the Respondent’s resources, the Applicant submits that she recanted 
from that position during her evidence. Relevantly, the Applicant’s evidence is firm on this 
point and he was not cross-examined on it.

[39] The evidence provided by the Applicant’s witnesses implied that conducting foreigners 
on personal vehicles is an accepted practice at the site.

[40] As to whether or not the Applicant washed his boat, he categorically denies that he did 
so and says he only sprayed water on the boat wheels. 

Bad language 

[41] The Applicant concedes that he reacted badly and used the word “shit” when responding 
to Ms Coran. However, the Applicant submits that the swearing was not vulgar, crude or 
obscene – he said “shit”, not anything more offensive or colourful – and the language was not 
directed to or used toward Ms Coran, but rather at the situation the Applicant had found himself 
in. Further, after recognising his mistake, the Applicant clocked-off, removed himself from the 
workplace and went home to “cool down” so as to defuse the situation.

[42] The Applicant submits that his response should be viewed in light of all of the 
surrounding circumstances. In particular, that Ms Coran’s entire approach and handling of the 
incident was inappropriate. The situation could have been defused by approaching the 
Applicant and warning him that he should not be parked across a live line and that he needed 
to immediately remove his vehicle. Instead of attempting to deal with the matter herself, Ms 
Coran immediately told the Applicant he would be placed on report.  He also believed that Ms 
Coran was “smug” and appeared happy to have caught him out in a technical safety breach.

[43] Another important piece of evidence when considering the Applicant’s use of bad 
language is that given by Darryl Ingles, who stated that on the date of incident he heard Ms 
Coran while in the Depot office, say in a loud voice, “He’s doing fucken what?” The Applicant 








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accepts that Ms Coran denied this under cross examination, but submits she faltered on this 
point when further examined on it.

[44] The Commission has held in several cases that the mere act of swearing at work is not 
sufficient to terminate someone’s employment. Further, the context, environment and type of 
workplace will also impact on the circumstances must be considered when evaluating the 
severity of the transgression. Similarly, extremely crude and obscene language is to be treated 
differently to common swear words.  The Applicant referred to the decision of Smith v Aussie 
Waste Management Pty Ltd, in which an employee who told his manager “you dribble shit – 
you always dribble fucking shit” could be disciplined, but that the termination of his 
employment was harsh and unreasonable in the circumstances and his reinstatement was 
ordered.1

Ms Coran

[45] The Applicant further submits that the present case involves a manager, Ms Coran, who 
was biased against the Applicant. The Applicant asserts that she seized upon any opportunity 
to paint the Applicant in the worst possible light. The Applicant says this is demonstrated by 
the fact that there were other more serious safety breaches, which lasted longer than the 
Applicant’s foreigner, under supervision and control of Ms Coran which she neglected to take 
similarly swift and strong action against.

[46] In particular, the Applicant points to the investigation report in which there is 
independent evidence of serious safety breaches which also occurred at the Portsmith 
maintenance depot on 28 July 2021 but went unreported. Such contravention was more serious, 
longer in duration and under the direct line of sight and control of Ms Coran, although under 
cross-examination Ms Coran denied any knowledge of this breach. With respect, the Applicant 
submits that Ms Coran must have been the only person at the Portsmith Depot that day who did 
not know about it. Both Mr Ingles and Mr Richardson give evidence of these type of safety 
breaches occurring not infrequently at Portsmith. In fact, under cross examination of Mr Ingles 
and Mr Richardson on this point, the Respondent’s approach appeared to be to assert that they 
(Mr Ingles and Mr Richardson) had committed a breach by failing to report, and by doing so, 
were in contravention of the Code of Conduct. Neither witness was deterred by such an 
accusation, and both remained steadfast in their evidence. The Applicant submits that this 
evidence supports the statements of the Applicant throughout his recorded interview that Ms 
Coran was targeting him. Such circumstances demonstrate that the Applicant was being treated 
differently to others in the workplace.

[47] Mr Eaton also gave evidence of a lackadaisical safety attitude at the Portsmith Depot. 
He gave evidence of the movement of a diesel locomotive through the workshop without a lock 
on the line and without the use of the shunt siren sounding. Mr Eaton’s evidence is that after he 
reported this matter, someone changed his safety breach report and Ms Coran engaged in 
retaliation against him for making the safety breach complaint. Ms Coran was cross-examined 
in some detail on this matter. At first, she gave concrete and first-hand evidence as to the safety 
procedures in place, including a claim that a “lockout’ had been placed on the line (specifically 
denied by Mr Eaton). However, under further cross-examination it was established that Ms 
Coran was in her office and not present when the alleged breach occurred. It is submitted that 
there is nothing wrong with a manager being in her office while at work. In fact, being in the 

1 Smith v Aussie Waste Management Pty Ltd [2015] FWC 1044.








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office may be a large part of her day. However, to give evidence as to what was occurring up 
at the diesel workshop when she was nowhere near the relevant incident is at the very least 
disingenuous, if not a fabrication as to what occurred. Mr Eaton also gives evidence as to the 
lengths Ms Coran went to remove him from the workplace. While it is a matter for the 
Commission, it is respectfully submitted that the use of Complaint, HR Grievance and Code of 
Conduct procedures by Ms Coran against Mr Eaton is strikingly similar to the “3 strikes” 
approach used against Mr Rainbow.

Evidence of Mr Dench

[48] The Applicant submits that Mr Dench’s evidence was instructive as to various safety 
procedures and protocols including two-way radio, shunting sirens, allocated line-spaces for 
the movement across live tracks of small vehicles and so on. He spoke of the need and practice 
of securing a “lock-out” on a line where there is going to be a block on the line for “any 
reasonable amount of time”. While this is a common-sense approach to the application of the 
safety procedure, nowhere in any of the Respondent’s safety policy and procedure documents 
can a reference be found to “a reasonable amount of time”. 

[49] The Applicant asserts Mr Dench came into possession of a hearsay account about the 
Applicant’s alleged breach. He has no personal knowledge and did not witness the event. This 
begs the question as to whether Mr Rainbow’s vehicle was parked on the line for “a reasonable 
amount of time”. The Applicant’s evidence is that he appears to have been stopped on the line 
for five minutes, which in the circumstances may not constitute “a reasonable amount of time” 
thereby avoiding the necessity for a “lock-out” to be placed on the line.

Evidence of Mr Benstead

[50] Despite being the Respondent’s decision-maker responsible for the termination of the 
Applicant’s employment, the Applicant asserts he appeared to have limited knowledge of the 
case, remained uncertain as to the grounds for termination and did not have access to the 
relevant reporting documentation when giving his evidence.

[51] The Applicant asserts that Mr Benstead’s evidence offers little weight to the 
Respondent’s case and, if anything, it demonstrates that key mitigating factors were not taken 
into account in respect of the Applicant’s circumstances, which may of itself be sufficient to 
establish that the decision to terminate was at least harsh and unreasonable.

Unreasonable and harsh in all of the circumstances

[52] The Applicant accepts that there were errors in his conduct on 28 July 2021. He is 
remorseful for his actions and regrets not having made more considered decisions. However, 
he submits that the termination of his employment was not appropriate or justifiable in the 
circumstances and that other disciplinary actions should have been implemented instead. He 
makes the following submissions to proclaim that his dismissal was harsh, unjust and 
unreasonable. 

[53] First, the Applicant is a gentleman of senior years, who has served the Respondent 
dutifully for 33 years. Termination of his employment has caused extreme financial hardship to 
him and his family, especially given his age, and the fact that he remains unemployed and is 








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unlikely to find employment, due to his specific skill-set and extensive employment period with 
the Respondent. 

[54] Second, notwithstanding his two previous warnings, the Applicant was a valued 
employee in the maintenance depot at Cairns. He was feeling the stress of COVID-19 – given 
his age – which may also have impacted his elevated conduct on 28 July 2021. This, he submits, 
should also have been taken into account.

[55] Third, while the Respondent appears to “hang its hat” on the Applicant’s safety breach 
as warranting his dismissal, there is evidence to suggest that not all safety breaches are treated 
with this level of force. This history of safety breaches as described by the Applicant’s witnesses 
demonstrate that the Applicant’s alleged breach was minor (at worst), especially given that he 
had other safety controls in place. Further, their evidence indicates that there existed a flippant 
safety culture at the Portsmith Depot, from management down. To punish the Applicant with 
the most severe of penalties is grossly disproportionate to his conduct and overly harshly when 
compared to the approach taken with others. 

[56] Fifth, the evidence provided by Mr Dench – the decision-maker with respect to the 
Applicant’s termination – indicates that he did not fully understand the nuances of the 
Applicant’s situation. 

[57] Sixth, the evidence of QR’s own safety expert, Mr Dench confirms that the requirement 
for a lockout to be engaged as a safety requirement is dependent on a block (vehicle etc) being 
across the line for “a reasonable amount of time”. A reasonable amount of time is not defined 
in the Respondent’s safety policy and procedure tendered in evidence, and it is therefore 
submitted that the Respondent has failed to establish the alleged safety breach to the requisite 
standard.

[58] The Applicant accepts that some action may have been appropriate in relation to his 
conduct on 28 July 2021. However, in light of all of the facts and circumstances of this case, he 
claims that to dismiss the Applicant was harsh, unjust and unreasonable because that penalty 
was disproportionate to the alleged breaches.

The case for the Respondent

[59] The Respondent’s case is essentially that safety comes first. Always. They say the 
Applicant committed a safety breach on 28 July 2021 and an appropriate investigation was 
conducted into that breach. The Respondent asserts that safety is its priority and that non-
compliance with safety procedures cannot be tolerated in the high-risk environment in which it 
operates. That is why the decision was made to terminate the Applicant’s employment.

[60] Further, the Respondent asserts that the Applicant’s response at every stage of the 
investigation and disciplinary process and the Applicant’s continued assertion that the 
substantiated safety breach was minor fails to appreciate how such an attitude directly affects 
the culture of safety at Portsmith and demonstrates an unacceptable and unjustified sense of 
immunity to the rules; rules that are ordained upon the Respondent through rail safety law. 








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Evidence

[61]  The Respondent relied on the evidence of Peter Dench (Manager Regional Safety), Ms 
Coran, James Benstead (Head of Regional) and Adrian Galea (Principal Consultant Ethics and 
Integrity). 

Evidence of Peter Dench

[62] Mr Dench is a Safety Manager with the Respondent. In total, he has worked for the 
Respondent for five and half years but has been in his current role for about 18 months.  He 
was able to provide evidence regarding the lock-out procedure, which he said sets out the key 
steps and requirements that are required for the workers to access the track to work safely. If a 
piece of rolling stock hit a person, there would be real risk to their life. Similarly, the 20 to 
30 tonnes of metal would cause considerable damage to any property or infrastructure it 
impacted. The implementation of this procedure, Mr Dench says, is a key risk control for the 
prevention of collision risks within the depot.

[63] When asked whether there were occurrences which are contrary to the lock-out 
procedure, Mr Dench said “No, because they're not working on the track.” When asked what 
he meant by working on the track, Mr Dench said it would be “any task that causes somebody 
to occupy a piece of track, a section of track for any period of time”. When asked if his evidence 
was that any task that requires a person or vehicle to occupy a piece of track for any period of 
time would require lock-out provisions, Mr Dench stated that, “if somebody is obstructing a 
track i.e. stationary, whether that be to park a vehicle, whether that be to undertake maintenance 
on the track, or move a piece of rolling stock, then that would constitute work – or that would 
constitute obstructing a track, which requires protection to be put in place”. Such protection 
would be a lockout.

[64] Mr Dench became aware of the incident when it was raised by Ms Coran during an in-
person meeting with the rolling stock depot managers in Brisbane. She indicated that she was 
dealing with an ongoing matter involving the Applicant. After being asked to provide advice 
into this matter – about a month before the hearing – Mr Dench investigated the Applicant’s 
training log and identified that the Applicant had been trained in the local lockout procedure 
most recently on 21 June 2019.

[65] Based on the information in the Applicant’s statement and the incident report, Mr Dench 
asserts that the Applicant failed to comply with any of the safety requirements to access track, 
as outlined in the procedure. Mr Dench’s evidence was that by not following the lockout 
procedure, the Applicant had circumvented a written direction (being the local procedure). The 
site rules do not allow for, to the best of his knowledge, a personal vehicle to be parked across 
a live track regardless of the location.

[66] As to the movement of other vehicles, Mr Dench states that there were yellow lines 
which demarcate where they may move throughout the yard. Sometimes, these cross tracks or 
run through the sheds. The task for which they are crossing the tracks is predefined and the 
nature of the task is that they are not physically obstructing the main piece of track for any 
period of time so they are able to pass across it, essentially as an administrative move, without 
needed to implement a lockout.








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12

[67] Mr Dench stated that the Applicant is not a supervisor, nor is he involved in scheduling 
train movements. Rail movements can therefore change without his knowledge. The Applicant 
should have ensured that blocks were set in lock to divert traffic, blocks applied, stop boards 
erected and a personal isolation rock applied to prevent any potential for rail traffic to travel on 
the line on which he had parked his car.  Mr Dench described the Applicant's behaviour as 
“wilful and reckless” and as evidencing an unacceptable level of risk tolerance. 

[68] Mr Dench also had not been made aware of a truck allegedly being parked across the 
track for an extensive period on the day of the incident involving the Applicant. He said that it 
would be the responsibility of whoever first saw the incident to report it. This could have been 
Mr Richardson, or indeed, Ms Coran if she had seen it. The first that Mr Dench had heard of 
that incident was when he was reviewing the materials in preparation for the hearing. 

[69] Mr Dench said he was not aware of any similar incidents occurring at Portsmith or in 
other areas of the business. He was surprised to hear of the incident because in his experience 
visiting Portsmith, the lockout was vigorously enforced and no such incidents had been reported 
to him. He was not familiar with the incident referred to by Mr Eaton, noting that it had 
allegedly occurred before he entered the role.  Further, he said he had never seen buggies or 
forklifts parked across a live track or had any such incidents reported to him. 

Evidence of Sarah Coran

[70] Ms Coran has worked for the Respondent for 20 years and is currently the manager at 
Portsmith. She manages around 43 employees and is responsible for ensuring that they have a 
safe work environment and everything they need to perform their job safely and efficiently. 

[71] She says that on 28 July 2021, she left her office and walked to the bathroom. As she 
walked outside the building, Brett Munro and Regan Johnston were near the doorway and 
pointed out to her that the Applicant appeared to be cleaning his car. She noticed that his vehicle 
was parked across the rail line. Ms Coran maintained that the incident was visible from that 
position despite being pressed in cross-examination. After collecting her appropriate personal 
protective equipment, Ms Coran and Mr Munro approached the Applicant. She noticed that the 
line had not been locked out.  She asked him what he was doing and whether the vehicle was 
his. The Applicant told her that he was pumping up his tyres on his vehicle.  

[72] Ms Coran told the Applicant that he had not put a lock on the line, that he was parked 
across a live rail line and that he therefore committed a safety breach. She says the Applicant 
became agitated and then “lost it”, saying “I know you'll take it to HR, do whatever you want, 
I don't care anymore, I'm sick of this shit. I'm booking off, I don't know when I'll be back” or 
words to that effect. She recalls him going into the workshop, presumably to get something, 
saying, “I'm sick of this shit” and leaving.

[73] Ms Coran then checked to ensure the area was safe and reported the matter to her 
manager, Andrew Tisdall, before alerting the safety adviser, Brandy Richardson. 

[74] Ms Coran says the Applicant was not in charge of the workshop. Everyone is aware of 
when then set trains move, but rolling stock can moved at any time.  Ms Coran did not observe 
the Applicant to have a two-way radio but conceded in cross examination that just because she 
did not see it, does not mean he did not have one on him.








[2022] FWC 589

13

[75] Ms Coran says that the Applicant has had other incidents of verbally abusing employees. 
She said that on one occasion he had done so towards an administrative officer when asked to 
produce his driver’s licence for compliance reasons. It was for that conduct that he received his 
final warning.  She said there had been another behavioural issue where the Applicant had 
sworn at his colleague, grabbed a needle gun and thrown it across the room but no formal 
complaint was ever made because the other employee did not wish to do so. 

[76] Her evidence was that no other safety incidents occurred on 28 July 2021. Certainly, 
none were reported to her. She says that as employees of the Respondent, all staff have an 
obligation to report any safety incidents or hazards, firstly to their supervisor or manager. At 
Portsmith the first point of contact is generally Mr Munro but if he is unavailable, employees 
come to Ms Coran directly. If it is a safety incident, the first thing that must be done is ensure 
that the area is safe and then the incident is reported through the safety channels and 
investigated.  If there is a HR incident, Ms Coran reports it through the HR chain.

[77] Ms Coran denied that it was quite regular for the lock out procedure to not be applied at 
Portsmith. She asserted that “we ensure that our team are properly trained and the lock-out 
process is completed”. A “strict approach to safety” is taken at Portsmith. When asked about 
the difference between vehicles travelling through designated areas as opposed to working on 
track, Ms Coran stated that when:

“…traversing across rail lines it's our responsibility and part of our training to make sure 
we have personal vigilance, so that's part of our induction, our training for lock-out, just 
to make sure that when you're entering a site that you're always looking around, because 
there's that risk which everyone is aware of, movement of rolling stock.  So when you're 
walking, driving a vehicle across lines, you're required to maintain personal 
vigilance.  When you are working on a line or you have parked a vehicle and you're there 
for a period of time, you are required to apply what we call lock-out protection.  So, that 
will secure the road so that no incoming traffic is able to move through those areas.”

[78] In cross-examination, Ms Coran stated that she had no recollection of saying on the day 
of the incident with the Applicant – as was attributed to her by Mr Ingles – that “He's fucking 
what?  Right, I'll fix him.  I'm going to sort this right now”. She did not believe that she would 
have said those words. It is not in her nature.  When pressed about her own use of colourful 
language, Ms Coran admitted “I may swear.  I would never swear directly at one of my 
employees.”

[79] Ms Coran denies telling the Applicant that his doing a foreigner was “a misuse of QR 
resources”. She maintained that it looked like the Applicant had also washed his boat. 

[80] Ms Coran accepted that the incident occurred at around 3:15pm and that the next train 
was not scheduled for arrival until 4:00pm. However, she said that carriages can be moved in 
and out of the maintenance shed at any time. Ordinarily, if shunting was to occur, he would be 
made aware if he was within the vicinity either by the persons undertaking that task, by radio 
or otherwise by the sounding of the sirens. 

[81] Ms Coran asserts that she was not aware of the incident involving the contractors 
blocking the line or the truck being parked across the line for an extensive period. In response 
to questions about those incidents, Ms Coran stated that, “it was their [Mr Richardson and Mr 








[2022] FWC 589

14

Peter’s respectively] responsibility as an employee to report any safety incidents and they failed 
to do so on both occasions.”

[82] As to the 2016 incident involving no sirens being used during a shunt, Ms Coran stated 
that she was in her office. Her evidence was that while ordinarily the shunt of a 300 metre train 
would require the use of a siren, she did not think that the sirens were required to be activated 
in this instance because there were “lookouts in both areas and the movements are controlled 
by all of the operators, so there’s no way that someone could walk across the line, because it’s 
a very extended period of time.  The siren wasn’t activated for an hour or so.  Everyone was 
well informed that these movements were occurring that day.” She acknowledged in cross-
examination that given she was in the office, she did not observe the lookouts on duty. She also 
did not see the young painter walk across the line. She contended she could not oversee every 
movement of her 43 employees. She said she had not given evidence about the incident raised 
by Mr Eaton at the time. 

[83] I put squarely to Ms Coran the allegations made against her with respect to her targeting 
employees to give her an opportunity to respond to the very serious allegations made against 
her by three employees (other than the Applicant). She responded that, “my only belief or 
maybe opinion of that is that I'm a manager who doesn't shy away from inappropriate 
behaviour.  So if someone is being bullied, harassed or there's a safety issue then I will take 
action… Previous management were not that way inclined so the guys would get away with 
things a lot more… I don't tolerate bad behaviour or inappropriate behaviour in my depot.  We 
all are under a code of conduct so I follow that as a responsible manager.” She stated that when 
she first commenced at Portsmith, it was renowned as one of the most unsafe depots, but since 
then work had been done to ensure that employees feel safe reporting safety incidents and 
reporting hazards, “so that's changed tremendously over 20 years”.

[84] She also flatly denied ever having her car worked on, a foreigner done or otherwise 
parking it in the shed.

Evidence of James Benstead

[85] Mr Benstead is the Respondent’s Head of Regional, who reports to the Chief Executive 
Officer. He has been with the Respondent for 13 years. His evidence was that the “safety is our 
number one priority at Queensland Rail, as it is in the regional business. So that is making sure 
that we provide safe and reliable services for our customers that are using our services; that we 
look after the safety of our people and the safety of the community.  And working safely is a 
condition of employment within Queensland Rail and we take safety extraordinarily seriously.”

[86] Mr Benstead received a text message from Martin Ryan, then the Executive General 
Manager of Travel and Tourism who was responsible for the rolling stock maintenance activity 
at that time, advising that there had been a safety incident at Portsmith. Mr Benstead then 
directed during a subsequent phone call that the person involved was not to return to his normal 
duties until an investigation had been completed.

[87] Of the ordinary process leading to a decision to dismiss an employee, Mr Benstead 
stated that, “based on that information the management get involved in a recommendation in 
relation to what are the disciplinary actions that need to take place.  There is a recommendation 
in relation to termination.  In this particular case I endorsed that particular recommendation and 
the final decision is with the chief executive officer of the organisation.”








[2022] FWC 589

15

[88] In respect of the Applicant's termination, Mr Benstead could not recall whether he was 
involved in the decision to commence a show cause process involving the Applicant. Mr 
Benstead stated that from the information that was provided to him and the allegations that had 
been substantiated, suggested that the Applicant was a gentleman with an attitude of “'I don't 
care what you do', 'I don't care what happens', 'I'm leaving now, I don't know when I'll be back 
again'”. 

[89] Mr Benstead stated that the circumstances leading to the Applicant's termination 
included performing a foreigner, being the pumping up of his tyres either on his car or boat 
trailer. Mr Benstead stated that the leadership team's main concern about the Applicant's 
behaviour was the clear and “wilful” safety breach of parking his car across the track.  When 
pressed on why he had used the term “wilful”, Mr Benstead stated it was not a mistake on the 
Applicant’s part (to not lock on the line), he just did it. It was put to him that if the Applicant 
had forgotten, that would not make it a wilful breach. Mr Benstead stated that that was not the 
allegation that had been substantiated.

[90] He says there were also concerns in respect of the Applicant’s reaction to local 
management when approached at the time of the incident. Mr Benstead described the 
Applicant’s reaction as “ridiculous”. He was aware that the Applicant had been involved in two 
previous matters involving the use of inappropriate language, but could not recall what language 
had been used in those matters. In the present matter he was aware that one allegation 
substantiated against the Applicant was that he had said “I'm sick of this shit, and I don't give a 
shit.”

[91] Mr Benstead stated that the Applicant’s disciplinary history was considered as part of 
the decision but acknowledged that they were not included in his statutory declaration. 
However, when asked whether he was aware that but for the two swearing incidents in the last 
18 months, the Applicant had no performance or conduct issues on his record, Mr Benstead 
said he was not aware of that. Counsel for the Applicant stated that was a matter put in the 
Applicant’s response to the show cause, and asked Mr Benstead whether that was not something 
that would ordinarily be considered as a mitigating factor. Mr Benstead responded that “When 
determining disciplinary action we consider the severity of the issue... We do look at years of 
service; we do look at the person's responsibilities and accountabilities; and do take into 
consideration the training, the recognition of safety responsibilities, the code of conduct in 
determining disciplinary action for employees.”

[92] Mr Benstead was asked whether he looked at the severity of penalty and the impact that 
that might have on an employee of such senior years and extensive service. He responded that, 
“We look at - when we're looking at years of service and the training that individuals have, and 
take acknowledgement in relation to what - how we expect people to behave and follow the 
rules, yes.”

Evidence of Adrian Galea 

[93] Mr Galea is the Respondent’s Principal Consultant, Ethics and Integrity. His evidence 
was admitted without the need for cross-examination. He says the disciplinary process followed 
in the Applicant's case is in accordance with the Respondent’s ordinary disciplinary process. 
The Applicant was issued with a show cause letter, which included the statement that 
termination was being considered. It also noted that prior to any decision being made about his 








[2022] FWC 589

16

employment the Applicant would have an opportunity to provide any additional circumstances 
or facts that the decision maker could consider. 

[94] Mr Galea says the Applicant was provided with an opportunity to respond to the severity 
of the matter, as well as the investigation report and its findings before the show cause letter 
was issued. Mr Galea’s recollection was that the Applicant had elected not to respond.

Respondent’s submissions

[95]  The Respondent submits that there was a valid reason for dismissing the Applicant. 
Namely, the substantiation of the allegations as set out above. The Respondent repeatedly 
asserted that it has a relentless commitment to zero harm and working safely is a condition of 
an employee’s ongoing employment. The Applicant is no exception. Complacency in the 
Respondent’s operations can have catastrophic results. The Respondent describes the 
Applicant’s conduct as a wilful choice to disregard safety procedures which goes to the 
Respondent’s legislative obligations. 

[96] As it explained in the termination letter, the Respondent asserts that conduct of 
Applicant, specifically the complacency and assertion that the safety breach was minor, fails to 
appreciate that rail tracks are always considered a dangerous environment. They assert that the 
Applicant’s assertions that his conduct was low risk demonstrates an unacceptable risk 
tolerance. They describe him as wilfully flouting his obligations under rail safety law. 

[97] The Respondent further submits that as a long-term employee, the Applicant would 
appreciate the seriousness in which the Respondent takes safety, both physical and 
psychological. Similarly, they say the pattern of aggressive behaviour for which the Applicant 
has both a warning and final warning on his record, fails to show any accountability or 
willingness to commit to the Respondent’s core values. 

[98] The Applicant did not seek permission to do a foreigner, whether in his break time or 
not. No permission would have been given had it been sought, given it involved parking a car 
on the track. 

[99] Finally, the Respondent also submits that it is inconclusive as to whether he was washing 
his boat, but he at least cleaned the tyres on the boat trailer.

[100] When approached by Ms Coran in relation to his conduct, the Respondent asserts that 
the Applicant made an inappropriate and unprofessional comment to his leader – also described 
by the Respondent as “aggressively using foul language toward a manager” – which was in 
breach of the Code of Conduct only two months after a final warning had been issued against 
him in respect of his use of similar language. It demonstrates a complete disrespect to the 
leadership within the Respondent. 

[101] The Respondent asserts that the Applicant had an opportunity to respond to the 
allegations against him. He chose not to provide a formal response to the investigation report 
when provided the opportunity to do so on 2 September 2021. However, he through his 
representative, responded to the show cause notice dated 8 October 2021. The Respondent 
asserts that the Applicant’s response was considered in deciding the appropriate action. In fact, 
it was the Applicant’s continued claims that his conduct was minor, which contributed to their 
decision to terminate his employment. The Respondent again asserted that such comments 








[2022] FWC 589

17

demonstrate a failure to appreciate that rail tracks are always considered a dangerous 
environment and that complacency should never be allowed to set in. The Respondent says that 
as a long-term employee, the Applicant should have appreciated the seriousness placed on 
safety and understood that foreigners had been actively discouraged by the Respondent.

[102] Further, the Respondent asserts that the Applicant is accountable for his own actions 
and what other people allegedly have done – presumably they are referring to whether Ms 
Coran’s conduct provoked him – cannot be relied upon as an excuse to abrogate himself from 
the Applicant’s own responsibilities. The Respondent maintains that Ms Coran’s conduct was 
entirely reasonable given that it was her role as manager to escalate safety matters. Furthermore, 
Ms Coran did not have the ability to make any disciplinary decisions as that is not within the 
remit of the local manager. 

[103]  The Respondent reiterated that safety always comes first in its operations and that 
working safely is a condition of employment and personal accountability is fundamental. They 
argue that the Applicant wilfully failed to follow safety protocols jeopardising the right of the 
Respondent’s workers, visitors, customers and members of the public to be free from risk while 
in the Respondent’s workplace.

[104] The Respondent rejects the Applicant’s admission that he had an exemplary disciplinary 
record. They say he had at least two warnings about inappropriate behaviour in the workplace, 
which themselves demonstrate an attitude of complacency. 

[105] The Respondent asserts that the Applicant was notified for the reason for his dismissal 
in the termination letter. 

[106] Prior to the issuing of that letter, the Respondent submits the Applicant was able to 
provide a written response on 8 October 2021. They say the Applicant was provided with the 
allegations, notified that he had to attend an information gathering meeting, was formally 
interviewed as part of that process, was invited to provide all relevant information and was 
afforded additional time to seek advice from an advocate. He was never denied a support 
person.

[107] As to the principle of parity, the Respondent submits that it has historically dismissed 
employees for safety breaches alone. The Respondent has also dismissed employees for 
repeating behaviour they have previously been warned about, as is the case here in respect of 
the swearing. The Respondent says that safety breaches and behavioural concerns have been 
dealt with in a consistent manner, noting some differences will exist according to the mitigating 
circumstances for each individual.

[108] As to the Applicant’s personal circumstances, the Respondent was not satisfied that they 
mitigated his conduct because safety was held to be of paramount concern when assessing his 
behaviour and determining the appropriate outcome. The Respondent submits that the mere fact 
an employee has a lengthy history with an organisation does not place them above the rules and 
in fact, on the contrary, supports the notion that they should have known better. 

[109] The Respondent points to Ward v Kimberley Ports Authority as being analogous in 
respect of the issues of safety when compared with alleged mitigating factors such as length of 








[2022] FWC 589

18

service.2 Taking into account the Applicant’s 30-year history in the metal fabrication, mining 
and construction sectors, Commissioner Cloghan concluded that workplace policies and the 
possible consequence of a breach of such policy could not have been foreign to the Applicant. 
The Respondent asserts that the same can be said in this matter. The Applicant, having been 
employed with the Respondent for a lengthy period, was well aware of the stringent safety 
procedures, as well as behavioural expectations under the Code of Conduct and any potential 
ramifications.

Evidence in this case

[110] The Respondent submits that the Applicant’s witnesses provide no relevant evidence in 
relation to the incident that led to the Applicant’s dismissal. They allege safety breaches for 
which they have no evidence, they provide opinion-based commentary, lack credibility and 
occasionally mislead in relation to when particular safety protocols should be used and safety 
policy applied.  Further, the Respondent asserts that the Applicant’s witnesses were clearly 
called to give evidence for the sole reason of questioning the credibility of local management 
and to attempt to show the Applicant had been singled out. The Respondent submits that, 
instead, what was demonstrated was a toxic disregard for management (Ms Coran, specifically), 
who take a consistent approach to improving safety, from both a physical and psychological 
perspective. The Respondent submits that much of the evidence provided by the Applicant’s 
witnesses should not be given weight as it is unable to be corroborated, it is irrelevant to proving 
that the dismissal was unfair, based entirely in perception and opinion or hearsay, was proven 
to be unreliable and represents a very small minority of disgruntled current and former 
employees.

[111] Specifically, the Respondent submits that Mr Ingles did not witness the event and 
therefore his evidence is entirely irrelevant. Mr Ingles alleges he heard Ms. Coran say words to 
the effect of “he’s fucking what..? I’ll fix him”, before storming to the workshop. His 
recollection conflicts with Ms Coran’s evidence, which was that she returned to her office to 
get appropriate personal protective equipment and then asked a colleague to accompany her. 
Mr Ingles also admitted to either regularly crossing the line or having a vehicle on the line 
without a block and that he did not know it was unacceptable but then in cross examination Mr 
Ingles agreed that he is in charge of conducting onsite inductions for contractors, which includes 
the lockout process. Mr Ingles also admitted that he too has a lock for personal use and is aware 
of when to use it. Mr Ingles agreed in cross-examination that Ms Coran’s role includes ensuring 
the overall safety of the site and that it was indeed possible that Ms Coran could have used 
different words to those he put in the affidavit. The Respondent asserts that that the credibility 
of Mr Ingles evidence is questionable. Mr Ingles’ evidence muddies the waters in relation to 
what safety procedures apply at what time, or alternatively, he is not familiar with the 
requirements of his role, or the role of a rail safety worker, further rendering his evidence as 
irrelevant.

[112] As to Mr Eaton, the Respondent says that he too did not witness the incident and his 
evidence is irrelevant. He gave evidence of an incident (on or before 2 June 2016) involving a 
diesel locomotive. He alleged that Ms Coran did not want the matter reported. What Mr Eaton 
did not specify in the affidavit is that there were other safety mechanisms in place at the time 
of the locomotive movement as per procedure at the time of that event. Further, after he raised 
the issue of the alarm not being sounded, Ms Coran took steps to have procedure changed. Mr 

2 Ward v Kimberley Ports Authority [2015] FWC 5449.








[2022] FWC 589

19

Eaton alleges that he resigned as result of bullying from Ms Coran, however Mr Eaton has not 
corroborated those allegations or provided any evidence in support. The Respondent submits 
that Mr Eaton resigned because he was being held accountable for his poor behaviour by way 
of a HR investigation into an entirely separate event. Mr Eaton’s affidavit is selective in detail 
and seeks to paint a picture of Ms Coran that is entirely incorrect. This goes directly to his 
credibility.

[113] As to Mr Richardson, the Respondent asserts that he too did not witness the incident 
and his evidence is irrelevant. His evidence seeks to discredit Ms Coran. In respect of the 
breaches alleged, the Respondent says little evidence was provided. Indeed, the Respondent 
asserts that Mr Richardson was unable to discern which safety procedures should be followed 
for two distinctly different circumstances and as such his evidence should not be relied upon 
by the Commission. 

[114] By contrast, the Respondent says that its witnesses provided expert and unbiased 
evidence that unequivocally clarified the facts that show the Applicant was not unfairly 
dismissed. The Respondent asserts that its witnesses evidenced a clear breach of safety 
procedures, an effective use of the disciplinary process, particularly in instances where an 
employee is on a final warning, a concise and well-articulated stance on safety being the number 
one priority at the Respondent, any breach of which will end in disciplinary action applied 
consistently across its operations. Further, it asserts that the Respondent’s witnesses clearly 
demonstrates that the disciplinary process is largely removed from local Portsmith 
management, and that the decision to terminate employment is considered in detail, including 
mitigating circumstances, at the highest levels of the organisation; specifically, the Head of 
Regional. The Respondent submits that there was simply no other course of action to take than 
termination and that this action was entirely lawful.

[115] Mr Dench outlined the safety procedures in place and spoke of the priorities of the 
organisation at a global, rather than local level and the Respondent submits that this is exactly 
the point the Applicant fails to appreciate. Safety is not open to individual interpretation. It must 
be applied to the letter of the law at all times to avoid complacency and catastrophic incidents, 
which may result in injury and/or death.

[116] As to Ms Coran’s evidence, the Respondent submits that she demonstrates her consistent 
approach and commitment to safety which is fully supported by management. Further, only two 
of the approximately 46 current staff gave evidence in the present proceedings, so it should be 
noted they represent a very small proportion of the current workforce.

[117] In respect of Mr Benstead, the Respondent submits he was well placed to speak to the 
core concerns of the Applicant’s behaviour, being a deliberate breach of safety, a disrespectful 
response to management when questioned about it, particularly given the Applicant was already 
on a final warning. He noted that the decision to terminate a person’s employment with the 
Respondent is considered in detail at the highest level of the organisation, including all 
mitigating circumstances, including a person’s age and years of service. The Respondent 
submits that Mr Benstead’s evidence goes to the unrelenting commitment it has to safety, 
including the consideration of appropriate disciplinary action to be taken when a safety breach 
occurs. 

[118] Finally, the Respondent asserts that Mr Galea’s evidence confirms that the Respondent’s 
disciplinary process was followed.








[2022] FWC 589

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Other matters 

[119] The Applicant admits his breach in relation to the Code of Conduct and his poor manner 
toward management yet continues to pass the blame on to Ms Coran – by alleging that she 
appeared smug or happy to have caught him out – for inciting his inappropriate reaction. The 
Respondent asserts this demonstrates a lack of accountability and a tendency to blame Ms Coran 
for his actions. The Respondent asserts that this only speaks to the credibility of the Applicant 
who fails to understand his responsibilities as a rail safety worker, continues to defy the rules, 
takes no accountability, and believes himself immune from the disciplinary process, with which 
he is well acquainted. It is the Respondent’s position that this demonstrates an attitude, at worst 
of contempt for the rules and at best, a knowing disregard of safety policy obligations and 
protocols and for the expected behaviour of an employee of the Respondent. 

[120] The Applicant agreed that he had completed Code of Conduct training as well as the 
appropriate lockout training for Portsmith and knew he was on a final warning for poor 
behaviour and understood the severity of this. To not dismiss the Applicant for his present 
conduct would make a mockery of the process. 

[121] The Respondent denies that the Applicant was ‘in charge of the workshop’, submitting 
that when pushed on this point in cross examination he admitted that he was not in charge of 
the schedule and shunts could in fact occur without his knowledge which, had this been the 
case, could have given rise to the possibility of significant workplace injury and/or death. Both 
Ms Coran’s and Mr Dench’s evidence addressed the possibility of shunts to change without the 
Applicant’s knowledge.

[122]  The Applicant asks the Commission to consider his remorse, however the Applicant 
felt remorse on the two previous occasions he was warned about foul language and aggressive 
behaviour yet has failed to learn from his mistakes. The Respondent submits that Smith v Aussie 
Waste Management Pty Ltd can be distinguished from the present case because there the 
conversation was a private conversation between two individuals and it was held that there was 
no suggestion that the conduct involved breaches of health and safety policy or regulations. 

[123] The Respondent submits, that a final warning, by its very definition is final. The 
Applicant admitted that he understood he was on a final warning, that neither of the two 
previous incidents involved Ms Coran and that he had been made aware only two months prior 
that should he display the same conduct again, his employment could be terminated. 

[124] The Applicant alleges that Ms Coran was targeting him and that she has practiced similar 
behaviours, such as swearing and doing foreigners on her own car without providing any 
evidence at all to support these allegations.

[125] The Applicant offers an example of other safety breaches occurring by relying on the 
comments made by his support person in the initial investigation. The Respondent submits that 
when read in full, it is clear that the person did not witness but rather ‘was informed’ of the 
event and when pushed in relation to who informed him, no further information is forthcoming. 
Importantly, this safety breach was not reported at any time. The Applicant admitted in cross 
examination that Ms Coran’s ‘badgering’ of him, as alleged, could have been in relation to what 
safety measures he had put in place while having his car parked across the rail line and did not 
disagree that this was part of Ms Coran’s job. In cross examination, the Applicant agreed that 








[2022] FWC 589

21

Ms Coran would have been undertaking her duties by bringing the safety breach to his attention. 
The Respondent therefore submits that it would have been remiss of Ms Coran to ignore the 
breach. 

[126] The evidence provided by the Applicant’s witnesses is contradictory, irrelevant and at 
times, misleading and only goes to demonstrate an attitude of a small portion of past or current 
employees who believe they can abrogate responsibility and apply the rules as they see fit. The 
Respondent submits that there is no evidence to support the blatant character attacks of Ms 
Coran and that the irrelevant, hearsay and unreliable evidence of the Applicant’s witnesses 
should not be considered in the Commissioner’s deliberation.  The Applicant has demonstrated 
an attitude of entitlement to employment, despite demonstrating an unacceptable attitude to 
safety, a toxic disregard for management and complete disrespect for colleagues. 

[127] The Respondent submits that employees cannot be the individual arbiters on whether to 
apply mandatory safety procedures. They are in place to ensure consistency of approach when 
it comes to safety to meet legislative obligations, but also to promote a culture whereby safety 
is respected and complacency is not tolerated. The Respondent submits that employees cannot 
be their own arbiter on what behaviour is appropriate and whether they should face disciplinary 
action as a result.

CONSIDERATION 

Comments about the evidence 

[128] I am grateful for all the witnesses who gave evidence because it allowed me to gain a 
better understanding of the events of 28 July 2021. I also note that the evidence of Fallon Elsner 
which was initially provided was not relied upon.  

[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 








[2022] FWC 589

22

employee. Similarly, she gave evidence with respect to 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. 

Was the Applicant’s unfairly dismissed?

[133] Section 387 of the Act provides that, in considering whether it is satisfied that a 
dismissal was harsh, unjust or unreasonable, the Commission 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); 

(b) whether the person was notified of that reason; 
(c) whether the person was given an opportunity to respond to any reason related to the 

capacity or conduct of the person; 
(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; 
(e) if the dismissal related to unsatisfactory performance by the person – whether the 

person had been warned about that unsatisfactory performance before the dismissal; 
(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; 
(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 Commission considers relevant.

[134] I am required to consider each of these criteria to the extent they are relevant to the 
factual circumstances before me.3

(a) whether there was a valid reason for the dismissal 

[135] The reasons given by the Respondent for the termination of the Applicant’s employment 
were the safety breach of parking his vehicle over the line, doing a foreigner and the language 
used by him in his interaction with Ms Coran. The Applicant does not dispute that he engaged 
in the alleged conduct. The gravamen of the Applicant’s case is that his dismissal was not for a 
valid reason because it was disproportionate to the gravity of his misconduct and that mitigating 
factors were not taken into account or given appropriate weight in the Respondent’s decision to 
dismiss him.

[136] As Vice President Hatcher observed in Raj Bista v Group Pty Ltd t/a Glad Commercial 
Cleaning, establishing a factual basis for the reason for dismissal will not of itself demonstrate 

3 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, 
Lacy SDP, Simmonds C, 21 March 2002) [69].








[2022] FWC 589

23

the existence of a valid reason.4  It must, as s.387(a) makes clear, be a valid reason for dismissal. 
To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”5 
and should not be “capricious, fanciful, spiteful or prejudiced.”6  As summarised by Deputy 
President Asbury in Smith v Bank of Queensland Ltd a “dismissal must be a justifiable response 
to the relevant conduct or issue of capacity. Factually-established conduct which might, for 
example, justify the issue of a reprimand or a warning may not necessarily justify dismissal”.7

[137] In Bista, Hatcher VP referred to the decision of the Full Court of the Federal Court in 
Edwards v Giudice8 as being authority for the proposition that the consideration of whether 
there is a valid reason for dismissal requires an assessment of whether the conduct was so 
serious as to justify termination as a sound, defensible or well-founded response.9

[138] In Smith v Bank of Queensland Ltd, Deputy President Asbury continued to consider 
Hatcher VP’s decision in Bista in the following terms:

“[125] Vice President Hatcher went on to observe that it is well established that a 
dismissal for misconduct may be found to be harsh on the basis that the sanction of 
dismissal is a disproportionate penalty to the gravity of the misconduct, and that the issue 
of proportionality is usually considered having regard to all relevant circumstances of 
the dismissed employee and his or her conduct. His Honour also noted that there is 
divergence in the authorities in relation to whether the gravity of the misconduct is 
considered separately from the factors subjective to the particular employee with the 
former consideration arising under s. 387(a) and the latter under s. 387(h). His Honour 
observed that proportionality of dismissal as discussed by Moore J in Edwards v 
Giudice, was not concerned with proportionality of dismissal in the sense where the 
gravity of the misconduct is weighed against a range of other potentially mitigating 
factors. Rather it was concerned with whether the conduct in question, considered in 
isolation, was intrinsically capable of constituting a valid reason for dismissal if it only 
involved a minor misdemeanour.

[126] I do not understand that there is a rule that the gravity of the misconduct must be 
considered under s. 387(a) devoid of any mitigating factors a dismissed employee may 
raise. While the gravity of the conduct must be considered and assessed, in my view, 
there are some mitigating factors which may also go directly to the validity of a reason 
for dismissal by mitigating the seriousness of the conduct for which a person was 
dismissed. Examples of some of these factors may be lack of training or the dismissed 
employee being placed under undue pressure by some failure on the part of the 
employer, which contributed to the conduct for which the employee was dismissed. 
Those matters may go to the reasonableness of the dismissal on the basis that they 
mitigate the gravity of the employee’s conduct. There are other mitigating factors which 
relate to personal circumstances of the dismissed employee and which may render the 
dismissal harsh, notwithstanding that the gravity of the employee’s conduct justifies 

4 Raj Bista v Group Pty Ltd t/a Glad Commercial Cleaning [2016] FWC 3009.
5 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
6 Ibid.
7 Smith v Bank of Queensland Ltd [2021] FWC 4 [122].
8 (1999) 94 FCR 561.
9 Raj Bista v Group Pty Ltd t/a Glad Commercial Cleaning [2016] FWC 3009.








[2022] FWC 589

24

dismissal. The first category of mitigating factors falls for consideration under s. 387(a) 
of the Act and the second category under s. 387(h).”  (citations omitted)10

[139] All that said, it is not the role of the Commission to “stand in the shoes of the employer 
and determine whether or not the decision made by the employer was a decision that would be 
made by the court.”11 However, the Commission must consider the entire factual matrix in 
determining whether an employee’s termination is for a valid reason.12

[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. 

[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 South32, 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]”.13 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 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.

10 Smith v Bank of Queensland Ltd [2021] FWC 4 [125]-[126].
11 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
12 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.
13 Matthew Gosek v Illawarra Coal Holdings Pty Limited T/A South32 [2017] FWC 4574 [104]. 








[2022] FWC 589

25

[144] Consequently, I am not satisfied that either filling his tyres with air on a break or using 
the word “shit” (despite having been warned for such language previously) constituted a valid 
reason to terminate the Applicant’s employment. 

[145] I turn now to consider whether the Applicant’s conduct in parking his car over the live 
line was a valid reason for his dismissal. 

[146] It is uncontroversial that where the employee’s conduct affects the safety and welfare 
of other employees, the Commission may find that this is a valid reason for the dismissal.14  In 
determining whether there has been a safety breach, the Commission may take into account the 
seriousness of the breach or incident, company policies setting out safety procedures and 
consequences for breaches, relevant training provided by the employer, whether the incident or 
breach was isolated or recurring in nature and whether or not the employee concerned was a 
supervisor and expected to set an example.15  While a substantial and wilful breach of a policy 
may constitute a valid reason for dismissal,16 it does not follow that a finding that an employee 
has failed to comply with policies and procedures immediately means that a dismissal is not 
harsh, unjust or unreasonable. Every case turns on its own facts.17 If widespread policy breaches 
occur without response from the employer, this weighs against a decision that the dismissal was 
justified and not harsh, unjust or unreasonable.18

[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 technical – negligible 

14 For example, Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166; Gottwald v Downer EDI Rail Pty Ltd [2007] 
AIRC 969.

15 Butson v BHP Billiton Iron Ore Pty Ltd [2010] FWA 640 (McCarthy DP, 1 February 2010). 
16 Browne v Coles Group Supply Chain Pty Ltd [2014] FWC 3670 [62]; citing B, C and D v Australian Postal Corporation 

T/A Australia Post [2013] FWCFB 6191 [36]. 
17 B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 [48]; Lee v Superior Wood Pty Ltd 

[2019] FWCFB 2946. 
18 Ibid. 








[2022] FWC 589

26

– safety breach, I am satisfied that the Respondent did have a valid reason to terminate the 
Applicant’s employment. 

[150] However, that finding alone is not determinative of the ultimate question before me of 
whether the Applicant was unfairly dismissed. It is but one matter to which I must have regard 
in determining whether the termination of the Applicant’s employment was harsh, unjust or 
unreasonable.

(b) and (c) whether the person was notified of that reason and had an opportunity to respond 

[151]  I am satisfied that the Applicant was notified of the reason for his dismissal and had an 
opportunity to respond to the allegations. His representatives provided a fulsome response on 
his behalf on 8 October 2021. He may not have had an opportunity to challenge the 
Respondent’s ultimate decision to terminate him by making specific submissions regarding the 
mitigating factors, but he was warned that termination might be contemplated in the show cause 
letter and therefore had an opportunity to address it if he wished. Further, given the 
Respondent’s position it is unlikely that any such submission would have had an impact on the 
ultimate decision. 

(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

[152] The Applicant was not unreasonably refused a support person.  

(e) if the dismissal related to unsatisfactory performance by the person – whether the person 
had been warned about that unsatisfactory performance before the dismissal

[153] This factor is irrelevant to the present case. 

(f) and (g) the degree to which the size of the employer’s enterprise and the absence of 
dedicated human resource management expertise would be likely to impact on the procedures 
followed  

[154]  The Respondent is a large employer with a well-resourced human resources 
department.  The Respondent seemingly followed its own procedures with respect to the 
information gathering process. The decision to terminate his employment was then made by the 
appropriate individuals. Whether they properly exercised their discretion is a matter considered 
in respect of other factors. 

 (h) any other matters that the FWC considers relevant

[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 








[2022] FWC 589

27

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. 

[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.   

[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.

Remedy

[161] Given that I have found that the Applicant’s dismissal was unfair, it is necessary to 
consider the question of remedy. The Applicant has made an application under s. 394 of the Act 
and in my view the Applicant should have a remedy for his unfair dismissal.

[162] Section 390 of the Act provides that: 








[2022] FWC 589

28

“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: 
(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.
Note: Division 5 deals with procedural matters such as applications for 
remedies.”

[163] As to reinstatement, s.391 of the Act goes on to say: 
“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: 
(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 








[2022] FWC 589

29

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.”

[164]  Section 392 sets out the considerations for awarding compensation: 

 “Compensation 
(1) An order for the payment of compensation to a person must be an order that 
the person’s employer at the time of the dismissal pay compensation to the 
person in lieu of reinstatement. 

Criteria for deciding amounts 
(2) In determining an amount for the purposes of an order under subsection (1), 
the FWC must take into account all the circumstances of the case including: 

(a) the effect of the order on the viability of the employer’s enterprise; and 
(b) the length of the person’s service with the employer; and
 (c) the remuneration that the person would have received, or would have 
been likely to receive, if the person had not been dismissed; and 
(d) the efforts of the person (if any) to mitigate the loss suffered by the 
person because of the dismissal; and 
(e) 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 compensation; and 
(f) the amount of any income reasonably likely to be so earned by the 
person during the period between the making of the order for 
compensation and the actual compensation; and 
(g) any other matter that the FWC considers relevant.

Misconduct reduces amount 
(3) If the FWC is satisfied that misconduct of a person contributed to the 
employer’s decision to dismiss the person, the FWC must reduce the amount it 
would otherwise order under subsection (1) by an appropriate amount on account 
of the misconduct. 

Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) 
must not include a component by way of compensation for shock, distress or 
humiliation, or other analogous hurt, caused to the person by the manner of the 
person’s dismissal. 

Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) 
must not exceed the lesser of: 








[2022] FWC 589

30

(a) the amount worked out under subsection (6); and 
(b) half the amount of the high income threshold immediately before the 
dismissal. 

(6) The amount is the total of the following amounts: 
(a) the total amount of remuneration: 

(i) received by the person; or 
(ii) to which the person was entitled; (whichever is higher) for any 
period of employment with the employer during the 26 weeks 
immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so 
employed during any part of that period—the amount of remuneration 
taken to have been received by the employee for the period of leave in 
accordance with the regulations.” 

Applicant’s submissions

[165] The Applicant seeks that the Commission make orders for his reinstatement. It is 
respectfully submitted given the Applicant’s long service to the Respondent, his age, the 
likelihood of obtaining alternative employment, his particular skillset and the size of the 
Respondent’s organisation to absorb the Applicant back into its operations, including in an 
alternative role if required, that reinstatement is a proper and appropriate outcome in this case.

[166] The Applicant seeks further orders for compensation for lost wages and entitlements 
(superannuation and leave) from the date of termination (2 November 2021) until the date of 
reinstatement.

Respondent’s submissions

[167] The Respondent submits that reinstatement is not appropriate on the basis that there is 
a loss of trust and confidence in the Applicant because he failed to work safely and “in doing 
so jeopardised the right of Queensland Rail workers….to be free from risk.” In other words, the 
Respondent cannot take the risk of the Applicant who has shown reckless complacency toward 
safety in the workplace. Nor can it tolerate employees who continue making poor behavioural 
choices without disciplinary action being taken.

[168] Additionally, the Respondent asserts that a decision to reinstate would have a profound 
impact on the remainder of the workforce. Despite the Respondent’s efforts to maintain privacy 
in all disciplinary matters, the depot at which the Applicant works is relatively small, and it 
would set a dangerous precedent with regard to the Respondent’s safety culture and tolerance 
for poor behaviour. The Respondent submits the harmony of the workforce would be affected 
through if the Applicant were to be reinstated. It could very well give rise to a situation where 
employees believe they are immune from dismissal and can disregard safety procedures and 
treat each other discourteously and disrespectfully. 

[169] Finally, the Respondent submits that reinstatement is untenable given the way the 
Applicant has sought to discredit Ms Coran, with no evidence to prove the allegations, relying 
only on unfounded accounts of a small number of disgruntled employees. The Respondent 
maintains that there is a loss of trust and confidence in the Applicant, that the employment 
relationship has deteriorated significantly and reinstatement would be entirely inappropriate. 








[2022] FWC 589

31

Consideration

[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.19 
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, I think 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 skill 
set, this outcome is more just than any reasonable order of compensation could hope to be. 

[174] Accordingly, I have concluded that pursuant to s.391(1) of the Act it is appropriate for 
the Applicant to be reinstated to his former position.  

[175] I am also satisfied, pursuant to s.391(2) of the Act, that it is appropriate for an order in 
respect of continuity of the Applicant’s employment and his period of continuous service be 
made, particularly given the Applicant has been unfairly dismissed after some 33 years of 
service with the Respondent.

[176] I also consider it appropriate, pursuant to s.391(3) of the Act to make an order that the 
Respondent pay the Applicant an amount for the remuneration lost on account of the dismissal. 
I will make a deduction of two months’ pay from the amount awarded for lost remuneration, 
on the basis that it was the Applicant’s admitted safety breach which was the catalyst for his 
termination.  

[177] I order that the Applicant be reinstated to his former position.

[178] I order that the continuity of the Applicant’s employment be recognised. 

19 Ngyuen v Vietnamese Community in Australia [2014] FWCFB 7198.








[2022] FWC 589

32

[179] I order that the Respondent pay to the Applicant the amount of remuneration lost on 
account of the dismissal. 

DEPUTY PRESIDENT LAKE
Printed by authority of the Commonwealth Government Printer
PR739381


WORK COMMISSION THE SENS

Cases cited by this decision: