Ms Lia Silva v QUBE Logistics (Rail) Pty Ltd - [2025] FWC 500

1 

 

Fair Work Act 2009  

s.394—Unfair dismissal 

Lia Silva 

v 

QUBE Logistics (Rail) Pty Ltd 
(U2024/1031) 

COMMISSIONER P RYAN SYDNEY, 19 FEBRUARY 2025 

Application for an unfair dismissal remedy – breach of shunting procedure – uncontrolled 
movement of wagons – serious safety incident – valid reason for dismissal – differential 
treatment – application dismissed 

 

Introduction  

 

[1] Ms Lia Silva (Ms Silva/Applicant) has made an application to the Fair Work 

Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) alleging 

that she was unfairly dismissed from her employment with QUBE Logistics (Rail) Pty Ltd 

(Qube/Respondent).  

 

[2] In the early hours of 26 November 2023, Ms Silva was working on night shift when 20 

wagons rolled away in an uncontrolled movement (rollaway) while the night shift crew was 

performing a shunt movement.   

 

[3] Following an investigation, Qube dismissed the Applicant on 12 January 2024. The 

letter of termination stated: 

 

• You failed to follow the requirements of BlueScope Steel Port Kembla Operations 

Work Instruction WI-611 specifically PCE207 Shunting and Marshalling in that 

you: 

 

o Failed to correctly isolate and secure 20 wagons during shunting operations; 

 

o Failed to drain the air correctly from 20 wagons (Bottled the air); 

 

o Failed to follow QUBE Policies and Procedures in relation to shunting 

operations; Were directly responsible for the rollaway of 20 wagons at Port 

Kembla South Yard. 

 

• A Staff member was injured trying to stop these wagons entering the NSW Ports 

Network.  

[2025] FWC 500 

DECISION 


AUSTRALIA FairWork Commission




 



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[4] Ms Silva seeks to be reinstated to her former position or, in lieu of reinstatement, an 

order that Qube pay her an amount of compensation.1  

 

[5] The matter was heard before me on 14 and 15 May 2024. I granted permission to Qube 

to be represented by a lawyer, as I was satisfied that the matter set out in s.596(2)(a) of the FW 

Act had been met and that it was appropriate to exercise my discretion to grant permission. Ms 

Silva was represented by Ms S Mbele of the Australian Rail, Tram and Bus Industry Union 

(ARTBIU). Qube was represented by Ms C Bembrick of Counsel. 

 

[6] For the reasons that follow, I have concluded that the Applicant was not unfairly 

dismissed.  

 

Evidence and materials before the Commission 

 

[7]  Witness statements were tendered from the following persons, who also gave evidence 

at the hearing: 

   

• Mr Kevin Pryor, a qualified train driver and a union official employed by the 

ARTBIU (Exhibit A1); 

 

• Ms Silva (Exhibit A2 and Exhibit A3); 

 

• Mr James Berriman, employed by Qube as the Operations Manager Interstate 

(Exhibit R1); 

 

• Mr Chris Allan, employed by Qube as a Shift Manager (Exhibit R3); 

 

• Mr John Edwards Jnr, employed by Qube as the Supervisor Southern Region 

(Exhibit R4); 

 

• Mr Ryan De Main, employed by Qube as a Rail Safety Specialist (Exhibit R5); 

 

• Mr Sean O’Connor Byrne, employed by Qube as a Train Driver (Exhibit R6); 

 

• Mr Bryce Gebbie, employed by Qube as a Trainee Driver (Exhibit R7); and 

 

• Mr Omar Sultan, employed by Qube as a Shift Manager (Exhibit R8).  

 

[8] The following document was admitted into evidence: 

 

• Photograph marked JB6 (Exhibit R2).  

 

[9] The following documents were marked for identification: 

 

• Qube’s Objections to Witness Statements (MFI 1); 

 

• Photograph marked JB6 (MFI 2);  








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• The Applicant’s Objections to Exhibit R7 (MFI 3); and 

 

• The Applicant’s Bundle of Tax Invoices and Payslips (MFI 4). 

 

When can the Commission order a remedy for unfair dismissal? 

 

[10] Section 390 of the FW Act provides that the Commission may order a remedy if: 

  

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal 

at the time of being dismissed; and 

 

(b) the Applicant has been unfairly dismissed. 

 

[11] Both limbs must be satisfied. I am therefore required to consider whether the Applicant 

was protected from unfair dismissal at the time of being dismissed. If I am satisfied that the 

Applicant was so protected, I must then consider whether the Applicant has been unfairly 

dismissed. 

 

When is a person protected from unfair dismissal? 

 

[12] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, 

at the time of being dismissed: 

 

(a) the person is an employee who has completed a period of employment with his or 

her employer of at least the minimum employment period; and 

 

(b) one or more of the following apply: 

 

(i) a modern award covers the person; 

(ii) an enterprise agreement applies to the person in relation to the employment; 

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if 

any) worked out in relation to the person in accordance with the regulations, 

is less than the high income threshold. 

 

When has a person been unfairly dismissed? 

 

[13] Section 385 of the FW Act provides that a person has been unfairly dismissed if the 

Commission is satisfied that: 

 

(a) the person has been dismissed; and 

 

(b) the dismissal was harsh, unjust or unreasonable; and 

 

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and 

 

(d) the dismissal was not a case of genuine redundancy. 

 








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Relevant Background 

 

[14] Qube is contracted by BlueScope to haul materials from the Port Kembla Steelworks. 

Each year Qube transports approximately 1.7 million tonnes of steel by train from the Port 

Kembla steelworks to various locations throughout Australia.2  

 

[15] A ‘train’ is a vehicle comprised of one or more locomotives (engines) and attached 

wagons. Wagons that are coupled together without a locomotive are known as a ‘rake’.3  

 

[16] Qube collects loaded wagons from BlueScope and temporarily stores (stables) them in 

rakes on designated roads at BlueScope’s railyard located at Cringila. The wagons are then 

transferred to South Yard where a train crew will ‘build’ the train by coupling the wagons 

together in their designated order before they are transported to their intended destination.4  

 

[17] The trains transporting the steel are up to 1.2 kilometres long and comprise three 

locomotives and up to 73 wagons. An empty wagon weighs approximately 21.5 tonnes. A 

loaded wagon can weigh up to 92 tonnes.5 Trains of empty wagons are returned to the railyard 

and are separated into rakes before being reloaded by BlueScope.6 

 

[18] Qube’s train crew are rostered to work 24 hours per day over three shifts: morning, 

afternoon and night shift. The train crew are comprised of a Train Driver and two or more 

Driver Assistants. Each train crew on shift is supervised by a Shift Manager. It is common for 

the Shift Manager to appoint the most experienced Driver Assistant as the Lead Shunter who 

will be responsible for answering calls from the Shift Manager and ensuring the shunts are 

performed in the correct sequence. The Train Driver drives the locomotives. The Driver 

Assistants work on the ground to perform a range of duties including the coupling and 

uncoupling of wagons, inspecting wagons, and providing direction to the Train Driver. The 

Shift Manager provides direction to the train crew and ensures that the trains are built in the 

correct order.7 

 

[19] The train crew are required to perform their duties in accordance with Qube’s Shunting 

and Marshalling Procedure PCE-207 (Shunting Procedure).8   

 

Shunting Procedure 

 

[20] The Shunting Procedure specifies the procedures and standards for shunting rail vehicles 

and rolling stock. The Shunting Procedure applies to employees and contractors.   

 

[21] The Shunting Procedure relevantly provides:9 

 

1. Purpose 

 

1.1. This procedure reflects the QLRS commitment to making the safety of stabling, 

shunting and marshalling operations the highest priority at all times. 

 

1.2. The purpose of this document is to specify the Qube Logistics Rail Pty Ltd 

(QLRS) procedures and standards for shunting rail vehicles and rolling stock. 

 








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… 

 

1.4  This document outlines the procedures and standards for shunting rail vehicles 

and rolling stock and their application to, train crew locomotive and wagon 

maintainers and outsourced labour hire. 

 

2. Scope 

 

2.1. This procedure is applicable to all QLRS employees and contractors performing 

stabling, shunting and marshalling operations for QLRS. 

 

2.2. This procedure applies to all terminals, sites, yards, sidings and routes 

applicable to QLRS operations. 

 

…  

 

4. Definitions 

 

4.1. Marshalling refers to the positioning of wagons within a consist to comply with 

 

• Network requirements 

• Station, location or customer order 

• Dangerous goods segregation 

 

4.2. Shunting refers to the movement of trains, rakes of vehicles or individual 

vehicles to: 

 

• Arrange or rearrange vehicle order in a consist 

• Attach or detach vehicles to or from a train 

• Change running lines for other than through-movements 

• Move trains or vehicles to, on or from running lines for other than through 

movements 

• Move trains or vehicles within yards for other than through-movements 

 

… 

 

4.4. Competent employee refers to an employee who holds current competencies for 

the task. 

 

5. Responsibilities and Authorities  

 

5.1 Employees conducting stabling, shunting and marshalling movement/s are 

responsible for: 

 

• Ensuring that they are qualified and competent to do so 

 

• Directing and conducting shunting movements safely, in accordance with 

this procedure and the relevant network protocols or site work instructions 








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… 

 

7. Shunting Competency  

 

7.1 Shunting and marshalling operations will only be carried out by trained and 

currently competent employees. 

 

… 

 

7.3 Shunting is a safety critical competency and will be periodically assessed.  

 

 … 

 

12. Three-Step Protection  

 

12.1 Three-step protection is provided for competent employees who are required 

to move between wagons that are attached to a locomotive. The procedure for 

applying three-step protection is as follows: 

 

• The competent employee requests that the train driver apply the three-step-

protection 

 

• Upon receiving a request to apply the three-step-protection the train driver 

will, 

 

1. Fully apply the independent brake 

2. Switch off the generator field circuit breaker 

3. Centre the reverser handle on the locomotive (on QBX locomotives 

the reverser handle must be removed) 

 

• Advise the competent employee that the three-step-protection has been 

applied 

 

12.2. Provided that the three-step-protection has been applied and confirmed the 

competent employee can proceed with the required tasks 

 

12.3. The train driver will not remove the three-step-protection or attempt to move 

the locomotive until he has been advised by the competent employee that all 

employees are clear of the wagons and the railway lines and that it is safe to move 

the locomotive and or the wagons. 

 

… 

 

15. Vehicle and Air Hose Separation  

 

15.1. Wherever locomotives and or wagons are separated there should, wherever 

possible, be a minimum five metre space left between the uncoupled vehicles. 

 








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15.2. Before shunting wagons and separating wagons on a train or if wagons are to 

be detached from a train, the competent employee is to ensure that: 

 

• Communications have been tested and established between the relevant 

parties 

 

• The train driver has acknowledged the ‘stop’ or ‘red light’ command 

before going between the wagons 

 

• The train driver has made a full service application of the train brakes 

(150kpa reduction in brake pipe pressure) 

 

• The train driver has applied the three-step-protection.  

 

15.3. To shunt wagons and separate wagons on a train or detach wagons from a 

train, the competent employee is to: 

 

• Ensure that the air brakes are applied on the wagon/s being detached 

and that they have been secured by applying sufficient handbrakes 

(please refer to the table outlined in section 18.5) 

 

• Close both brake pipe cocks at the intended point of separation 

 

• Instruct the train driver to ease up, if required, then operate either (or 

both) automatic coupler release lever/s, to release the auto coupler at 

the point of separation 

 

• Exhaust the brake pipe air on the wagon/s to remain stationary, by firmly 

holding the air hose down so the air is exhausted away from them, then 

slowly open the brake pipe cock until all the air is exhausted from the 

brake pipe 

 

• Move to and stand in a safe position where they can observe the 

separation of the locomotive/wagons. In some instances, it is possible to 

separate the wagons and allow the brake pipe cocks to pull apart as the 

wagons are separated 

 

• Instruct the locomotive driver to ease off in order to separate the 

locomotive and or wagon/s, and will then stop the movement at the 

distance required. Should the auto couplers not disengage, the 

competent employee will repeat the above steps until the locomotive or 

wagons are uncoupled 

 

• Place the brake pipe and main reservoir pipe air hose/s (if fitted) into 

the appropriate dummy coupler or receptacle. 

 

Train Brakes 

 








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[22] The primary braking system on trains are air brakes. The air brakes work by using 

compressed air from the locomotive which is delivered through air hoses to each wagon. The 

air hoses at the end of the rear wagon are connected to a dummy coupler. When there is no air 

pressure in the system the brakes are applied. To release the brakes, the train driver is required 

to apply air pressure to 500kpa. The train driver controls the speed of the train by reducing the 

pressure. The locomotives are also fitted with separate air brakes known as ‘independent 

brakes.’10  

 

[23] When wagons are separated from a train or locomotive, the air must be released from 

the air brake system to apply the brakes.11 The air can be released at any point along the train 

but will usually be exhausted at the point of separation or at the rear of the train.12 There are 

two ways to release the air: 

 

• Manually by a Driver Assistant disconnecting and holding the air hose and opening 

the brake pipe cock; or 

 

• Mechanically by opening the brake pipe cock and instructing the Train Driver to 

ease off (drive the locomotives/train away from the rake) which pulls the air hose 

out of the rake.13   

 

[24] The parties were in dispute as to the terminology used to refer to exhausting or releasing 

the air. The Applicant submits the correct term is ‘drop the air.’ Qube submits that different 

terms such as ‘drop the air’, ‘drop the tap’, ‘drain the air’, or ‘exhaust the air’ are used and they 

all have the same meaning which is to exhaust or release the air from the braking system. I deal 

with this issue further below.  

 

[25] If a rake has been separated from a train and the air has not been fully exhausted this is 

referred to as ‘bottling the air.’14 Bottling the air is a serious safety issue as pressurised air is 

trapped in the braking system which means, depending upon the air pressure, the brakes are not 

fully applied or at all.15 Furthermore, if a worker proceeds to disconnect a hose unaware that 

air is bottled, the release of that pressurised air can cause serious injury to the worker.16 

 

[26] Wagons are also fitted with manual handbrakes. The handbrakes are applied to separated 

wagons or rakes of wagons in accordance with the Shunting Procedure depending upon where 

the wagons are located and how long they will be parked.17  

 

Ms Silva’s employment 

 

[27] On 1 May 2023, Ms Silva commenced employment with Qube as a Level 2 Driver 

Assistant having regard to her prior experience and qualifications.18 Ms Silva’s contract of 

employment required her to comply with Qube’s lawful directions including policies and 

procedures applicable to her role and duties, such as the Shunting Procedure.19   

 

[28] Although Ms Silva was employed as a Level 2 Driver Assistant, upon commencement 

she was designated as a Third Person. A Third Person is a trainee or driver assistant that is yet 

to be certified as a competent employee by Qube. A Third Person will shadow competent Driver 

Assistants (also known as Second Persons) and receive significant on-the-job training before 

progressing to a Second Person.20 








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[29] On 1 and 2 May 2023, Ms Silva completed a range of induction training and 

assessments, including the completion of Qube’s Shunting and Marshalling Briefing 

Assessment.21 Even though Ms Silva completed that assessment and later signed a Shunting 

Assessment record on 14 November 2023 confirming that she had received and understood the 

Shunting Procedure, Ms Silva claims that she has never been provided with a complete copy of 

that document.22 

 

[30] On 31 October 2023, Ms Silva undertook an assessment to progress to a Second Person. 

The assessment was conducted by Mr Edwards Jnr, who is responsible for conducting 

performance assessments and testing at the Port Kembla steelworks.23  

 

[31] The assessment involved releasing the air mechanically. Mr Edwards Jnr stated that Ms 

Silva was about to uncouple the wagons and had not opened the brake cock on the rake side of 

the point of separation. This prompted Mr Edwards Jnr to intervene and ask Ms Silva what she 

had done wrong. Mr Edwards Jnr stated that Ms Silva responded that she “forgot to drop the 

tap” which would have resulted in Ms Silva bottling the air – meaning the brakes on the rake 

side would not have been applied. This resulted in Ms Silva failing the assessment. Mr Edwards 

Jnr also stated that Ms Silva had forgotten to apply the handbrakes before proceeding to 

uncouple the wagons which also warranted his intervention. 24    

 

[32] Under cross-examination, Ms Silva denied that she failed the assessment because she 

had bottled the air. Ms Silva could not recall what she said during the assessment but agreed 

that she had forgotten to drop the tap on the rake side.25 However, Ms Silva disputed that she 

had bottled the air because the intervention by Mr Edwards Jnr occurred prior to the separation 

of the wagons. Ms Silva stated that she was informed that she had failed the assessment by 

Qube’s Area Manager Port Kembla, Mr Danny Southern, because of the way in which she had 

applied the handbrakes.26 

 

[33] Having regard to the evidence before me, I prefer the evidence of Mr Edwards Jnr to 

that of Ms Silva and find that Ms Silva stated to Mr Edwards Jnr that she “forgot to drop the 

tap” during the assessment conducted on 31 October 2023. The evidence of Mr Edwards Jnr 

was clear, unbroken and not challenged under cross-examination.27 In contrast Ms Silva was 

unable to recall what was said, despite accepting that she had forgotten to drop the tap. 

Furthermore, Ms Silva’s suggestion that she did not bottle the air only because of the 

intervention of Mr Edwards Jnr was, in my view, disingenuous.  

 

[34] On 14 November 2023, Mr Edwards Jnr conducted a further assessment of Ms Silva. 

On this occasion, Ms Silva was assessed as a competent Driver Assistant (Second Person). Mr 

Edwards Jnr noted that Ms Silva had taken all feedback [from the previous assessment] ‘on 

board’.28   

 

26 November 2023 Incident 

 

[35] On 25 November 2023, the night shift train crew comprised Mr O’Connor Byrne (Train 

Driver), Mr Sultan29 (Driver Assistant/Lead Shunter) and Ms Silva (Driver Assistant). The Shift 

Manager was Mr Allan. The night shift commenced at 10:00pm.  

 








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[36] The train crew were issued instructions to collect a down train at Cringila and split it 

into rakes with some rakes being stabled at Cringila, before a rake of 20 wagons was to be 

stabled in South Yard. 

 

[37] There was a dispute between the parties as to whether Mr Allan’s instructions were 

issued to all members of the train crew at a toolbox meeting or only to Mr Sultan who relayed 

the instructions to the other members.  There was also a dispute as to which member of the train 

crew ‘dropped the tap’ from the rear of the rakes during the Cringila shunting movements. For 

reasons that will become apparent, I do not need to determine these matters. 

 

[38] Following the stabling of the rakes at Cringila, the train crew proceeded to stable the 

remaining 20 wagons (17 loaded wagons and 3 empty beam wagons) in South Yard entering 

via a section of track known as the north loop. At approximately 12:37am on 26 November 

2023 and prior to the train entering South Yard, Mr Allan gave the following instructions to the 

train crew: 

 

 “We’re going to run up 11 road, Lia you go to the bottom of the road and call the 

wagons in clear. Omar, go to the top. Lia, you’ll drop the tap and tie down the rake 

from your end. Omar will then cut Sean off and take the locos up to 13 road to be 

fuelled.”30 

 

[39] Mr Allan confirmed with the train crew that they understood his instructions.31 

 

[40] After receiving the instruction from Mr Allan, Ms Silva drove to South Yard and 

positioned herself to call the train in clear on 11 road. Mr Allan drove Mr Sultan to the top of 

South Yard, and Mr O’Connor Byrne drove the train (3 locomotives and 20 wagons) to South 

Yard via north loop.32  

 

Incident at South Yard 

 

[41] At approximately 1:00am, the train entered 11 road. Except for two matters which I deal 

with further below, the communications over the two-way radio and actions that occurred next 

are not in dispute and were as follows:33 

 

• Once the train was in clear, Ms Silva stated over the radio: in clear, red light.  

 

• Mr O’Connor Byrne stated: red light, coming to a stand. Mr O’Connor Byrne 

brought the train to a stand and applied the three-step protection and then stated: 

made safe. 

 

• Mr O’Connor Byrne did not apply a full-service application of the brakes because 

he had applied the independent brakes on the three locomotives, and he considered 

they were sufficient to comfortably hold the weight of the wagons.   

 

• Mr Sultan closed the brake pipe cocks at the point of separation and stated: I’ve 

closed my taps, Lia can you drop the tap. 

 

• Ms Silva states: Ok dropping the tap. 








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• Mr Sultan states: Ok, no worries.  

• Ms Silva dropped the tap at the rear of the train and heard some air come out. Ms 

Silva did not remove the air hose/s from the dummy coupler/s as it was dark, and 

she did not notice or turn her mind to the idea that the dummy couplers were still 

connected. Ms Silva stated that she often forgets or misplaces her torch or headlight 

and that if she could not see what she was doing she would just do her best. Ms Silva 

then states: Yep, my tap is dropped, its down.  

 

• Mr Sultan pulls the pin to uncouple the wagons from the locomotives and states: 

Sean, I’ve made the cut, you can ease off go ahead. Mr O’Connor Byrne then started 

to ease off by driving the locomotives away from the rake.  

 

• Mr Sultan stated that the time between Ms Silva calling the train in clear and his 

instruction to Mr O’Connor Byrne to ease off is a matter of seconds.  

 

• Ms Silva then states: Omar, should I tie up the rake? 

 

• Mr Sultan stated: Yes, tie it up.  

 

• Ms Silva then proceeded to apply the handbrakes. As she was applying the first 

handbrake on the last wagon, Ms Silva noticed the rake was sagging and then it 

started to move. Ms Silva then stated: The rake is moving. Its rolling away, its rolling 

away. 

 

• Mr Sultan stated: Did you drop the tap? 

 

• Ms Silva stated: Yes 

 

• Mr Allan who had remained in his vehicle approximately 30-40 metres from the 

point of separation heard Ms Silva state the rake was rolling away on the radio and 

got out his vehicle and ran towards the front of the rake.  

 

• Mr Sultan started to apply a handbrake on the first wagon, but it did not have any 

effect and asked Mr O’Connor Byrne whether he could “catch” the rake with the 

locomotives. 

 

• As Mr Allan was running towards the rake, he considered the only option was to 

open the tap, so he instructed Mr O’Connor Byrne to “red light” and as he reached 

the front wagon, he grabbed the air tap and dropped it. Mr Allan stated that as he 

dropped the tap, the air started to exhaust and the air hose flew up and struck him in 

the arm. The rake stopped about 1 second later.  

 

• The rake had moved approximately 80 feet and was positioned across the junction 

of 11 road and 10 road. 

 

• Mr Sultan then asked Ms Silva: Are you ok? 

 








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• Ms Silva stated: I’m ok. 

 

• Mr Sultan: Did you drop the tap? 

 

• Ms Silva: Yes. 

 

• Mr Allan: Did you hear any air come out? 

 

• Ms Silva: I heard some air come out, but both hoses were attached to the dummy 

couplers. 

 

• Mr Allan: When you open the tap with the dummy coupler attached no air will come 

out. You are bottling the air and the brakes won’t come on.   

 

• Ms Silva: I didn’t know. I was never taught that in training.  

 

[42] Mr Allan instructed the train crew to pull the wagons back in clear on 11 road. Once in 

clear on 11 road, the tap was dropped from the point of separation by Mr Sultan as he did not 

trust Ms Silva to drop the tap correctly. Mr Sultan then instructed Ms Silva as follows “I’ve 

drained the air on my end, now you can open your tap and I’ll shut mine.” Ms Silva proceeded 

to open the tap and tie up the rake with handbrakes. Mr Allan then instructed the train crew to 

wait.34 

 

[43] The two matters that were disputed during the separation were: 

 

(i) Ms Silva stated that she was instructed to drop the tap after Mr O’Connor Byrne 

was instructed to ease off;35 and 

 

(ii) Mr Sultan stated that he instructed Ms Silva to drop the tap and then apply your 

5 handbrakes as part of one instruction.36  

 

[44] I do not accept Ms Silva’s evidence that she was instructed to drop the tap after Mr 

O’Connor Byrne was instructed to ease off for the following reasons: 

 

(i) The statement made by Ms Silva following the incident states that she was asked 

to drop the tap (and did drop the tap) prior to Mr Sultan uncoupling the wagons 

from the locomotive and instructing Mr O’Connor Byrne to ease off. 37  

 

(ii) The statement made by Ms Silva following the incident is consistent with the 

statements made by Mr Sultan, Mr O’Connor Byrne, and Mr Allan following 

the incident. Furthermore, Ms Silva did not challenge the evidence of Mr Allan, 

Mr Sultan, or Mr O’Connor Byrne on this point;38 

 

(iii) In her evidence before the Commission, Ms Silva suggested that the statement 

she made following the incident was prepared with the help and editing of Mr 

Allan who “steered” her in what to say and that it was not as detailed as it may 

otherwise have been.39 Despite that Ms Silva said that the statement was 








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“accurate” , then denied saying that it was not accurate, before stating that it 

did not contain the correct sequence of events;40 and 

 

(iv) If Ms Silva’s evidence was accepted, she would have been attempting to drop 

the tap on the moving wagons – which was not the case.41  

 

[45] I also do not accept Mr Sultan’s evidence that he instructed Ms Silva to apply the 

handbrakes at the same time as he instructed Ms Silva to drop the tap. None of the train crew 

or Mr Allan state that Mr Sultan gave this instruction to Ms Silva in their statements made 

following the incident.42 Furthermore, Ms Silva, Mr Allan, and Mr O’Connor Byrne were clear 

in their evidence before the Commission that Mr Sultan did not request Ms Silva to apply 

handbrakes as part of his instruction to drop the tap.43 

 

Post-Incident Train Crew Discussion 

 

[46] While the train crew were waiting for further instruction from Mr Allan, Mr Sultan and 

Mr O’Connor Byrne drove to the bottom of the yard where Ms Silva was located. Mr Sultan 

states that he found Ms Silva sitting in a chair and the following exchange took place:44 

 

Ms Silva: I fucked up. 

 

Mr Sultan: Did you drop the tap? 

 

Ms Silva: Yes. 

 

Mr Sultan: What did you do? Did you drop the tap with the hose in the dummy 

coupler? 

 

Ms Silva: Yes, I opened the hose that was tied up? (still connected to the dummy 

coupler). 

 

Mr Sultan: Next time you have to make sure that there’s no dummy coupler – when 

you open the tap with the dummy coupler attached, no air comes out? 

 

Ms Silva: I didn’t know. 

 

[47] Mr O’Connor Byrne stated that a conversation took place, but he could not recall the 

details other than Ms Silva stating that she had “dropped the tap.”45  

 

[48] Ms Silva did not challenge Mr Sultan’s account in her statement in reply or by cross-

examination of Mr Sultan. The only reference in Ms Silva’s evidence to any discussion with 

the train crew following the incident was in her show cause response which was limited to Mr 

Sultan advising her that Mr Allan will be calling her shortly.46  

 

[49] Under cross-examination, Ms Silva initially denied saying that she said she had “fucked 

up”, before stating that “…when I was blamed for it, I went, well fuck – excuse me – ‘I fucked 

up’ if I did say it. I don’t remember saying it. I do remember apologising.”47  

 








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[50] It is clear on the evidence of each person present that there was more to the discussion 

than simply Mr Sultan advising Ms Silva that she will be contacted by Mr Allan. Furthermore, 

Ms Silva did not challenge Mr Sultan’s account and her evidence that she does not remember 

saying those words, or that if she did, that she said it in a particular context casts doubt over her 

version of this conversation.  

 

[51] It follows that in relation to the post-incident train crew discussion, I prefer the evidence 

of Mr Sultan to that of Ms Silva and find that Ms Silva did say the words “I fucked up.”  

 

Completion of Shift and Taking of Statements 

 

[52] At approximately 1:30am, and after instructing the train crew to wait, Mr Allan 

telephoned Mr De Main, Qube’s Rail Safety Specialist, to report the incident and confirm the 

next steps. In this telephone call: 48 

 

• Mr Allan informed Mr De Main that: 

 

o Some wagons had rolled away; 

 

o The rollaway occurred because the brake pipe had not been opened and 

drained and the air had been bottled; 

 

o Mr Allan had stopped the wagons by dropping the tap; and 

 

o There had been no serious injuries or property damage. 

 

• Mr De Main instructed Mr Allan to take statements from the train crew and send all 

of the details in an email to Qube’s Customer Service Centre (CSC).  

 

[53] At approximately 1:41am, Mr Allan telephoned Ms Silva and advised that the train crew 

were cleared to finish their shift. Ms Silva states that she was informed by Mr Allan that drug 

and alcohol testing was not required.49  

 

[54] From approximately 1:45am, Mr Allan and Mr De Main continued to exchange 

information by text message. In these exchanges, Mr De Main advised Mr Allan:50 

 

• That the train crew could complete their shunting movements and then provide 

statements; and 

 

• That drug and alcohol testing of the train crew is required, before changing that 

direction to just testing the person who was supposed to “open the tap” or “drain 

the air.” 

 

[55] Mr De Main stated that at the time of these exchanges he did not know the identity of 

the employee who was alleged to have incorrectly drained the air. He also agreed under cross-

examination that in “hindsight” all members of the train crew were required to have undertaken 

to a drug and alcohol test and that he should have directed Mr Allan to ensure that occurred.51  

 








[2025] FWC 500 

 

15 

[56] Mr Allan then telephoned CSC to make an initial report of the incident and arrange for 

drug and alcohol testing.52 

 

[57] The train crew completed a few more shunting movements before returning to the Rail 

Operating Centre (ROC) at approximately 3:00am. Upon arrival at the ROC, Mr Allan advised 

the train crew that they will be required to provide statements about the incident and that Ms 

Silva was required to undergo a drug and alcohol test.53  

 

[58] Mr Allan took statements from each member of the train crew by typing up what he was 

told, then printing the statement, and having the person sign the statement.54  

 

[59] Mr Sultan stated that each member of the train crew made their statement separately and 

they did not discuss their statements with each other beforehand.55 Mr Sultan said that Mr Allan 

typed up what he said and did not change the words. The statement made by Mr Sultan is as 

follows:56 

 

Omar Sultan Statement - Incident south yard 26.11.2023 

 

After to putting away 7MW7 Sean and myself went via north yard and north loop, Sean 

was advised by Chris Allan to stop short of north loop stop board. Sean had to run shunt 

locos in network loop into bottom of south yard before we could continue running 7MW7 

up the yard into 11 road. 

 

Once Sean completed getting shunt locos in the yard, Sean jumped back on 7MW7 

(QL018). Chris Allan advised Lia to go to bottom of yard and set 11 road and call 

wagons in clear. While myself and Chris went to top of south yard to put ourselves in 

position to cut Sean off light engines. 

 

Chris dropped me off to the top of south yard, I waited for Lia to call the train in clear. 

Once the wagons were in clear and Lia red lighted the movement and Sean confirmed 

it was safe and advised Lia I have closed both my taps and for her to open the tap on 

her end, she acknowledged the call and confirmed to me that completed dropping her 

tap. I then advised Sean that he was right to ease of away. 

 

Shortly after Sean broke away from wagons, the wagon started slowly rolling away, at 

first I thought brakes were going to come on but after a few seconds it clicked to me that 

something has gone wrong. I started winding a handbrake on but then heard Lia on the 

radio saying "its rolling away, its rolling away", I stood clear and as quick reaction 

advised Sean to try to set back and catch onto wagons. 

 

As Sean was setting Chris has appeared out of nowhere and dropped the tap on our end. 

I then advised Sean to red light, its all safe. 

 

After the wagons had come to a stand, I immediately asked Lia what had she done down 

there did you really open the tap? She said Yes, I opened the hose that was tied up. Then 

Chris advised her that when you open the tap with the dummy coupler attached, no air 

comes out. She responded that she didn't know that. 

 








[2025] FWC 500 

 

16 

Any further information required, happy to assist. 

 

Omar Sultan 

(signature) 

 

[60] Mr O’Connor stated that Mr Allan typed up what he said and did not tell him what to 

say. The statement made by Mr O’Connor Byrne is as follows:57 

 

Sean O'Connor Byrne - 26.11.2023 

 

I was bringing the downtrain 7MW7 into 11 road, via north yard, north loop, network 

loop, into 11 road so my engines were up hill, I had 17 loaded wagons and 3mt beams 

wagons on me. Lia was placed was on the bottom of south yard to call me in clear. Once 

was I was called in clear I came to a stand, I applied 3 step protection and advised 

crews of this. Omar radioed Lia and asked her to drop the tap at the rear of the train, 

Lia replied that she had done so. Omar then advised me to ease of away. 

 

I was cut off from wagons and proceeded to take engines to top of 11 road as instructed. 

Then I heard Lia announce over the radio that wagons were moving in her direction. I 

came to a immediate stand. I then heard Omar say to Lia on the radio, "Did you open 

up the tap?'. She said yes. Omar then instructed me to try to come back and reattach to 

the wagons. As I was coming back and safe speed, I was advised by both Omar and 

Chris red light and that the wagons had come to a stand and I immediately came to a 

stand. Once I was instructed it was safe to do so, I caught onto the wagons and pulled 

them back in clear. 

 

Sean O’Connor Byrne 

(signature) 

 

[61] Ms Silva stated that she undertook drug and alcohol testing – both of which returned 

negative results58 – before she met with Mr Allan to provide her statement which is set out as 

follows: 

 

Lia Silva statement - 26.11.2023 

 

I was asked by my manager Chris Allan to call the wagons in clear in 11 road so I went 

to bottom of yard and called Sean in clear over the radio. I was told by Omar to drop 

the tap at my end of the train, which I then proceeded to do. When I dropped the tap, I 

heard some air come out and instructed Omar than the tap had been dropped. I then 

heard Omar cut Sean off on the radio. 

 

I asked Omar if I should tie down the rake and he confirmed that I should, so I started 

applying the first handbrake at my end. While I was winding the handbrake on, I noticed 

rake started moving towards me, I tried to complete applying the handbrake but then I 

noticed it was moving more than I [sic] should so I stood clear and got on the radio and 

advised crew that wagons were still rolling. 

 








[2025] FWC 500 

 

17 

I then heard Omar ask Sean to come back as the wagons had rolled back. When he 

heard this the wagons had stopped. The wagons had rolled about 80ft and were fouling 

10 road and roughly 3 or 4 wagons inside 9 stick. 

 

I then heard Chris ask me if the tap was down at my end, and I responded yes. He then 

asked me if any air had come out and I advised that I heard the air some come out and 

advised that both taps were attached to the dummy couplers. I was then advised then by 

Chris that the air won’t release went dummy coupler is attached. It wasn't to my 

knowledge that this would occur but looking back on it I realise that it makes sense. 

 

Lia Silva 

(signature) 

 

[62] As set out at paragraph [44] above, Ms Silva has suggested that Mr Allan edited the 

statement and “steered” her in what to say and that it was not as detailed as it may otherwise 

have been.59  

 

[63] Mr Allan gave evidence stated that he typed up what Ms Silva told him, and he showed 

her the statement on a computer screen. Mr Allan stated that Ms Silva asked him to make 

changes which he did, before printing the statement for Ms Silva to sign. Mr Allan stated that 

while taking her statement, Ms Silva said, “I feel really silly” and “I should have known 

better.”60  

 

[64] I accept Mr Allan’s evidence and prefer it to Ms Silva’s evidence because under cross-

examination Ms Silva was unable to identify any additional information that she says would 

have been included but for Mr Allan’s purported editing.61 Nor did Ms Silva identify any other 

such information in her show cause response, statement-in-chief or statement-in-reply. Ms Silva 

also did not deny that she had said “I feel really silly” and “I should have known better”, simply 

saying that she could not remember saying it, even though she said that she did “feel silly.”62  

 

[65] Furthermore, Mr Allan was not cross examined on the preparation of Ms Silva’s 

statement, and in response to a question that I asked, denied that he had influenced the content 

of Ms Silva’s statement.  

 

[66] After completing her statement, Ms Silva went home. Mr Allan then typed up his own 

statement, which states:63 

 

Chris Allan statement 26.11.2023 

 

Sean was looping 7MW7 around north yard, north loop, network loop to bring wagons 

into south yard with his engines facing to top of yard with 17 loaded Brisbane Thru 

wagons and 3 MT beams. I instructed Lia to go to bottom of yard to call wagons in 

clear. I then took Omar to top of south yard so he could cut Sean off light engine. 

 

Once we were in position, I stayed in the car and Omar got out to go cut Sean off. Lia 

counted down Sean until the wagons were in clear and red lighted the movement. Sean 

then confirmed he was at a stand and that is was safe to go in. I then heard Omar asked 

Lia to drop the tap at the rear of the train, she confirmed on radio that this had been 








[2025] FWC 500 

 

18 

completed. Omar then asked Sean to ease of away from wagons, which he did and 

started slowly proceeding towards the top of the yard. 

 

I was looking down at my paperwork in the car when I heard Lia saying the wagons 

were rolling and she sounded distressed, I looked up and saw the wagons slowly rolling 

so I immediately got out of the car. As I proceeded towards the wagons they started to 

pick up speed, at which point I realised the wagons were out of control. I briefly 

remember Omar asking Sean to try to come back to catch on but I realised the best 

option was to try to open the tap, so I quickly got to wagons and managed to drop the 

tap as they were rolling, once I did the wagons came to a stand. 

 

As soon as wagons had stopped, I radioed Lia to make sure she was ok. She confirmed 

that she was. I then asked if the wagons had gone past 9 stick resulting in a spad and 

she confirmed that they hadn't but the wagons were now foul and would need to be 

pulled back up to be clear. I instructed Sean to pull wagons back in clear. In my opinion 

the uncontrolled movement was about 4 wagons. 

 

When Lia was asked after the incident if she opened the tap at her end, she responded 

that she had opened the tap that was attached to the wagon. I then advised her that when 

the tap is in the dummy coupler, the air wont bleed and therefore you are essentially 

bottling the air and the brakes wont come on. 

 

[67] At approximately 5:00am, Mr Allan sent the statements by email to the CSC and other 

relevant persons including Mr Berriman and Mr De Main. The covering email correspondence 

stated:64 

 

Hi all, 

 

Please see attached statement regarding incident/near miss at South yard on the 

26.11.2023 where wagons were involved in a uncontrolled movement. 

 

Lia Silva was the D/A at fault in the incident and has had drug and alcohol testing 

completed and returned a negative result. 

 

@CSC Can you please raise a incident in the system for this. 

 

26 November 2023 Incident - Investigation 

 

[68] After the reading the statements of Mr Allan and the train crew, and the initial CSC 

Incident Data Collection, Mr Berriman considered the key issues were that: 

 

• Ms Silva had been asked to drop the tap by Mr Sultan; 

 

• Ms Silva notified Mr Sultan that she had dropped the tap, when in fact the air hose 

was still in the dummy coupler, resulting in no air being released from the air brake 

system; and 

 








[2025] FWC 500 

 

19 

• Mr Sultan acted in reliance on Ms Silva’s confirmation that the air had been dropped 

and instructed Mr O’Connor Byrne to ease off, resulting in the wagons being 

separated from the locomotives without the air brakes having been applied.65 

 

[69] Later that morning Mr Berriman telephoned Mr James Naughton, Qube’s National 

Operations Manager – Rail to discuss the incident. In that telephone discussion Mr Berriman: 

 

• Provided an outline of the incident based on his review of the witness statements;  

 

• Informed Mr Naughton that Ms Silva had bottled the air causing the rollaway and 

that this had also occurred during her performance assessment, at which time Mr 

Edwards Jnr had provided her feedback; and 

 

• Explained to Mr Naughton the gravity of the situation and the potential for a serious 

injury or a fatality arising from incident.66 

 

[70]  At approximately 12:32pm on 26 November 2023, Mr Naughton sent correspondence 

by email to Mr Dan Coulton, Qube’s General Manager - Industrial Relations, and Mr Steve 

Ellem, Qube’s Group Manager - Industrial Relations, which stated:67 

 

Guys 

 

Lia is one of the train crew we commenced using the Performance Management Process 

with. 

 

She has recently been appointed Level 2 on her 2nd attempt. Her first attempt she bottled 

the air on the wagons and John Edwards Jnr failed her and gave her feedback etc. 

 

Last night she has bottled the air on a set of wagons and they have started to roll away, 

quick thinking by the supervisor prevented it being a more serious incident. Her 

response was she wasn’t aware this could cause an issue. We have it in writing her 

giving her feedback etc from her initial testing. 

 

We have pretty much done everything we can with her, in our opinion she isn’t going to 

make it. Can we stand her down and issue a show cause letter? End result to be 

termination. 

 

Thanks 

 

[71] Mr Berriman then telephoned Mr Southern and asked him to suspend Ms Silva with pay 

pending the outcome of the investigation. Then Mr Berriman sent correspondence to Mr 

Naughton, Mr Ellem, and Mr Coulton in response to queries regarding Ms Silva’s length of 

service stating:68 

 

Hi Gents, 

 

She’s just cleared probation I believe she’s in her 7th month now. 

 








[2025] FWC 500 

 

20 

Also going to have the loco downloaded to ensure the drive made a brake application 

too. 

 

Thanks. 

 

[72] Later that evening, Mr Southern informed Ms Silva that she was stood down with pay 

while the incident was being investigated.69   

 

[73] Mr Berriman stated that although he had formed a preliminary view that Ms Silva was 

likely responsible for incident, no determination would be made until the investigation by Mr 

De Main had been completed. Mr Berriman also instructed Mr De Main to investigate whether 

Mr O’Connor Byrne had applied the train brakes (a full-service application) in addition to the 

three-step protection.70 

 

[74] On 27 November 2023, Mr De Main commenced the investigation. Mr De Main stated 

that his role was to review the statements, identify any inconsistencies, make a finding as to the 

cause of the incident, and identify any recommendations to reduce the risk of a similar incident 

occurring again in the future. Mr De Main stated that: 

 

• In reviewing the witness statements, he did not identify any inconsistencies and 

therefore did not consider there to be any need to have any follow-up conversations 

with the persons involved;  

 

• There was no CCTV or other eyewitness evidence regarding the incident that he 

could rely on;  

 

• The only other evidence he could collect was from the locomotives to examine the 

actions of the train driver, Mr O’Connor Byrne; and 

 

• It was a requirement to report the incident to the Office of the National Rail Safety 

Regulator (ONRSR) as it was a Category B Incident – being a runaway/rollaway 

within a yard greater than 10 metres.71  

 

[75] On 28 November 2023, Mr De Main met with Mr Vince Currenti, Qube’s, National 

Wagon Maintenance Manager, to discuss potential engineering modifications to reduce the risk 

of the rollaway in circumstances where the air hose is not removed from the dummy coupler by 

drilling holes into the dummy coupler to allow air to escape.72 

 

[76] On 29 November 2023, Mr De Main met with Mr Southern. During this meeting Mr De 

Main confirmed his view that: 

 

• The incident occurred because Ms Silva had failed to drain the air correctly when 

asked to do so by not removing the air hose from the dummy coupler;  

 

• Engineering modifications could be made to reduce the risk of this incident 

occurring again; and 

 








[2025] FWC 500 

 

21 

• Although the handbrakes had not been applied prior to the wagons being uncoupled, 

Ms Silva was directly responsible for the rollaway.73 

 

[77] On 30 November 2023, Mr Stuart Hudd, Qube’s National Safety Manager – Rail and 

Agri, informed Mr De Main that an ICAM investigation was not required.74  

 

[78] On 1 December 2023, Mr Berriman sent an email to Mr De Main stating:75 

 

Ryan, 

 

Any findings on the Data logger? 

 

Can you confirm Sean followed the 3 Step protection? 

 

Are we just dealing with Lia not draining the air on the train ask instructed to do? 

 

Thanks. 

 

[79] Mr De Main responded confirming that Mr O’Connor Byrne had applied the three-step 

protection. However, Mr De Main’s review of the data logger revealed that Mr O’Connor Byrne 

did not apply a full-service application of the train brakes. Despite this, Mr De Main informed 

Mr Berriman that the focus should be on Ms Silva’s actions during the shunting leading to the 

incident because she had bottled the air.76 

 

[80] Mr Berriman responded expressing concern that the train brakes were not applied and 

questioned whether the three-step protection should include a minimum brake application. Mr 

Berriman’s email correspondence stated:77 

 

Thanks Ryan. 

 

I’ll note I do have concerns that the 3 step should include a minimum brake application. 

I personally have never gotten in between wagons without knowing the brakes were 

applied. Just something for the group to think about. It would have stopped this incident 

but it doesn’t take away from the fact Lia didn’t drain the air as requested. 

 

 James (Mr Naughton) 

 

 Can we move to a show cause letter for Lia? 

 

 [Emphasis added].  

 

[81] Mr De Main’s report into the incident report was finalised on 1 December 2023. The 

incident report was completed progressively over the period from 27 November 2023 until 1 

December 2023 and relevantly states:78 

 

Incident Rail Safety Description 

 








[2025] FWC 500 

 

22 

During shunting in South Yard Port Kembla there was an uncontrolled movement of 

wagons. 

 

Wagons moved approximately 25meters before coming to a stand. When the wagons 

were detached the brake pipe air was not drained due to the brake pipe being on the 

dummy couple. When the locos detached the brakes were off and the movement 

occurred. 

 

Supervisor noticed the movement was able to drain the brake air to stop the movement. 

Wagons rolled from 11rd and stopped fouling 10rd. 

 

…. 

 

Investigations 

 

Sequence of events: 

 

During shunting in South Yard Port Kembla there was an uncontrolled movement of 20 

wagons. Wagons consisted of 17 loaded and 3 empty steel wagons. 

 

The Wagons moved approximately 25 meters before coming to a stand. 

 

When the wagons were detached the brake pipe air was not drained at the point where 

the wagons were split. The crew member who split the wagons instructed the person on 

the other end of the detached wagons to open the brake pipe and drain the air. The tap 

was opened but due to the brake pipe being connected to the dummy coupler the air was 

not exhausted and the brakes stayed off. 

 

When the locos detached the brakes were off on the wagons and the movement occurred. 

 

The supervisor noticed the movement and was able to drain the brake air to stop the 

movement. Whilst opening the air brake pipe tap the hose swung up and struck him in 

the forearm. No injury occurred. 

 

Wagons rolled from 11rd and stopped fouling 10rd. 

 

Driver during the shunt movements followed procedure and applied 3 step protection 

when required. 

 

It is standard process to conduct the shunt like this due to the additional wagons to be 

placed on the end of the wagons where the pipe should have been opened and drained. 

 

Findings: 

 

The driver did not make a full-service brake application before placing 3-step 

protection. 

 








[2025] FWC 500 

 

23 

The shunter who was at the locomotive end did not ensure the air brakes were applied 

before disconnecting the wagons from the locos. 

 

The crew member at the rear did not follow instructions from the other shunter and 

ensure the brake pipe air is drained from the shunted wagons which left the wagons 

in an unsafe condition by bottling the air causing the roll away. 

 

Key Learnings: 

 

Crew member performance managed in shunting. 

 

Explore the possibility of drilling holes in the dummy coupler to avoid this sort of 

incident in the future. 

 

Review possibility of adding brake application to 3-Step protection procedure. 

 

Management Methods: 

 

Supervisor was able to make it to the wagons in time and remove the brake pipe from 

the dummy coupler draining the Brake pipe air which applied the brakes. 

 

[Emphasis added] 

 

[82] Although Mr De Main does not have authority to determine or implement disciplinary 

action, on 13 December 2023, Mr De Main added the following action to the incident report:79 

 

Action: 

 

Performance manage Lia and retrain prior to returning to work. 

 

Comments: 

 

Part of wider performance management of Lia.  

 

Show Cause and Termination  

[83] On 21 December 2023, Mr Berriman decided to issue a show cause letter to Ms Silva 

after considering the following matters:80 

 

• The statements provided by the train crew involved were aligned on the fact that Ms 

Silva had bottled the air by failing to remove the air hose from the dummy coupler; 

 

• That although the rollaway of the wagons could have been prevented if the train 

brakes had been applied (and therefore Ms Silva was not solely responsible for the 

rollaway) she: 

 

o Was directly responsible because she had failed to drain the air correctly;  

 








[2025] FWC 500 

 

24 

o Failed to save the wagons by applying the brakes when directed to do so by 

Mr Sultan; and 

 

o Nonetheless told Mr Sultan that she had applied the air brakes. 

 

• The INX report/information which confirmed that the rollaway was caused by Ms 

Silva bottling the air; 

 

• That despite the INX report stating the level of risk was low, if Mr Allen had not 

been able to stop the wagons, the wagons would have picked up speed and continued 

travelling downhill towards a catch point to prevent them entering a live track. The 

catch point would have caused the wagons to the derail causing significant property 

damage; 

 

• The risk of serious injury or death to workers that could have been struck by the 

wagons as they rolled or were derailed; 

 

• Ms Silva bottling the air during her initial assessment conducted on 31 October after 

she been working as Third Person for over four months and had previously worked 

in the industry; 

 

• That Ms Silva stated on the night of the incident that it was not within her knowledge 

that failing to remove the air hose from the dummy coupler meant that the air would 

not release; and 

 

• That Mr Allen suffered bruising to his arm when stopping the rollaway.  

 

[84] The show cause letter relevantly stated:81 

 

Dear Lia,  

 

Opportunity to show cause why employment should not be terminated 

 

Qube has now concluded its investigation into the allegations of misconduct made 

against you. The purpose of this letter is to confirm the outcome of that investigation 

and provide you with the opportunity to respond to it before any decisions are made 

regarding your employment. 

 

Investigation 

 

As you know, Qube had serious concerns regarding your alleged conduct, being: 

 

• You failed to follow the requirements of BlueScope Steel Port Kembla 

Operations Work Instruction WI-611 specifically PCE 207 Shunting and 

Marshalling in that you: 

o Failed to correctly isolate and secure 20 wagons during shunting 

operations 

o Failed to drain the air correctly from 20 wagons (Bottled the Air) 








[2025] FWC 500 

 

25 

o Failed to follow QUBE policies and procedures in relation to shunting 

operations, were directly responsible for the rollaway of 20 wagons at 

Port Kembla South Yard 

 

• A Staff member was injured trying to stop these wagons entering the NSW Ports 

network 

 

As part of Qube’s formal investigation, we have now considered all information 

currently in our possession, including statements from other witnesses etc. we also 

consider your statement which we received on 26 November 2023. 

 

Outcome of investigation 

 

As a result of the investigation and the information currently in Qube’s position, Qube 

has formed the allegations against you have been substantiated. Qube spilling review 

is that your conduct constitutes misconduct inconsistent with Qube’s values integrity, 

reliability, inclusion and zero harm and is such that Qube considers that it no longer 

has the trust and confidence necessary for the continuation of your employment and that 

your employment is no longer tenable. 

 

Opportunity to respond 

 

Before any final decisions are made, Qube wishes to for you with a further opportunity 

to respond to our preliminary view that your employment should not be terminated 

because of the substantiation of the allegations. 

 

In this response you may wish to provide any further information or any mitigating 

factors which you consider should preliminary view. Qube will consider any response 

you provide before any decisions are made regarding your ongoing employment. 

 

[85] On 5 January 2024, Ms Silva provided her response to the show cause letter. Ms Silva’s 

response is set out in two parts:  

 

(i) Events of Sunday 26 November 2023 at Qube Port Kembla South Yard; and 

 

(ii) Show Cause Reply.  

 

[86] Ms Silva’s Show Cause Reply states:82 

 

SHOW CAUSE REPLY: 

 

• On the night of the incident, not once was I told that I would be dropping the 

air in either the phone call from the Shift Supervisor @ 0037 nor over the 

2way. 

 

• If I had, I would have told them then and not after, that that was not 

something I was trained to do nor comfortable with doing. In my initial 

training, we are explicitly told that whoever cuts the train, drops the air. 








[2025] FWC 500 

 

26 

Even when we drop the tap at Cringila at the back of the rake, to make it 

easier for WATCO to pick up the empty wagons from the back door end 

(north end), the person who makes the initial cut (south end), drops the air 

first then tells whomever is at the back, to drop the tap and tie up the last 

few wagons. During my training and talking to others, never is the air 

dropped at the back of the train AFTER the rake is cut off from locos at the 

front, because, if the air is bottled from there, this could lead to these such 

incidents. 

 

• I did NOT bottle the air as I was not the one who made the cut. I do not 

believe the shift supervisor made it clear to myself or the driver that for some 

reason the air would be dropped from the back as I believe the driver would 

have made a full application to ensure the rake did not move while the air 

was bottled at the point of where the cut was being made. However, you 

would have to confirm with the driver what he was told as I only know what 

I was and WASN’T told. 

 

• If I had done what the Shift Supervisor had expected and only made clear 

AFTER the runaway, I would have been at the back of the rake of 20 wagons, 

inside the 4-foot because the train came over with both taps on the last 

wagon (an 80-foot beam wagon), were attached to their individual dummy 

couplers. I am not only glad but absolutely sure that I did the correct thing 

by not doing what the shift supervisor apparently expected. Because not only 

would I have been behind a 20-wagon long rake with the air bottled at the 

front where the cut had already been made BEFORE I was told to drop the 

tap, ready to drop the air, I would have been well inside the 4-foot not only 

trying to dislodge the dummy coupler from the hose of an 80-foot beam 

wagon but then trying to hold the hose while the air was exhausted so it 

didn’t fly up and hit me in the torso or face, when the 20-wagon rake started 

to move back on me. Which again, not only could this have led to myself 

being injured either mildly or severely but potentially could have killed me. 

Even after the incident, the Driver, Sean told me that when I didn’t reply 

immediately over the 2way radio, he thought the worst, that something had 

indeed happened to me. 

 

To answer the allegations in the show cause letter, I do not believe that I failed to follow 

the requirements of BlueScope Steel Port Kembla Operations Work Instruction WI-611, 

specifically PCE 207 Shunting and Marshalling.  

 

PCE 207 clearly states in section 15.3 (attached at the end of the statement for clarity), 

that the competent employee directing the detach movement is responsible for 

exhausting the brake pipe air on the wagons to remain stationary PRIOR to instructing 

the Driver to ease off. I was not the competent employee at the locomotive end of the 

consist. I can only assume that that competent employee failed to complete this step (or 

was told I would for some reason by the shift supervisor when I wasn’t), causing the air 

to be bottled on the remaining wagons. I was only responsible for opening the brake 

pipe tap at the rear, for any further shunt movements at the bottom of the yard and 

applying sufficient parking brakes to the rake. 








[2025] FWC 500 

 

27 

 

And please note that after the wagons were hauled back to their original location, the 

brake pipe was drained from the locomotive end correctly when it was again detached. 

If this had been done the first time, this incident would not have occurred. 

 

I was also completely unaware of any injuries sustained on the night. I continued to 

work with all 3 of the involved employees for the rest of my shift, no injuries were 

reported at the time. I have since been made aware that the shift supervisor on duty is 

the staff member who has claimed an injury. I can only say that no appearance or 

mention of any injury to him was made on the night. In fact, this employee continued to 

work the whole shift, then conducted the statements of all involved, even though he was 

directly involved in the incident. It is my opinion that I was the employee placed at risk, 

when I was (allegedly) asked to step directly in the path of an unsecured rake of wagons, 

due to the failure to drain the brake pipe at the point of separation.  

 

Lastly,  

 

• I understand that someone needs to be held responsible for the incident, but am 

at a loss as to why not only am I being blamed after the initial investigation but 

from the get-go, immediately after the incident and shift. This is proven not only 

by the fact that I was the only one stood down the next day, but, that I was the 

ONLY one of 4 people totally involved in not only being on shift that night but 

totally involved in the actual incident being drug tested and this was AFTER, I 

and the others were all cleared to finish our shift that night. Usually in the event 

of an incident, all employees on shift are drug tested even if they were not near 

the incident yet ALL 4 of us on shift that night were involved in this incident yet 

again, I was the only one tested and then stood down?  

 

• To say that I not only find being held responsible for the incident before the 

investigation was even commenced but to be possibly terminated at the 

completion of the investigation, has totally confused and devastated me. I hope 

that you can see from the above, that not only was I not responsible but that I 

actually saved myself from being injured or even possibly killed which would 

have been a major incident for QUBE, when all I did, was exactly what I was 

told and doing what I wasn’t even told to do, would have resulted in a far worse 

outcome/incident. 

 

• Also, why a person involved in the incident and who claims to have been injured 

in said incident, was left to be totally in charge of making contact with everyone 

not only with staff off site that night, but with being in charge of taking our 

statements and basically steering myself in what to say in the statement as this 

appears only to serve them and keep them from taking any responsibility from 

the initial incident to injuring themselves? Maybe a review of this procedure 

needs to be investigated also.  

 

I would just like to end with, that I categorically deny I was ever told that I would be 

dropping the air from the BACK of the train either via phone or over the 2way.  

 








[2025] FWC 500 

 

28 

And even if I had, the fact the air was bottled where the cut was made BEFORE I was 

told to drop the tap (not the air), could have resulted in either injury or worse to myself 

if I had been directly at the back of the rake trying to disengage one of the hoses from 

the dummy coupler, then holding onto the hose as the air was exhausted, through 

someone else’s direction and do not understand why I am the one (and only one) being 

stood down, investigated and possibly terminated. 

 

I hope that management reviews this statement with an open mind and without undue 

prejudice or bias nor preferences and understands that no matter what my actions were 

that night, I saved myself and QUBE from a more dreadful outcome if I had done what 

someone else is saying they told me to do. 

 

Lia Silva. 

 

[87] Mr Berriman stated that he carefully considered Ms Silva’s Show Cause Reply but was 

concerned with the following matters:83 

 

• That Ms Silva did not take any responsibility for the incident and continued to state 

that she was not at fault. Mr Berriman was concerned that Ms Silva did not 

understand the importance of following directions from other Driver Assistants and 

the seriousness of bottling the air;  

 

• That Ms Silva stated she had been instructed to drop the tap after Mr O’Connor 

Byrne was instructed to ease off, which contradicted the statements made by Ms 

Silva, Mr Allan, Mr Sultan, and Mr O’Connor Byrne, following the incident; 

 

• That Ms Silva stated that she was not told that she was dropping the air and that it 

was not something that she was trained to do or comfortable with doing. Mr 

Berriman stated that this surprised him as it was a routine task and Ms Silva had  

undertaken assessments on 31 October 2023 and 14 November 2023; and 

 

• That Ms Silva stated that what she had been asked to do put her in danger, when in 

fact she had put herself and her colleagues in danger by bottling the air.  

 

[88] Mr Berriman stated that he also took into consideration: 

 

• Ms Silva’s length of service with Qube; 

 

• Ms Silva’s age and length of service in the rail industry; and 

 

• That he remained concerned that if Ms Silva was allowed to return to work, there 

was a risk of a similar incident occurring in the future and that further training or 

warning would not be sufficient to resolve that concern.84   

 

[89] Mr Berriman stated that he discussed his concerns with Mr Naughton and Mr Rob Cole 

(general manager of BlueScope), who both agreed that termination of employment was the 

appropriate outcome.85  

 








[2025] FWC 500 

 

29 

[90] On 12 January 2024, Mr Naughton sent correspondence to Ms Silva informing her that 

her employment was terminated. The letter of termination relevantly stated:86 

 

Further to our recent correspondence, the purpose of this letter is to confirm that Qube 

has decided to terminate your employment for misconduct effective from today, 12 

January 2024.  

 

As you know, Qube wrote to you on 21 December 2023 to ask you to respond to the 

below allegation – 

 

• You failed to follow the requirements of BlueScope Steel Port Kembla 

Operations Work Instruction WI-611 specifically PCE 207 Shunting and 

Marshalling in that you;  

 

o Failed to correctly isolate and secure 20 wagons during shunting 

operations; 

 

o Failed to drain the air correctly from 20 wagons (Bottled the Air);  

 

o Failed to follow QUBE Polices and Procedures in relation to shunting 

operations Were directly responsible for the rollaway of 20 wagons at 

Port Kembla South Yard. 

 

• A Staff member was injured trying to stop these wagons entering the NSW Ports 

network. 

 

You provided a response to these allegations in writing on 05 January 2024.  

 

We have now had the opportunity to consider your responses and unfortunately, Qube’s 

view is that your employment is no longer tenable with us and that your conduct is 

inconsistent with Qube’s values of Integrity, Reliability, Inclusion and Zero Harm. 

While we appreciate your personal and financial circumstances as well as your tenure 

with the business, Qube considers the employment relationship to be beyond repair due 

to the nature of your conduct and the associated loss of trust and confidence that Qube 

will have in you going forward cannot be restored. Accordingly, we have made the 

difficult decision to terminate your employment.  

 

We confirm that your employment will end with effect from today, 12 January 2024. 

Under your industrial instrument, you are entitled to 1 weeks’ notice of termination 

which will paid to you by Qube in lieu of you serving out your notice period.  

 

[91] On 1 February 2024, Ms Silva made the Application. 

 

Drop the tap / Drop the air – and from where? 

 

[92] There was a significant dispute between the parties as to the terminology used in relation 

to releasing the air from the braking system, where the air can be released from, and Qube’s 

practice in releasing the air from the rear of a train or rake.  








[2025] FWC 500 

 

30 

 

Evidence of Ms Silva 

 

[93] Ms Silva stated that during her employment with Qube, the terms ‘drop the tap’ and 

‘drop the air’ were used as follows: 

 

‘Drop the tap’ is a term used to advise Driver Assistants to open the brake pipe tap if 

the tap is required to be in the open/dropped position after the air is dropped/exhausted; 

 

‘Drop the air’ is a term used to advise Driver Assistants to exhaust compressed air from 

the brake pipe by dropping the tap and disconnecting the air hose.87  

 

[94] Ms Silva stated that the exhausting of air from the brake pipe always occurred at the 

point of separation and that the tap is only dropped at the rear of a rake when locomotives will 

reconnect from that end. Ms Silva stated that this occurs mostly in Cringila Yard and 

occasionally within South Yard, and only after the air has been exhausted at the point of 

separation.88 

 

[95] Although Ms Silva gave evidence that there was a critical difference in the meaning of 

the terminology, Ms Silva agreed that on the evening of 26 November 2023 she was required 

to remove the air hoses from the dummy coupler and accepted responsibility for not ensuring 

this was done, stating that on the evening of the incident it was dark and that she did not notice 

or turn her mind to the idea that the dummy couplers were still connected.89  

 

[96] Furthermore, in her evidence before the Commission, Ms Silva: 

 

• Stated that the terminology used at Qube was universal and that it was terminology 

that she was aware of prior to commencing employment with Qube, 

notwithstanding that in her witness statement-in-reply she stated that she had a 

different understanding of the terminology to Qube’s witnesses;90 

 

• Agreed that she was trained on manually exhausting the air, that it could occur from 

a point other than the point of separation, and that she had manually exhausted the 

air between wagons during her employment with Qube;91 

 

• Accepted that as part of her training she had observed the air being exhausted from 

the rear of a train or rake;92 

 

• Stated that she was not comfortable exhausting the air from the rear of a train or 

rake and that it was safer to perform a mechanical separation;93 

 

• Agreed that when exhausting the air there is a noticeable whoosh of air;94 

 

• Agreed that it was important to comply with a direction to exhaust the air and that 

if the air was not exhausted from the brake pipe, a rollaway could occur;95  

 








[2025] FWC 500 

 

31 

• Agreed that her witness statement, which stated the exhausting of the air always 

occurs from the point of separation and that the tap is only dropped at the rear after 

that occurs, was not accurate;96 and 

 

• Disagreed that the action of dropping the tap was the same as dropping the air in 

that dropping the tap did not require the air hose to be disconnected.97  

 

Evidence of Kevin Pryor 

 

[97] Despite inconsistencies between his witness statement and evidence he gave before the 

Commission, Mr Pryor stated that ‘drop the tap’ means opening the tap and not exhausting the 

air from the brakes, whereas ‘drop the air’ means to exhaust the air from the brakes.98  

 

[98] Mr Pryor stated that exhausting the air should always occur at the point of separation, 

but accepted that if done properly, the air can be exhausted from the rear of the train.99  

 

[99] Mr Pryor agreed that if a Driver Assistant was instructed to ‘drop the air’ or ‘drop the 

tap’ from the rear of the train, it involves the same process: opening the tap (brake pipe cock) 

and removing the air hose from the dummy coupler.100 

 

Evidence of Qube’s Witnesses 

 

[100] Each of Qube’s witnesses stated that irrespective of the term used, they each have the 

same meaning.  

 

[101] Mr Berriman stated that the terms ‘drop the tap’ and ‘I’ve dropped the tap’ are industry 

specific terms which are used by the train crew as follows: 

 

‘Drop the tap’: exhaust the air from the braking system by holding the air hose carefully 

away from them and opening the brake pipe clock until all air is exhausted; 

 

‘I’ve dropped the tap’: the air has been exhausted from the braking system.101 

 

[102] Mr Berriman also stated that ‘dropping the tap, ‘dropping the air’ or ‘drain the air’ each 

have the same meaning which is to open a valve which releases air to the atmosphere.102 

 

[103] Mr Allan stated that ‘drop the air’ and ‘drop the tap’ both have the same meaning which 

is to exhaust the air and apply the brakes and can occur from the rear of the train.103   

 

[104] Mr Sultan stated that ‘drop the tap’, ‘drop the air’, ‘drain the air’ and ‘exhaust the air’ 

each have the same meaning which is to exhaust the air and apply the brakes.104 

 

[105] Mr O’Connor Byrne stated that ‘drop the tap’ means to expel the air and apply the brakes 

and it is safe to do so at the rear of the train or the point of separation.105 

 

[106] Mr Edwards Jnr stated that ‘drop the tap’, ‘open the tap’ and ‘drop the air’ all have the 

same meaning – to exhaust the air from the air brakes.106 Mr Edwards Jnr also stated that the 

air can be exhausted at any point along the train.107  








[2025] FWC 500 

 

32 

 

[107] Mr Gebbie stated that ‘drop the tap’, ‘drop the air’ and ‘drain the air’ all refer to draining 

(or exhausting) the air from the air brakes. Mr Gebbie stated that if the air was exhausted from 

the locomotive end of the train and the train crew required the tap to be opened at the other end 

of the wagons, the instruction ‘drop the tap’ would not be given. Rather, the driver assistant at 

the point of separation would say “drained the air on my end, open your tap”, or “drained the 

air, it’s safe for you to open the tap”. Mr Gebbie stated that this notifies the other train crew 

that they do not need to firmly hold the air hose or protect themselves against the exhaust of the 

pressurised air.108  

 

[108] Mr De Main stated the instruction ‘drop the tap’ has a clear and unambiguous meaning 

in the rail industry and refers to exhausting the brake air.109 

 

Shunting Procedure – Full Service Application of Brakes and Handbrakes 

 

[109] Although Ms Silva accepts that she should have opened the tap and removed the air 

hose from the dummy coupler, she otherwise denies that she was responsible for the incident 

on 26 November 2023.  

 

[110] Ms Silva has referred to the Shunting Procedure and Mr Berriman’s evidence that the 

handbrakes were not applied prior to separation. Ms Silva also referred to the findings of Mr 

De Main that Mr O’Connor Byrne did not make a full service application of the brakes, and 

that Mr Sultan did not ensure the air brakes were applied before uncoupling the wagons from 

the locomotives. Ms Silva submits that she was subjected to differential treatment.  

 

Full Service Application of Brakes 

 

[111] As set out earlier, clause 15.2 of the Shunting Procedure requires a full service 

application of the train brakes to be applied when separating locomotives and/or wagons. A full 

service application reduces the air pressure and applies the brakes to the locomotives and the 

connected wagons.110 

 

[112] There is no dispute that Mr O’Connor Byrne did not apply the full service application 

on 26 November 2023. Mr O’Connor Byrne stated that the independent brakes on the three 

locomotives were sufficient to hold the weight of the wagons but accepted if the full service 

application and the handbrakes were applied prior to uncoupling, the rollaway may not have 

occurred. However, Mr O’Connor Byrne stated that as Ms Silva bottled the air, there was still 

the potential for the wagons to rollaway at some point.111 

 

[113] Mr De Main stated that the full service application is the first step in preventing an 

uncontrolled movement or rollaway and that the failure to make a full service application 

contributed to the incident on 26 November 2023.112 

 

[114] Mr Berriman agreed that Mr O’Connor Byrne did not adhere to the policy. Despite that, 

he did not discipline Mr O’Connor Byrne.113 

 

Handbrakes 

 








[2025] FWC 500 

 

33 

[115] Clause 15.3 of the Shunting Procedure provides that the competent employee is to 

ensure that the air brakes are applied on the wagons being detached and that they have been 

secured by applying sufficient handbrakes. 

 

[116] In his evidence-in-chief, Mr Berriman stated that because of this incident, he is now 

aware that some employees deviate from the Shunting Procedure by applying handbrakes after 

the wagons have been separated, but within the holding time of the air brakes.114 Mr Berriman 

also stated that although this is not Qube’s procedure and is not encouraged, if the air has been 

exhausted from the wagons to be separated, it would be almost impossible for there to be a 

rollaway. 115   

 

[117] Under cross-examination, Mr Berriman: 

 

• Agreed that applying handbrakes after separation was a breach of the Shunting 

Procedure;116 

 

• Stated that the purpose of applying the handbrakes under clause 15.3 of the Shunting 

Procedure was a second mechanism to stop wagons from rolling;117 

 

• Agreed that if handbrakes had been applied prior to the exhaustion of air, and the 

exhaustion of air was not conducted properly, then the rollaway would not have 

occurred, but the air would have remained bottled creating a dangerous 

environment;118 and 

 

• Disagreed that Mr Sultan, who was at the point of separation, was responsible for 

ensuring the handbrakes were applied.119 

 

[118] Mr De Main stated: 

 

• That the handbrakes should be applied before separation;120 and 

 

• That if the handbrakes had been applied prior to separation, “we probably would not 

be here now” but observed that Ms Silva had bottled the air.121 

 

[119] Mr Edwards Jnr stated: 

 

• That the purpose of applying the handbrakes prior to exhausting the air or 

uncoupling the wagons is an additional safety measure to prevent uncontrolled 

movements;122 and 

 

• That the handbrakes must be applied before separation.123 

  

[120] Mr Allan stated that the handbrakes are to be applied before the tap is dropped. 

However, as set out above, on 26 November 2023, Mr Allan instructed Ms Silva to “drop the 

tap and tie down the rake from your end.124 In response to a question from me, Mr Allan stated 

that he was not instructing Ms Silva to undertake the tasks in that order but was merely 

informing Ms Silva of the tasks she was required to undertake.125 

 








[2025] FWC 500 

 

34 

[121]  In his witness statement-in-chief, Mr Sultan describes the process for separating 

locomotives and wagons at Port Kembla steelworks and states that the handbrakes are applied 

after the tap is dropped and accepted that both he and Ms Silva were equally responsible for 

securing the wagons on 26 November 2023.126 Under cross-examination, Mr Sultan: 

 

• Agreed that a lead shunter is required to comply with the Shunting Procedure and 

ensure that sufficient handbrakes have been applied;127 

 

• Stated that the handbrakes can be applied after the air is exhausted;128 

 

• Acknowledged that the handbrakes should be applied prior to the dropping of the 

tap, but stated it is done both ways at Port Kembla steelworks;129 

 

• Agreed that a driver assistant has some discretion in relation to the order in which 

they undertake the steps set out in clause 15.3 of the Shunting Procedure;130  

 

• Agreed that if the full service application and the handbrakes are applied prior to the 

dropping of the tap, the wagons should not roll away;131 and 

 

• Disagreed that he was responsible for applying the handbrakes or ensuring that the 

handbrakes were applied, stating that Ms Silva was told to apply the handbrakes.132  

 

Ensuring the air brakes are applied 

 

[122] Clause 15.3 of the Shunting Procedure provides that the competent employee is to 

ensure that the air brakes are applied on the wagons being detached and that they have been 

secured by applying sufficient handbrakes. 

 

[123] There is no dispute that a full service application of the brakes was not applied by Mr 

O’Connor Byrne. The investigation found that Mr Sultan did not ensure that the air brakes were 

applied to the wagons before uncoupling the wagons from the locomotives. 

 

[124] Although Mr Sultan accepted that both he and Ms Silva were equally responsible for 

securing the wagons,133 both he and Mr Berriman disagreed that he was, in any way, responsible 

for ensuring the air brakes were applied on 26 November 2023. Mr Sultan stated that it was Ms 

Silva’s responsibility, as she called the train in clear and red lighted the train.134  

 

Observations on the Evidence  

 

[125] I have observed and listened to each witness give evidence in these proceedings and 

have carefully considered that evidence. As set out above, the parties are in dispute on a range 

of factual matters which I must determine. In determining these matters, I have generally 

preferred the evidence of the Respondent’s witnesses to Ms Silva. Ms Silva’s evidence was at 

times inconsistent, evasive or unconvincing.  

 

[126] Having said that, the following aspects of evidence given by the Respondent’s witnesses 

was self-serving, unconvincing or unsatisfactory:  

 








[2025] FWC 500 

 

35 

• Mr Allan’s explanation for his instruction to Ms Silva to drop the tap and (then) tie 

down the rake. I found this explanation unconvincing, and it is more likely that Mr 

Allan was issuing the instructions in the usual order those tasks are performed at 

Port Kembla;  

 

• Mr Berriman’s evidence that applying handbrakes after the tap is dropped is a breach 

of the Shunting Procedure, which is not encouraged, despite giving evidence that 

Qube needs to be confident that its employee’s will comply with safety procedures; 

 

• Mr Sultan’s evidence regarding his understanding of the Shunting Procedure in the 

context of his responsibility as an experienced driver assistant and shift manager; 

and  

 

• Mr Gebbie’s email dated 4 March 2024 setting out his concerns regarding Ms 

Silva’s performance.135 Despite holding serious concerns regarding Ms Silva’s 

performance, Mr Gebbie did not particularise when those incidents were alleged to 

have occurred and was unable to recall who he contemporaneously reported those 

matters to, and it appears that there were never investigated. However, it is important 

to note that unless all of those incidents occurred between 14 November 2023 and 

26 November 2023, Ms Silva would have been shadowing other driver assistants, 

and Mr Gebbie’s concerns do not specify whether any other driver assistants were 

involved and how Ms Silva was responsible as a Third Person. Accordingly, I 

consider this evidence to be unsatisfactory and have placed no weight on it.  

 

[127] I found Mr O’Connor Byrne, Mr Edwards Jnr and Mr De Main to be the most 

convincing and forthright witnesses. Mr O’Connor Byrne and Mr De Main readily made 

concessions against their interests on matters in relation to the full service application of the 

brakes and the drug and alcohol testing of the train crew. Mr Edwards Jnr gave evidence that 

was clear, unbroken and credible on all points.  

 

Findings  

 

[128] In addition to the factual matters and findings set out above, I make the following factual 

findings: 

 

(i) Ms Silva was provided with a copy of the Shunting Procedure during her employment. 

Within the first week of her employment, Ms Silva completed Qube’s Shunting and 

Marshalling Briefing Assessment and was assessed as competent. I do not see how Ms 

Silva could have completed that assessment without having been provided with a copy, 

or access to a copy, of the Shunting Procedure. Ms Silva also signed her Shunting 

Assessment on 14 November 2023, acknowledging that she had been provided with a 

copy of, and understood, the Shunting Procedure. Her evidence that she signed that 

document in the knowledge that she had not been provided with a copy is unconvincing; 

 

(ii) The Shunting Procedure does not prevent more than one employee being involved and 

undertaking different tasks in a shunt movement, including vehicle and hose separation, 

provided each employee is a competent employee; 

 








[2025] FWC 500 

 

36 

(iii) The Shunting Procedure clearly contemplates the manual release of air from the train 

brake system and sets out the steps for performing that task;136 

 

(iv) Ms Silva was trained in, and knew how to perform both a mechanical and manual release 

of air from the train brake system, and had: 

 

i. Performed manual releasing of the air from points other than between the 

locomotive and the first wagon during her employment; and 

 

ii. Observed the manual releasing of the air from the rear of a train/rake;  

 

(v) The term ‘drop the tap’ as used in Cringila Yard and South Yard is synonymous with 

‘drop the air’, ‘drain the air’ and ‘exhaust the air’ and means to exhaust the air from the 

train brake system.   

 

(vi) The actions involved when following an instruction to ‘drop the tap’ or ‘drop the air’ 

are the same, can be actioned at any point along the train, and when conducted at the 

rear of the train, require removing the hose from the dummy coupler; 

 

(vii) Ms Silva was familiar with the term ‘drop the tap’ and knew that ‘drop the tap’ refers 

to exhausting the air and that the air can be exhausted at any point along the train. In 

relation to this issue, Ms Silva gave inconsistent evidence regarding her knowledge and 

the use of the term ‘drop the tap’. She has said that the terminology used by Qube 

employees was universal within the industry, and even used ‘drop the tap’ herself when 

referring to exhausting the air in an assessment but has subsequently attempted to assign 

different meanings to the terms. Importantly both Ms Silva and Mr Pryor stated that 

whether dropping the tap or dropping the air, a hose connected to a dummy coupler must 

be removed. The removal of the hose from the dummy coupler will allow the release of 

air into the atmosphere and apply the brakes;  

 

(viii) Ms Silva failed to exhaust the air as required by the Shunting Procedure resulting in the 

air being bottled and the brakes not being applied which contributed to the rollaway on 

26 November 2023;  

 

(ix) Ms Silva informed other members of the train crew that she had ‘dropped the tap’ 

(exhausted the air) and therefore applied the brakes when that was not the case, and the 

other members of the train crew relied on that information; 

 

(x) Mr O’Connor Byrne failed to apply a full service application of the brakes as required 

by the Shunting Policy and that contributed to the rollaway on 26 November 2023; 

 

(xi) That clause 15.3 of the Shunting Procedure requires the competent employee (driver 

assistant) to ensure that the air brakes are applied on the wagons being detached and that 

they have been secured by applying sufficient handbrakes before dropping the tap, 

uncoupling the wagons, and instructing the driver to ease off. On this issue, I reject Mr 

Sultan’s evidence that an employee has discretion to determine the order in which they 

may perform a separation. The Shunting Procedure is clear that the air brakes and 

handbrakes must be applied prior to dropping the tap, uncoupling, and easing off; and 








[2025] FWC 500 

 

37 

 

(xii) That Mr Sultan failed to ensure that both the full service application of the brakes and 

the handbrakes had been applied before he uncoupled the wagons, instructed Ms Silva 

to drop the tap, and instructed Mr O’Connor Byrne to ease off, and that failure 

contributed to the rollaway on 26 November 2023. Despite Qube’s position that the lead 

shunter is not in charge, the reality was that Mr Sultan was ‘calling the shots.’ On any 

version of the communications between the train crew, there was no request, 

acknowledgement, or confirmation as to whether a full service application had been 

made by Mr O’Connor Byrne. Mr Sultan’s attempt to shift responsibility to Ms Silva 

ignores the fact that he was the driver assistant performing the separation and he was at 

least equally, if not solely, responsible for ensuring the full service application had been 

made before he (as the competent employee performing the separation) uncoupled the 

wagons and instructed Mr O’Connor Byrne to ease off.  

 

In relation to the handbrakes, even if Ms Silva was responsible for applying the 

handbrakes, Mr Sultan was responsible for ensuring the handbrakes were applied prior 

uncoupling the wagons, instructing Ms Silva to drop the tap, and instructing Mr 

O’Connor Byrne to ease off. As Mr Sultan stated, the time between Ms Silva calling the 

train in clear and his instruction to Mr O’Connor Byrne to ease off was a matter of 

seconds. Mr Sultan must have known that sufficient handbrakes could not have been 

applied within that time. I also consider Mr Berriman’s response to discovering that 

handbrakes were not being applied until after separation was an attempt to dilute the 

responsibility of Mr Sultan. Even if (contrary to the Shunting Procedure) the handbrakes 

could be applied after separation and within the permitted holding time, that is beside 

the point.  As Mr Berriman and Mr Edwards Jnr both stated, the application of the 

handbrakes, along with the full service application of the brakes, are additional safety 

mechanisms to prevent what occurred on 26 November 2023 – that is uncontrolled 

movements of wagons.     

 

[129] In light of my findings, I do not consider it necessary to determine whether Ms Silva 

had performed the task of dropping the tap from the rear of the train at Cringila on the evening 

of 25 November 2023, nor do I consider it necessary to determine whether there was a toolbox 

meeting at the beginning of night shift.  

 

Has the Applicant been dismissed? 

 

[130] A threshold issue to determine is whether the Applicant has been dismissed from their 

employment. 

 

[131] Section 386(1) of the FW Act provides that the Applicant has been dismissed if: 

 

(a) the Applicant’s employment with the Respondent has been terminated on the 

Respondent’s initiative; or 

 

(b) the Applicant has resigned from their employment but was forced to do so because 

of conduct, or a course of conduct, engaged in by the Respondent. 

 








[2025] FWC 500 

 

38 

[132] Section 386(2) of the FW Act sets out circumstances where an employee has not been 

dismissed, none of which are presently relevant. 

 

[133] There was no dispute, and I find that the Applicant’s employment with the Respondent 

was terminated at the initiative of the Respondent. 

 

[134] I am therefore satisfied that the Applicant has been dismissed within the meaning of 

s.385 of the FW Act. 

 

Initial matters 

 

[135] Section 396 of the FW Act requires the Commission to decide four initial matters before 

considering the merits of the application. 

 

[136] There is no dispute between the parties, and I am satisfied on the evidence that: 

 

(a) the application was made within the period required in s.394(2); 

 

(b) the Applicant is a person protected from unfair dismissal; 

 

(c) the Small Business Fair Dismissal Code did not apply to the Applicant’s dismissal; 

and 

 

(d) the Applicant’s dismissal was not a case of genuine redundancy. 

 

Was the dismissal harsh, unjust or unreasonable? 

 

[137] Section 387 of the FW 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); and 

 

(b) whether the person was notified of that reason; and 

 

(c) whether the person was given an opportunity to respond to any reason related to the 

capacity or conduct of the person; and 

 

(d) any unreasonable refusal by the employer to allow the person to have a support 

person present to assist at any discussions relating to dismissal; and 

 

(e) if the dismissal related to unsatisfactory performance by the person – whether the 

person had been warned about that unsatisfactory performance before the dismissal; 

and 

 

(f) the degree to which the size of the employer’s enterprise would be likely to impact 

on the procedures followed in effecting the dismissal; and 

 








[2025] FWC 500 

 

39 

(g) the degree to which the absence of dedicated human resource management 

specialists or expertise in the enterprise would be likely to impact on the procedures 

followed in effecting the dismissal; and 

 

(h) any other matters that the FWC considers relevant. 

 

[138] I am required to consider each of these criteria, to the extent they are relevant to the 

factual circumstances before me.137 

 

[139] I set out my consideration of each below.  

 

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct? 

 

[140] In order for there to be a valid reason, the reason for the dismissal should be “sound, 

defensible or well founded”138 and should not be “capricious, fanciful, spiteful or 

prejudiced.”139 However, the Commission will not stand in the shoes of the employer and 

determine what the Commission would do if it was in the position of the employer.140 

 

[141] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied 

that the conduct occurred and justified termination.141 “The question of whether the alleged 

conduct took place and what it involved is to be determined by the Commission on the basis of 

the evidence in the proceedings before it. The test is not whether the employer believed, on 

reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which 

resulted in termination.”142  

 

[142] Furthermore, and as a Full Bench of the Commission has said “[a] failure to comply 

with a lawful and reasonable policy is a breach of the fundamental term of the contract of 

employment that obliges employees to comply with the lawful and reasonable directions of the 

employer. A substantial and wilful breach of a policy will often, if not usually, constitute a valid 

reason for dismissal.”143 

 

[143] A serious breach of a workplace health and safety policy or an incident where an 

employee places health and safety at risk, particularly in a safety critical industry such as the 

rail industry, will generally constitute a valid reason for dismissal.  

 

[144] In Macklyn v G&S Engineering Services Pty Ltd,144 Deputy President Asbury (as the 

Vice President then was) stated: 

 

[66] A serious breach of a workplace health and safety policy or an incident where an 

employee places health and safety at risk, will generally constitute a valid reason for 

dismissal. This is particularly so when the breach is wilful or reckless and is committed 

in circumstances where the employee is aware of the employer’s policy and the risks 

associated with his or her conduct. In my view the Commission should not lightly 

interfere with the right of an employer to establish, maintain and enforce workplace 

health and safety policies, through the use of appropriate disciplinary processes. 

 

[67] Reasons for dismissal related to conduct, may encompass more than just the 

conduct itself. Those reasons may also include perceptions about that conduct on the 








[2025] FWC 500 

 

40 

part of the employer or conclusions about past or future conduct that the employer has 

drawn. In the present case, it is clear from the evidence of Mr Balsillie that in addition 

to the tagging of a shackle, the reasons for the dismissal included a belief that Mr 

Macklyn had tagged an additional shackle; a concern that he may have tagged other 

equipment; and a view that he could not be trusted in future. 

 

[145] In Singh v Sydney Trains,145 Deputy President Sams stated:  

 

[327] In my view, the conduct in question need not necessarily be wilful, deliberate or 

reckless to constitute a valid reason for dismissal. Conduct which is negligent, 

accidental, inadvertent or careless, particularly in the rail industry, can have disastrous, 

life-threatening consequences. Adherence to safe working policies and practices, 

particularly where persons are specifically trained to be aware of ever present dangers, 

is a cardinal principle for any workplace, but even more so in the rail industry where the 

risk to the safety of employees and the public is obviously so much more acute. It 

involves fast moving trains and potentially dangerous infrastructure. Employees are 

commonly working in high risk track environments as a daily feature of the working 

environment. Such conduct need not be repeated behaviour, but may involve a single 

instance of conduct which threatens the safety of employees or others. I also agree 

with Asbury DP that the Commission would not lightly interfere in the decision of an 

employer to dismiss an employee in such circumstances. 

 

[146] The kind of conduct that is relevant need not be wilful, malicious or intentional, but 

conduct that can imperil or put other employees in the workplace in jeopardy.146  

 

[147] In Hanley v Stramit Corporation Pty Limited,147 Senior Deputy President Richards 

stated: 

 

[78] A failure by an employee to give effect to safety training instances invokes, as in 

this case, a valid reason under s.387 of the Act. An employee who after reasonable 

training does not adopt the behavioural cues necessary to achieve an employer’s 

reasonable safety expectations in a dangerous workplace, is a risk to him or herself, to 

others, and has acted to cause a loss of trust in the employment relationship. There is no 

argument here, I add, that the employer has been inconsistent in the application of its 

safety rules or otherwise given confusing or contradictory signals to employees about 

its expectations in this same regard.  

 

[148] Turning to the circumstances of this matter, I have found that Ms Silva’s conduct on 26 

November 2023 was contrary to the Shunting Procedure. Ms Silva was instructed to exhaust 

the air in order to apply the brakes and failed to do so correctly, despite having been trained on 

that procedure over a period of six months. The effect of this was that the brakes were not 

applied to the wagons. Ms Silva communicated that she had dropped the tap (applied the brakes) 

to the other members of the train crew who relied on that information. Ms Silva’s conduct 

contributed to the rollaway which was a serious safety incident that placed the health and safety 

of herself and other workers at risk.  

 








[2025] FWC 500 

 

41 

[149] Furthermore, the incident occurred only 26 days after Ms Silva had failed a shunting 

assessment because she forgot to drop the tap, and only 12 days after Ms Silva was assessed as 

competent. 148 

 

[150] Ms Silva submitted that there could not be a valid reason for dismissal as she was the 

most junior member of the train crew and was not the lead shunter, the competent employee (as 

defined in the Shunting Procedure), or responsible for exhausting the air. Ms Silva also 

submitted that holding her responsible for procedural deficiencies that were beyond the scope 

of her responsibilities within the shunting process is not sound or defensible.  

 

[151]  I do not accept those submissions. Ms Silva was assessed as a competent employee on 

14 November 2023 and was given a clear instruction to exhaust the air by dropping the tap on 

the night of the incident. While Ms Silva may have held a general dislike for manually releasing 

the air, she was trained in and assessed as competent to undertake vehicle and hose separation 

in accordance with clause 15 of the Shunting Procedure.  

 

[152] Qube submitted it had a valid reason to dismiss Ms Silva by reference to six matters,149 

although some of those matters are more related to arguments against reinstatement. However, 

I accept Qube’s submission that Ms Silva’s conduct on 26 November 2023, which was contrary 

to the Shunting Procedure, was a valid reason for her dismissal. I also accept Qube’s submission 

that the resultant loss of trust and confidence in Ms Silva was a valid reason for her dismissal.  

 

[153] The finding of a valid reason weighs in favour that the dismissal was not harsh, unjust, 

or unreasonable.   

 

Was the Applicant notified of the valid reason? 

 

[154] Proper consideration of s.387(b) requires a finding to be made as to whether the 

applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid 

reason found to exist under s.387(a).150 

 

[155] Ms Silva was notified of the reason for her dismissal in the show cause letter dated 21 

December 2023 and the letter of termination dated 12 January 2024.  

 

 

Was the Applicant given an opportunity to respond to any valid reason related to their 

capacity or conduct? 

  

[156] Ms Silva was given an opportunity to respond, and did respond, to the reason for her 

dismissal.  

 

Did the Respondent unreasonably refuse to allow the Applicant to have a support 

person present to assist at discussions relating to the dismissal? 

 

[157] Qube did not refuse to allow Ms Silva to have a support person. This factor weighs 

neutrally in my consideration. 

 

Was the Applicant warned about unsatisfactory performance before the dismissal? 








[2025] FWC 500 

 

42 

 

[158] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant 

to the present circumstances. This factor weighs neutrally in my consideration. 

 

To what degree would the size of the Respondent’s enterprise be likely to impact on the 

procedures followed in effecting the dismissal? 

 

[159] Ms Silva submitted that this factor should weigh in favour of a finding that her dismissal 

was harsh, unjust or unreasonable on the basis of Mr Allan’s involvement in taking her 

statement. Based on my findings set out at paragraphs [62]-[65] above, I do not accept that 

submission.  

 

[160] Ms Silva also submitted that this factor should weigh in her favour because she was 

subjected to differential treatment. I deal with the issue of differential treatment under s.387(h).  

 

[161] Having dealt with the two matters raised by Ms Silva, I otherwise find that the size of 

the Respondent’s enterprise had no impact on the procedures followed in effecting the 

dismissal. This factor weighs neutrally in my consideration. 

 

To what degree would the absence of dedicated human resource management specialists 

or expertise in the Respondent’s enterprise be likely to impact on the procedures 

followed in effecting the dismissal? 

 

[162] It is not in dispute, and I find that the Respondent’s enterprise did not lack dedicated 

human resource management specialists and expertise. This factor weighs neutrally in my 

consideration.  

 

What other matters are relevant? 

 

[163] Section 387(h) requires the Commission to take into account any other matters that the 

Commission considers relevant. 

 

[164] There are two matters which I consider to be relevant to the question of whether the 

Applicant’s dismissal was harsh, unjust or unreasonable: length of service/age and differential 

treatment.  

 

Length of service/age 

 

[165] I have taken into account Ms Silva’s length of service with Qube, her length of service 

within the industry and her age.151 However, in all the circumstances, I do not consider that 

these matters support a finding that Ms Silva’s dismissal was harsh, unjust or unreasonable.   

 

Differential Treatment 

 

[166] Ms Silva submits that she was subjected to differential treatment compared to Mr 

O’Connor Byrne and Mr Sultan.  

 








[2025] FWC 500 

 

43 

[167] In John Sexton v Pacific National (ACT) Pty Ltd152 (Sexton), Vice President Lawler 

dealt with the question of differential outcomes in unfair dismissal cases as follows153: 

 

In my opinion the Commission should approach with caution claims of differential 

treatment in other cases advanced as a basis for supporting a finding that a termination 

was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining 

whether there has been a "fair go all round" within the meaning of s.170CA(2). In 

particular, it is important that the Commission be satisfied that cases which are advanced 

as comparable cases in which there was no termination are in truth properly comparable: 

the Commission must ensure that it is comparing "apples with apples". There must be 

sufficient evidence of the circumstances of the allegedly comparable cases to enable a 

proper comparison to be made. Obviously, where, as in National Jet Systems, there is 

differential treatment between persons involved in the same incident the Commission 

can more readily conclude that the cases are properly comparable. However, even then 

the Commission must approach the matter with caution. Specifically, the Commission 

must be conscious that there may be considerations subjective to the circumstances of 

an individual that caused an employer to take a more lenient approach in an allegedly 

comparable case. For example, a worker guilty of particular misconduct justifying 

termination might be shown leniency because of extreme need or stress arising from the 

serious illness of a close dependent. Another worker guilty of the same misconduct 

could not necessarily rely upon the leniency shown to the first worker as a basis for 

demonstrating that his or her termination was harsh, unjust or unreasonable. Many other 

examples could be constructed. 

 

[168] In Darvell v Australian Postal Corporation,154 the Full Bench endorsed the approach in 

Sexton stating:  

 

[21]  The issue of differential treatment of employees in respect of termination of 

employment was considered by Vice President Lawler in Sexton v Pacific National 

(ACT) Pty Ltd. 6 In Sexton’s case, his Honour said: 

 

“[33] It is settled that the differential treatment of comparable cases can be a 

relevant matter under s.170CG(3)(e) to consider in determining whether a 

termination has been harsh, unjust or unreasonable … 

 

[36] In my opinion the Commission should approach with caution claims of 

differential treatment in other cases advanced as a basis for supporting a finding 

that a termination was harsh, unjust or unreasonable within the meaning of 

s.170CE(1) or in determining whether there has been a ‘fair go all round’ within 

the meaning of s.170CA(2). In particular, it is important that the Commission be 

satisfied that cases which are advanced as comparable cases in which there was 

no termination are in truth properly comparable: the Commission must ensure 

that it is comparing ‘apples with apples’. There must be sufficient evidence of 

the circumstances of the allegedly comparable cases to enable a proper 

comparison to be made.” 

 

[22]  Section 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly 

similar to s.387(h) of the FW Act. 






https://www.fwc.gov.au/document-search/view/1/aHR0cHM6Ly9zYXNyY2RhdGFwcmRhdWVhYS5ibG9iLmNvcmUud2luZG93cy5uZXQvZGVjaXNpb25zL0RydXBhbDctb2xkLWRlY2lzaW9ucy1kZWNpc2lvbnNzaWduZWQvMjAxMC8yMDEwLzIwMTBmd2FmYjQwODIuaHRt0?sid=&q=darvell#P109_10103


[2025] FWC 500 

 

44 

 

[23]  Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President 

Kaufman said: 

 

“[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and 

the other nurses concerned. However, on balance I have concluded that this 

factor does not render the otherwise justified termination of her employment into 

one which is harsh, unjust or unreasonable. There was no evidence led as to why 

the other three nurses were treated differently to Mrs Daly. The fact that none of 

them was sacked does not of itself render the treatment of Mrs Daly unjust. 

Although differential treatment of employees can render a termination of 

employment, harsh, unjust or unreasonable, that is not necessarily the case. I 

agree with Lawler VP’s observation in Sexton that ‘there must be sufficient 

evidence of the circumstances of the allegedly comparable cases to enable a 

proper comparison to be made.’ There is not, in this case, sufficient evidence to 

enable a proper comparison to be made. Having regard to Mrs Daly’s years of 

experience, her direct involvement with the patient to a greater extent than that 

of the other nurses and her refusal to acknowledge that she had acted 

inappropriately, I am not prepared to find that because the employment of the 

other nurses involved was not terminated, Mrs Daly’s termination of 

employment was harsh, unjust or unreasonable.” [Footnotes omitted] 

 

[24]  We respectfully concur with their Honours. 

 

[169] Where the Commission is considering the issue of differential treatment, it must do so 

carefully and with caution. In coming to any conclusion, the Commission must be conscious of 

any subjective considerations that may have led to the employer taking a different (or more 

lenient) approach.  

 

[170] In this matter, I have found that the actions of Ms Silva, Mr O’Connor Byrne, and Mr 

Sultan were in breach of the Shunting Procedure, and each contributed to the rollaway which 

was consistent with the findings of the investigation. Yet, notwithstanding the findings of the 

investigation, or the discovery by Mr Berriman that some employees (such as Mr Sultan) were 

deviating from (breaching) the Shunting Procedure by separating wagons before the handbrakes 

(an additional safety mechanism to prevent a rollaway) had been applied, neither Mr O’Connor 

Byrne nor Mr Sultan were subjected to any disciplinary action.  

 

[171] On becoming aware that other breaches of the Shunting Procedure, that had the effect 

of removing the additional safety mechanisms to prevent rollaways, Mr Berriman stated that 

those actions are not encouraged. In the context of the safety critical industry in which Qube 

operates, and his own evidence as to the purpose of applying the handbrakes prior to separating 

wagons, Mr Berriman’s response beggars belief. One would have thought that on becoming 

aware of that practice and in the context of the events of 26 November 2023, Mr Berriman 

would have been jumping up and down on any deviation of the Shunting Procedure that had 

the potential to put the health and safety of workers at risk, rather than simply saying it is not 

encouraged. As I stated earlier, I consider that response was an attempt to dilute Mr Sultan’s 

responsibility and it supports a view that there was differential treatment. 

 








[2025] FWC 500 

 

45 

[172] Qube submitted that there were subjective considerations that distinguish Ms Silva’s 

conduct from that of Mr O’Connor Byrne and Mr Sultan and pointed to the matters set out at 

paragraphs [87] and [88] above. In particular, Qube points to Ms Silva’s lack of remorse, short 

period of service between the shunting assessments and the incident, and that Ms Silva bottled 

the air.     

 

[173] I have carefully considered these matters, and I am of the view that each member of the 

train crew was required to comply with the Shunting Procedure and each of their respective 

actions occurred in the same shunting movement and contributed to the rollaway. I consider 

comparing the treatment of Ms Silva to that of Mr O’Connor Byrne and Mr Sultan is an ‘apples 

with apples’ comparison and that Ms Silva was subjected to differential treatment. This weighs 

in favour that Ms Silva’s dismissal was harsh, unjust or unreasonable.  

 

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or 

unreasonable? 

 

[174] I have made findings in relation to each matter specified in section 387 as relevant. I 

must consider and give due weight to each as a fundamental element in determining whether 

the termination was harsh, unjust or unreasonable.155  

 

[175] Having considered each of the matters specified in section 387 of the FW Act, I am not 

satisfied that the dismissal of Ms Silva was harsh, unjust or unreasonable.  

 

[176] I have found that Qube had a valid reason for the Ms Silva’s dismissal and the dismissal 

was procedurally fair. The only factor pointing towards a finding that the dismissal was unfair 

was the differential treatment of Ms Silva as compared to Mr O’Connor Byrne and Mr Sultan.  

 

[177] However, in considering whether Ms Silva’s dismissal was harsh, unjust or 

unreasonable, I do not consider any that harshness or unfairness arising from the differential 

treatment outweighs the seriousness of her conduct in performing what is a routine task so soon 

after she was assessed as competent on 14 November 2023, having failed an earlier assessment 

on 31 October 2023 for the same reason. 

 

[178]   In coming to this decision, I have taken into account all of the evidence and 

submissions of the parties. I have also had regard to the object stated at s.381(2) of the FW Act 

to ensure that a “fair go all round” is accorded. 

 

Remedy 

 

[179] Ms Silva sought to be reinstated to her former position or, in lieu of reinstatement, an 

order that Qube pay her an amount of compensation. While I have found that Ms Silva was not 

unfairly dismissed, if in the alternative I had found that Ms Silva was unfairly dismissed, I 

would have declined to order any remedy for the same reasons as set out in paragraphs [176] 

and [177] above.    

 

[180] If, in the further alternative, I was considering the issue of remedy, I provide the 

following brief comments about reinstatement and compensation. First, I consider it would be 

inappropriate to reinstate Ms Silva having regard to her conduct on 26 November 2023, her 








[2025] FWC 500 

 

46 

evidence in these proceedings, and Qube’s concerns regarding the risk of a similar incident 

occurring in the future. Relevant to this matter is Ms Silva’s evidence regarding working in the 

dark on night shift and that it was common for her to forget to take a torch or headlight and if 

she could not see what she was doing, she would just do her best.156 This is consistent with her 

evidence in her statement-in-reply that on the night of the incident, it was dark and she did not 

notice, or turn her mind to, the idea that the dummy couplers were still connected.157 That 

evidence rules out any confidence that the Commission or Qube could have in Ms Silva to 

perform her duties safely and diligently if reinstated.  

 

[181] Second, if an order for compensation was being considered, then the anticipated period 

of employment would be at the lower end of the range having regard to Ms Silva’s conduct 

occurring only 12 days after being assessed as competent, and 26 days after failing an 

assessment for the same conduct. That, combined with the mandatory reduction under s.392(3) 

of the FW Act, would result in the amount of any order for compensation being marginal at 

best.   

 

Conclusion and Disposition 

 

[182] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not 

satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW 

Act.  

 

[183] The Application is dismissed. An Order to that effect will be issued with this decision.  

 

[184] I wish to make one final comment. In light of my findings, Qube may wish to revisit 

whether any disciplinary action should be taken against Mr O’Connor Byrne and Mr Sultan in 

relation to the incident.  

 

 
COMMISSIONER 

 
Appearances: 
Ms S Mbele of the Australian Rail, Tram and Bus Industry Union for the Applicant. 

Ms C Bembrick of counsel, and Mr J Allen, solicitor for the Respondent. 

 

Hearing details: 

Sydney: 

2024. 

14 and 15 May. 


E THE FAIR WORK! THE SEAL NOISSINY




 



[2025] FWC 500 

 

47 

 

Printed by authority of the Commonwealth Government Printer 

 

PR784524 

 

 

 
1 Form F2 Application; Transcript at PN2918-PN2919.  

2 Exhibit R1 at [5], [10].  

3 Exhibit R1 at [13], [19] and [20]; Exhibit R8 at [4].  

4 Exhibit R1 at [14] 

5 Exhibit R1 at [13], [15].  

6 Exhibit R1 at [14], [37].  

7 Exhibit R1 at [12], [16] and [17]; Exhibit R3 at [13]; Exhibit R8 at [8].  

8 Exhibit R1 at [18], Annexure JB1.  

9 Exhibit R1 at [18], Annexure JB1. 

10 Exhibit R1 at [34]. 

11 Exhibit R1 at [34]. 

12 Exhibit R3 at [19], [45]; Transcript at PN1941. 

13 Exhibit R1, Annexure JB1 (at clause 15); Exhibit R7 at [6].  

14 Exhibit R1 at [39]; Transcript PN335-PN337.  

15 Exhibit A2, Annexure LS2 (Hearing Book at p.56); Exhibit R1 at [40]. Transcript at PN337.  

16 Exhibit A2, Annexure LS2 (Hearing Book at p.58); Exhibit R1 at [40]-[41]; Transcript at PN959, PN976-PN978, PN1669-

PN1674. 

17 Exhibit R1, Annexure JB1. 

18 Exhibit A2 at [6]; Exhibit R1 at [23]-[25], [42]-[45], Annexures JB2-JB3, JB9-JB10.  

19 Exhibit R1 at [42], Annexure JB9 (Clause 7.1).  

20 Exhibit R1 at [28]-[29]; Exhibit R3 at [14]; Exhibit R8 at [9].  

21 Exhibit R1 at [45], Annexures JB11-JB16. 

22 Transcript at PN794, PN847-PN858, PN989. 

23 Exhibit R4 at [2]-[5].  

24 Exhibit R1 at [49]-[50], Annexure JB18; Exhibit R4 at [6], Annexure JE1.  

25 Transcript at PN769. 

26 Transcript at PN741-PN788. 

27 Transcript at PN1927-PN1929.  

28 Exhibit A2 at [9]; Exhibit R1 at [51], Annexure JB19; Exhibit R4 at [8], Annexure JE2.   

29 Although employed as a Shift Manager, Mr Sultan was rostered for an extra shift as a Driver Assistant on 25 November 2023 

night shift. 

30 Exhibit A1 at [22]; Exhibit A2 at [13]; Exhibit R3 at [21]; Exhibit R8 at [25]; Transcript at PN1205-PN1212, PN 1304, 

PN1800. 

31 Exhibit R3 at [21].  

32 Exhibit A1 at [22]; Exhibit A2 at [13]; Exhibit R3 at [23]; Exhibit R6 at [14]; Exhibit R8 at [25]-[28].  

33 Exhibit A2 at [24]-[25], Annexure LS2; Exhibit A3 at [18]; Exhibit R3 at [24]-[32], [40], Annexure CA4; Exhibit R6 at [16]; 

Exhibit R8 at [29]-[38]; Transcript at PN1150-PN1158, PN1271-PN1306, PN1348, PN1394-PN1395, PN1754-PN1771, 

PN2367, PN2408-PN2426, PN2445, PN2770-PN2773, PN2768, PN2825.  

34 Exhibit A2, Annexure LS2; Exhibit R3 at [32]; Exhibit R8 at [44]. 

35 Exhibit A2 at [24]-[25], [34], [37], Annexure LS2; Transcript at PN1380, PN1384-PN1385, PN1387, PN1394.  

 








[2025] FWC 500 

 

48 

 
36 Exhibit R8 at [32], [48d]. 

37 Exhibit R3 at [37], Annexure CA4 

38 Exhibit R3 at [26], [37], [45], Annexure CA4; Exhibit R6 at [16]; Exhibit R8 at [32]. 

39 Exhibit A2, Annexure LS2; Transcript at PN655-PN709, PN1357-PN1370.  

40 Transcript at PN666, PN696, PN709, PN1359, PN1370. 

41 Exhibit A3 at [19]; Exhibit R3 at [45], Transcript at PN485-PN486.  

42 Exhibit R3, Annexure CA4. 

43 Exhibit A2 at [32]-[33], Annexure LS2; Transcript at PN1385, PN1394, PN1824-PN1825; PN2433, PN2439, PN2442-

PN2443. 

44 Exhibit A2, Annexure LS2; Exhibit R8 at [40].  

45 Exhibit R6 at [18]-[19].  

46 Exhibit A2, Annexure LS2.  

47 Transcript at PN1345-PN1346.  

48 Exhibit R3 at [33]; Exhibit R5 at [15].  

49 Exhibit A2 at [11], Annexure LS2.  

50 Exhibit R3 at [34], Annexure CA3; Exhibit R5 at [16]-[17].  

51 Exhibit R5 at [17], Transcript at PN2152-PN2153, PN2158-PN2159. 

52 Exhibit R3 at [35].  

53 Exhibit A2 at [12]-[13], Annexure LS2; Exhibit R3 at [36]; Exhibit R6 at [20]; Exhibit R8 at [45]. 

54 Exhibit R3 at [37].  

55 Exhibit R8 at [46].  

56 Exhibit R8 at [47]-[48], Annexure OS1. 

57 Exhibit R6 at [20], Annexure SB1. 

58 Exhibit A2, Annexure LS2. 

59 Exhibit A2, Annexure LS2; Transcript at PN655-PN709, PN1357-PN1370.  

60 Exhibit R3 at [37]-[39].  

61 Transcript at PN1360-PN1361. 

62 Transcript at PN1352-PN1356.  

63 Exhibit R3 at [40], Annexure CA4.  

64 Exhibit R2 at [52], Annexure JB20; Exhibit R3 at [40]-[41]; Exhibit R5 at [18], Annexure RDM4.  

65 Exhibit R1 at [54].  

66 Exhibit R1 at [55].  

67 Exhibit R1 at [56], Annexure JB22. 

68 Exhibit R1 at [57]-[59], Annexures JB23, JB24. 

69 Exhibit LS2 at [15], Annexure LS2.  

70 Exhibit R1 at [60]-[62]. 

71 Exhibit R5 at [19], [21]-[22], Annexure RDM2 (Occurrence 5).  

72 Exhibit R5 at [24]. 

73 Ibid. 

74 Exhibit R5 at [25].  

75 Exhibit R1 at [62], Annexure JB25; Exhibit R5 at [26], Annexure RDM7. 

76 Exhibit R1 at [63], Annexure JB26; Exhibit R5 at [27], Annexure RDM7. 

77 Exhibit R1 at [64], Annexure JB26.  

78 Exhibit R1 at [65]-[66]; Exhibit R5 at [23]-[31], Annexure RDM6.  

 








[2025] FWC 500 

 

49 

 
79 Exhibit R1 at [67], Exhibit R5, Annexure RDM6.  

80 Exhibit R1 at [71].  

81 Exhibit A2 at [16]-[17], Annexure LS1; Exhibit R1 at [70], Annexure JB27. 

82 Exhibit A2 at [18], Annexure LS2; Exhibit R1 at [74], Annexure JB29. 

83 Exhibit R1 at [75].  

84 Exhibit R1 at [76].  

85 Exhibit R1 at [77]. 

86 Exhibit A2 at [19], Annexure LS3; Exhibit R1 at [78]. 

87 Exhibit A2 at [34]-[37]; Exhibit A3 at [6]-[7]; Transcript PN1043, PN1045, PN1120-PN1128, PN1328. 

88 Exhibit A2 at [26], [33]-[36].  

89 Exhibit A3 at [18]; Transcript at PN1048, PN1337, PN1402-PN1403, PN1413-PN1415.  

90 Transcript at PN945-PN946, PN1438; Exhibit A3 at [23]. 

91 Transcript at PN959-PN1012, PN1126. 

92 Transcript at PN1075-PN1094. 

93 Transcript at PN1074; PN1143-PN1144. 

94 Transcript at PN1021.  

95 Transcript at PN1038, PN1042.  

96 Transcript at PN1216-PN1219.  

97 Transcript at PN1308-PN1328. 

98 Exhibit A1 at [6]-[7]; Transcript at PN263, PN348-PN349. 

99 Exhibit A1 at [6]; Transcript at PN277, PN289, PN379. 

100 Transcript at PN350.  

101 Exhibit R1 at [39].  

102 Transcript at PN1675-PN1683.  

103 Exhibit R3 at [19], [45]; Transcript at PN1808-PN1810.  

104 Exhibit R8 at [12], [48]; Transcript at PN2832-PN2839.  

105 Transcript at PN2440-PN2445.  

106 Transcript at PN1974-PN1975.  

107 Transcript at PN1941-PN1943.  

108 Exhibit R7 at [4]-[7]; Transcript at PN2557-PN2562.  

109 Exhibit R5 at [32].  

110 Transcript at PN160, PN2126-PN2127, PN2734-PN2735. 

111 Transcript at PN2367, PN2334-PN2437, PN2452-PN2460.  

112 Exhibit R5 at [31], Annexure RDM6; Transcript at PN2127, PN2214. 

113 Transcript PN1570-PN1575.  

114 Exhibit R1 at [38].  

115 Ibid.  

116 Transcript at PN1688-PN1691.  

117 Transcript at PN1654.  

118 Transcript at PN1669-PN1672. 

119 Transcript at PN1626-PN1627.  

120 Exhibit R5 at [24]. 

121 Transcript at PN2184, PN2193, PN2265. 

122 Exhibit R4 at [6]; Transcript at PN2022-PN2024.  

 








[2025] FWC 500 

 

50 

 
123 Transcript at PN1991-PN1997.  

124 Exhibit A1 at [22]; Exhibit A2 at [13]; Exhibit R3 at [21]; Exhibit R8 at [25]; Transcript at PN1205-PN1212, PN 1304, 

PN1800. 

125 Transcript at PN1815-PN1816.  

126 Exhibit R8 at [12], [48].  

127 Transcript at PN2750, PN2762, PN2794. 

128 Transcript at PN2805. 

129 Transcript at PN2801-PN2806 

130 Transcript at PN2800-PN2801, PN2807. 

131 Transcript at PN2824.  

132 Transcript at PN2796-PN299. 

133 Exhibit R8 at [48], Transcript at PN2734-PN2740, PN2761.    

134 Transcript at PN1576, PN1589, PN2773, PN2796-PN2798.  

135 Exhibit R7 at [11], Annexure BG1.  

136 See Exhibit R1, Annexure JB1 (clause 15.3, dot points 4 and 5).  

137 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross 

VP, Lacy SDP, Simmonds C, 21 March 2002) at [69]. 
138 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373. 
139 Ibid. 
140 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685. 
141 Edwards v Justice Giudice [1999] FCA 1836, [7]; Sydney Trains v Hilder [2020] FWCFB 1373 at [26]. 
142 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]; 

Sydney Trains v Hilder [2020] FWCFB 1373 at [26]. 
143 B, C and D v Australian Postal Corporation t/a Australia Post [2013] FWCFB 6191 at [36]. 

144 [2013] FWC 5303 at [66]-[67].  

145 [2019] FWC 182 at [327], cited with approval by the Full Bench in Sydney Trains v Hilder [2020] FWCFB 

1371 at [35]. 
146 Gottwald v Downer EDI Rail Pty Ltd [2007] AIRC 969 (Gottwald) at [102] per Richards SDP (see also at [98]). 

See also IGA Distribution (Vic) Pty Ltd v Nguyen [2011] FWAFB 4070 at [14]; and Parmalat Food Products v 

Wililo [2011] FWAFB 1166 at [18], [19], [26] and [34].  
147 [2016] FWC 1150. 

148 See Gottwald at [99]-[100].  

149 Transcript at PN3054-PN3055.  

150 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at 

[55]. 

151 See Applicant’s Submissions in Chief.  

152 [2003] AIRC 506. 

153 Ibid at [36].  

154 [2010] FWAFB 4082 at [21]-[24]. 

155 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon 

Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice 

[1999] FCA 1836 at [6]-[7].  

156 Transcript at PN1150-PN1158.  

157 Exhibit A3 at [18].  






https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb7498.htm
https://www.fwc.gov.au/documents/alldocuments/pr915674.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915674.htm
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/Walton_v_Mermaid_Dry_Cleaners.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb1373.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb1373.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb6191.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwc5303.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc182.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb1371.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb1371.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb4070.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb1166.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc1150.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb6429.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb533.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb4082.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915674.htm

Cases cited by this decision: