Fair Work Commission|2022-03-16

Michael Rainbow v Queensland Rail T/A Queensland Rail [2022] FWC 589 (16 March 2022)

[2022] FWC 589 [Note: An appeal pursuant to s.604 (C2022/1965) was lodged against this decision.]

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

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

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

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

[4] On 30 May 2017, the Applicant was issued with a warning in relation to an incident in which he had used profanities in breach of the Code of Conduct. On 19 May 2021, he was issued with a final warning because of an incident in which he had spoken "in an intimidating manner and/or swore at [another employee] using words to the effect of 'piss off'".

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

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

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

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

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

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

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

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

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

"I'm sick of this shit";

"I know you'll take it to HR, do whatever you want, I don't care anymore";

"I don't give a shit"; and/or

"I'm booking off and don't know when I'll be back.""

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[36] In respect of the parking of the vehicle across the live lines, it is submitted that although a technical safety breach occurred - and indeed the fact that a block was not on the line was admitted by the Applicant - it was low risk. That is particularly so given that the Applicant was in charge of the workshop on that date. He had control of the shunts and no vehicular traffic could move, arrive, shunt or otherwise create a safety risk without his knowledge. This was especially so because he was two-way radio equipped at all relevant times and he knew full well that the only possible traffic was a shunt expected on Road 1 between 4:00pm and 5:00pm. The incident which led to his termination occurred at 3:15pm. The Applicant asserts that the situation was under his control at all times. This should have been immediately recognised and considered by Ms Coran who could have, for example, provided a verbal warning or direction rather than appearing in a confrontational manner and escalating the situation which in turn prompted the Applicant's heightened reaction and bad language.

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

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

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

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

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

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

[43] Another important piece of evidence when considering the Applicant's use of bad language is that given by Darryl Ingles, who stated that on the date of incident he heard Ms Coran while in the Depot office, say in a loud voice, "He's doing fucken what?" The Applicant accepts that Ms Coran denied this under cross examination, but submits she faltered on this point when further examined on it.

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

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

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

[47] Mr Eaton also gave evidence of a lackadaisical safety attitude at the Portsmith Depot. He gave evidence of the movement of a diesel locomotive through the workshop without a lock on the line and without the use of the shunt siren sounding. Mr Eaton's evidence is that after he reported this matter, someone changed his safety breach report and Ms Coran engaged in retaliation against him for making the safety breach complaint. Ms Coran was cross-examined in some detail on this matter. At first, she gave concrete and first-hand evidence as to the safety procedures in place, including a claim that a "lockout' had been placed on the line (specifically denied by Mr Eaton). However, under further cross-examination it was established that Ms Coran was in her office and not present when the alleged breach occurred. It is submitted that there is nothing wrong with a manager being in her office while at work. In fact, being in the office may be a large part of her day. However, to give evidence as to what was occurring up at the diesel workshop when she was nowhere near the relevant incident is at the very least disingenuous, if not a fabrication as to what occurred. Mr Eaton also gives evidence as to the lengths Ms Coran went to remove him from the workplace. While it is a matter for the Commission, it is respectfully submitted that the use of Complaint, HR Grievance and Code of Conduct procedures by Ms Coran against Mr Eaton is strikingly similar to the "3 strikes" approach used against Mr Rainbow.

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

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

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

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

Unreasonable and harsh in all of the circumstances

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[81] Ms Coran asserts that she was not aware of the incident involving the contractors blocking the line or the truck being parked across the line for an extensive period. In response to questions about those incidents, Ms Coran stated that, "it was their [Mr Richardson and Mr Peter's respectively] responsibility as an employee to report any safety incidents and they failed to do so on both occasions."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[101] The Respondent asserts that the Applicant had an opportunity to respond to the allegations against him. He chose not to provide a formal response to the investigation report when provided the opportunity to do so on 2 September 2021. However, he through his representative, responded to the show cause notice dated 8 October 2021. The Respondent asserts that the Applicant's response was considered in deciding the appropriate action. In fact, it was the Applicant's continued claims that his conduct was minor, which contributed to their decision to terminate his employment. The Respondent again asserted that such comments demonstrate a failure to appreciate that rail tracks are always considered a dangerous environment and that complacency should never be allowed to set in. The Respondent says that as a long-term employee, the Applicant should have appreciated the seriousness placed on safety and understood that foreigners had been actively discouraged by the Respondent.

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

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

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

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

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

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

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

[109] The Respondent points to Ward v Kimberley Ports Authority as being analogous in respect of the issues of safety when compared with alleged mitigating factors such as length of service.[2] Taking into account the Applicant's 30-year history in the metal fabrication, mining and construction sectors, Commissioner Cloghan concluded that workplace policies and the possible consequence of a breach of such policy could not have been foreign to the Applicant. The Respondent asserts that the same can be said in this matter. The Applicant, having been employed with the Respondent for a lengthy period, was well aware of the stringent safety procedures, as well as behavioural expectations under the Code of Conduct and any potential ramifications.

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

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

[112] As to Mr Eaton, the Respondent says that he too did not witness the incident and his evidence is irrelevant. He gave evidence of an incident (on or before 2 June 2016) involving a diesel locomotive. He alleged that Ms Coran did not want the matter reported. What Mr Eaton did not specify in the affidavit is that there were other safety mechanisms in place at the time of the locomotive movement as per procedure at the time of that event. Further, after he raised the issue of the alarm not being sounded, Ms Coran took steps to have procedure changed. Mr Eaton alleges that he resigned as result of bullying from Ms Coran, however Mr Eaton has not corroborated those allegations or provided any evidence in support. The Respondent submits that Mr Eaton resigned because he was being held accountable for his poor behaviour by way of a HR investigation into an entirely separate event. Mr Eaton's affidavit is selective in detail and seeks to paint a picture of Ms Coran that is entirely incorrect. This goes directly to his credibility.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[129] I took each of the Applicant's witnesses to be straightforward, honest and frank men. I was troubled by their comments that in giving evidence in support of the Applicant, they felt they may be making themselves a target of the Respondent, specifically Ms Coran. I have no way of knowing whether those fears are founded or will come to fruition, however I am certain that should any one of those men find themselves the subject of proceedings like this one, the Commission will review their case with a very keen eye to ensure that is not the case.

[130] As to the Respondent's witnesses and representatives, each maintained that safety was of paramount importance to the Respondent. While that may be the case, there seemed an unwillingness by each witness to contemplate, even for a moment, that their action had been severe in the present circumstances. Very little weight was seemingly given by anyone in management, to the gravity of the decision to terminate the Applicant's employment and the impact that such a decision might have on an individual who had served them for more than three decades. Such contemplation would not have demonstrated a weakness in respect of their case, but rather a more thoughtful and wholistic approach to the situation in which they found themselves.

[131] As to Ms Coran, I accept that she felt her management style and integrity were in question given the nature of the allegations made against her by the Applicant and others. Undoubtedly, giving evidence in these proceedings would have been stressful and intimidating. However, she seemed reluctant, for example, to admit that she occasionally used colourful language herself and couched her concession by saying that she would never direct it at an employee. Similarly, she gave evidence with respect to matters about which she did not have firsthand experience and then became defensive with the Applicant's counsel attempted to tease out her actual knowledge of the safety breach in question. She raised an incident in which the Applicant had been involved as being another example of his poor attitude towards safety, despite no formal action ever being taken in respect of it.

[132] Like all the Respondent's witnesses, Mr Benstead agreed that safety was of utmost importance to the Respondent. That is no doubt the case. However, while he broadly said that years of service was considered, he had not appeared to engage with the Applicant's particular circumstances before deciding to terminate his employment.

[133] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees);

(b) whether the person was notified of that reason;

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;

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

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal;

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the Commission considers relevant.

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

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

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

[136] As Vice President Hatcher observed in Raj Bista v Group Pty Ltd t/a Glad Commercial Cleaning, establishing a factual basis for the reason for dismissal will not of itself demonstrate the existence of a valid reason.[4] It must, as s.387(a) makes clear, be a valid reason for dismissal. To be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[5] and should not be "capricious, fanciful, spiteful or prejudiced."[6] As summarised by Deputy President Asbury in Smith v Bank of Queensland Ltd a "dismissal must be a justifiable response to the relevant conduct or issue of capacity. Factually-established conduct which might, for example, justify the issue of a reprimand or a warning may not necessarily justify dismissal".[7]

[137] In Bista, Hatcher VP referred to the decision of the Full Court of the Federal Court in Edwards v Giudice[8] as being authority for the proposition that the consideration of whether there is a valid reason for dismissal requires an assessment of whether the conduct was so serious as to justify termination as a sound, defensible or well-founded response.[9]

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

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

[126] I do not understand that there is a rule that the gravity of the misconduct must be considered under s. 387(a) devoid of any mitigating factors a dismissed employee may raise. While the gravity of the conduct must be considered and assessed, in my view, there are some mitigating factors which may also go directly to the validity of a reason for dismissal by mitigating the seriousness of the conduct for which a person was dismissed. Examples of some of these factors may be lack of training or the dismissed employee being placed under undue pressure by some failure on the part of the employer, which contributed to the conduct for which the employee was dismissed. Those matters may go to the reasonableness of the dismissal on the basis that they mitigate the gravity of the employee's conduct. There are other mitigating factors which relate to personal circumstances of the dismissed employee and which may render the dismissal harsh, notwithstanding that the gravity of the employee's conduct justifies dismissal. The first category of mitigating factors falls for consideration under s. 387(a) of the Act and the second category under s. 387(h)." (citations omitted)[10]

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

[140] I am not satisfied that doing a foreigner - that is filling his tyres with air while on a break - was a valid reason for dismissal. That is particularly so given that the evidence demonstrated that it was not an uncommon practice for employees at the site. Even if that established practice was not in existence, I would not be satisfied that the Applicant's conduct in that regard warranted dismissal.

[141] As to the coarse language used by the Applicant, I acknowledge that there were at least two prior instances in which he had been reprimanded for similar language. However, one must consider the context of the Applicant's employment. He has been working on a train line for the last 33 years. I am reminded of Commissioner Riordan's comments in Gosek v Illawarra Coal Holdings Pty Limited T/A South32, that the Applicant there worked "in a coalmine - not a convent. The use of inappropriate language in this workplace is commonplace and has been condoned by [the Respondent]".[13] Some rough language in the context of the Applicant's work environment hardly seems surprising or problematic. Indeed, the language referred to in the final warning document - that he had said "piss off" - seems to be at the milder end of any spectrum of coarse language.

[142] As to the language used by the Applicant when Ms Coran spoke to him about the safety incident - namely, "I've had enough of this shit" - while not polite, it is hardly particularly offensive. That is especially so given the nature of the workplace and the fact that swearing was hardly uncommon onsite. Even Ms Coran admitted to occasionally swearing, while others suggested her use of such language may have even been frequent. Whether that is true is immaterial. Ms Coran's evidence was that while she sometimes will swear, it was not towards at any of her direct reports. In the same way, the Applicant's comments were not directed at her but at the situation in which they found themselves. There is no evidence before me that the Applicant's expletives were uttered with aggression; more likely, based on the evidence before me, it was simply an expression of his frustration.

[143] The Applicant's response must also be viewed in light of the fact that he thought he was being unfairly targeted by Ms Coran. He points to the fact that other more serious safety breaches had occurred on the site under her view, control and management which were not met with the same severity of consequences as the Applicant's technical safety breach, even though in his circumstances, the risk of actual (or potential) harm to him or anyone else was negligible. When she approached him, he felt like she was deliberately confrontational, and this provoked his reaction. While I accept the Respondent's submission that the Applicant is a grown man and therefore responsible for his own behaviour, I also acknowledge that in the circumstances as he viewed them, tempers were running particularly high.

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

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

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

[147] Contrary to the Respondent's assertions, I am not satisfied that the Applicant's conduct was a reckless breach of safety procedures. He did not set out to endanger the health and safety of himself or anyone else. The Applicant's long career with the Respondent, unblemished by any other significant safety breaches, does not demonstrate any propensity for such conduct. Nevertheless, he did decide to park his car across the live line. Though this technically constituted a safety breach, the actual risk was negligible. He was armed with a two-way radio, so would be informed immediately of any movement of trains or shunts, which would mean he would have an opportunity to remove himself and his vehicle from danger. He was also aware that no train was expected to arrive for approximately another 45 minutes. Consequently, he did not perceive there to be any danger.

[148] There is no doubt that the incident involved the Applicant doing something in breach of safety procedures; the Applicant admits as much. I accept that in ordinary circumstances employee's cannot be left to determine which safety procedures they comply with based on the danger as assessed by themselves. Safety procedures are in place to keep employees and those around them safe.

[149] I accept that a safety breach of this kind must be met with consequences from the Respondent. It is not my role to stand in the shoes of the employer. Therefore, while another cooler head may not have terminated the Applicant's employment for the technical - negligible - safety breach, I am satisfied that the Respondent did have a valid reason to terminate the Applicant's employment.

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

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

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

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

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

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

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

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

(h) any other matters that the FWC considers relevant

[155] I have regard to the fact that the Applicant had worked for the Respondent for 33 years, during which time there had been no other issues with his performance in respect of safety. The Applicant is a man of senior years, trained as a carpenter, in an area with limited employment opportunities for someone of his age and skill set. The termination of his employment has had a significant impact on him and his family.

[156] His conduct was a deliberate act but not a wilful breach of safety procedures or one which recklessly disregarded the safety of himself or others. It was argued further on the Applicant's behalf that the decision to terminate the Applicant's employment was harsh and disproportionate to the gravity of his conduct. The Respondent could have elected to impose a lesser sanction upon the Applicant but did not do so. The Respondent's view was that the Applicant's departure from the prescribed procedures was so great that it could no longer reasonably risk the Applicant's continued employment. It was repeatedly stated on the Respondent's behalf that it takes safety very seriously - always - and has a zero-tolerance policy towards safety breaches given the high-risk nature of the environment.

[157] However, there was a tendency by the Respondent - at first instance by Ms Coran when she arrived on 28 July 2021 and then subsequently by each person called as a witness and in its submissions - to inflate the gravity and seriousness of the Applicant's conduct. That is particularly so given that the evidence suggests that it was commonplace for others to conduct foreigners on their vehicles. The Applicant said he did not know whether these have been performed across the line or next to it. That said, it was clear from the evidence that there had developed a practice of people pumping their tyres in the general vicinity of the train line. One would have thought that this would have warranted some further investigation. Had there been evidence of such a practice arising from the investigation, one might pause before terminating the Applicant for such conduct. There seems to have been little investigation by the Respondent into this before a decision was made to terminate the Applicant.

[158] There was some troubling evidence from a number of witnesses who had formed the view that this particular incident was not properly and realistically evaluated based on the gravity and seriousness of the breach, or indeed the common practices at the workplace, but rather an opportunistic attempt by management to remove the Applicant from the workplace. The evidence given by the three workers suggested that there had been other, arguably more serious, incidents which had not been met with the same zero-tolerance approach to safety. I accept there was not any independent evidence of these incidents during these proceedings, but I was satisfied that each of the Applicant's witnesses were credible and honest and therefore see no reason not to accept their testimony. In respect of one such incident, Ms Coran said it had never been directly reported to her. However, Mr Richardson's evidence was that it need not have been reported because it was blatantly obvious to anyone on site that day, including Ms Coran.

[159] A balanced, objective and realistic evaluation of all the evidence relating to the incident and the Applicant's long, largely unblemished history, does not support the Respondent's conclusion that the Applicant's safety breach was of such gravity and significance so as to justify his dismissal. In making the decision to terminate the Applicant's employment, particularly given his personal circumstances, the Respondent acted disproportionately to the gravity of the Applicant's breach thus rendering the dismissal harsh, unjust and unreasonable.

[160] Therefore, for the reasons given above, I am satisfied that the Applicant has been unfairly dismissed. I turn now to remedy.

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

[162] Section 390 of the Act provides that:

"390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies."

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

(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(b) the period of the person's continuous service with the employer, or (if subsection (1A) applies) the associated entity.

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

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

At a glance

Court

Decision date

Source

Judgment (253 paragraphs)

Michael Rainbow v Queensland Rail T/A Queensland Rail [2022] FWC 589 (16 March 2022)

Parties

Legislation Cited (1)

Cases Cited (4)