1 Fair Work Act 2009 s.394—Unfair dismissal Luke Bowen v Queensland Rail Transit Authority (U2025/13165) DEPUTY PRESIDENT O’KEEFFE PERTH, 19 MARCH 2026 Application for an unfair dismissal remedy - Applicant unfairly dismissed – reinstatement not appropriate – parties to provide submissions on remedy. [1] On 12 August 2025, Mr Luke Bowen (the Applicant) made an application to the Fair Work Commission (FWC) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with the Queensland Rail Transit Authority (the Respondent). Background [2] The Applicant had been an employee of the Respondent since 17 October 2022 and was engaged at the time of dismissal as a Tutor Driver. In this position he was responsible for training new drivers but performed standard driving duties when not engaged in such training. [3] It is not in dispute that in February 2023 the Applicant was charged by the Queensland Police Service (QPS) with common assault following an incident at a tavern. On 17 August 2023 the Applicant was again charged by QPS, this time for breach of bail conditions that had been set in relation to the February charge. Finally, the Applicant was charged by the QPS for possession of dangerous drugs following a search of his home which took place on 17 August 2023. [4] On 9 October 2023, the Applicant disclosed to the Respondent the existence and broad details of the charges that had been laid against him. As part of this disclosure, he advised the Respondent that it was his intention to fight those charges1. As a consequence, the Applicant was stood down from duties and then reinstated with a requirement to participate in a Health Improvement Plan which involved regular alcohol and drug testing. [5] On 20 May 2025 the Applicant appeared before the Magistrates Court before Magistrate McInnes and enter a guilty plea to both common assault and breach of bail. The Applicant was convicted on both counts and sentenced to 120 hours of community service with a condition that he must not commit another offence within 12 months. [2026] FWC 898 DECISION [2026] FWC 898 2 [6] On 2 June 2025 the Applicant appeared before the Supreme Court of Queensland (the SCQ) with Justice Crow presiding. The Applicant entered a plea of guilty to the offence of possessing a schedule one dangerous drug – in this instance cocaine - in excess of two grams. His Honour found in the circumstances that the quantity of drugs found was not a commercial possession and that the cocaine was for personal use. In sentencing, His Honour noted that while the offence warranted a three-year custodial sentence, he considered the Applicant’s private efforts at rehabilitation and prospects to be such that a custodial sentence was not appropriate and instead placed the Applicant on parole. [7] Following the outcomes of the court proceedings, the Respondent stood the Applicant down on 6 June 2025 pending an investigation into his convictions. On 12 June 2025 the Applicant attended an interview with the Respondent called to gather further information regarding the convictions and to advise him of the allegations the Respondent was making against him. On 19 June 2025 the Applicant was advised that those allegations had been substantiated and asked to make a response, which he did on 30 June 2025. [8] The Respondent then wrote to the Applicant on 7 July 2025 asking him to show cause as to why his employment should not be terminated. The Applicant responded on 16 July 2025. The Respondent then terminated the Applicant’s employment on 25 July 2025. Permission to appear [9] The Applicant was represented by the Australian Rail Tram and Bus Industry Union (the RTBU). As the Applicant is a member of the RTBU and the RTBU is a registered organisation, then under s 596(4)(b)(i) of the Act leave to be represented was not required. [10] The Respondent was represented by Mr Michael Reeves. As Mr Reeves is an employee of QRTA, under s 596(4)(a) of the Act leave to be represented was not required. Has the Applicant been dismissed? [11] A threshold issue to determine is whether the Applicant has been dismissed from their employment. Section 386(1) of the Act provides that the Applicant has been dismissed if: (a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or (b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent. [12] There was no dispute and I find that the Applicant was an employee of the Respondent and his employment was terminated at the initiative of the Respondent. I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act. Jurisdiction [13] It was not contested that: [2026] FWC 898 3 a) The application was made within the 21-day period as required under s.394(2); and b) The Applicant is protected from unfair dismissal under section 382 of the Act in that he has greater than 6 months’ service and his employment was covered by the Queensland Rail Traincrew Enterprise Agreement 2024; and c) The Respondent is not a small business as defined in the Act; and d) The dismissal was not a case of genuine redundancy. I am thus satisfied that the FWC has jurisdiction to deal with the matter. Was the dismissal harsh, unjust or unreasonable? [14] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account: (a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that the FWC considers relevant. [15] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.2 [16] I set out my consideration of each below. Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct? [2026] FWC 898 4 [17] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”3 and should not be “capricious, fanciful, spiteful or prejudiced.”4 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.5 Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.6 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”7 Submissions and evidence [18] The Applicant submitted that there was no valid reason for the dismissal related to his capacity or conduct. His submissions set out the reasons for termination provided to him by the Respondent, which are as follows: 1. “That Luke Bowen, Tutor Driver having been convicted of offence(s) in the Criminal Courts, has failed to act to the standards required being to conduct themselves in an ethical manner in all that they do, having undertaken conduct incompatible with their duty as an employee. Noting further the leadership and safety role L Bowen holds as Tutor Driver which has the purpose of in addition to performing the duties of a Locomotive Driver is to also participate in the development of training programmes, provide practical tuition to Regional Traincrew and perform valid assessments of competency to ensure safe train operations. Such role requiring significant trust in them by both Leaders and Trainees. Being substantiated, this is in breach of Section 2 and / or 2.3.1 of the Code of Conduct. 2. That Luke Bowen, Tutor Driver by their being convicted on one or more of the following matters: • Common Assault, • Possessing dangerous drugs, • Breach of bail, has failed to promote public confidence in the integrity of the public sector which is committed to the highest ethical standards, and to honest, fair, and respectful engagement with the community. Being substantiated this is in breach of section 6 of the Public Sector Ethics Act 1994. 3. That Luke Bowen, Tutor Driver by appearing in the Bundaberg Magistrate and Rockhampton Supreme Court and that information being communicated independently to the Queensland Government and via the media, has brought Queensland Rail into disrepute, particularly in association with Queensland Rail’s status as White Ribbon accredited, and/or being a safe place to work. Being substantiated, this constitutes significant damage to the relationship between the employee and Queensland Rail.”8 [2026] FWC 898 5 [19] The Applicant submits that the reference in part one above to section 2 of the Code of Conduct (the Code) lacks specificity and should be ignored. With respect to section 2.3.1 of the Code, the Applicant says that notwithstanding the media articles referenced by the Respondent, nothing he has done has brought the Respondent into disrepute or repudiated his employment contract. The Applicant submits in support of this that he acted to ensure that the Respondent was not named as his employer in any of his court proceedings. [20] He further submits that such connection as could be made between himself and the Respondent was via what he refers to as a “digital artefact”, being his deleted “LinkedIn” profile. The Applicant says that the FWC cannot be satisfied that his conduct outside of the workplace has done anything to harm the Respondent’s reputation. He submits that the media articles relied upon by the Respondent do not mention the name of his employer, nor do the decisions of the judge and magistrate. The Applicant also proposes that if the Respondent took serious issue with his conduct it was open to it to investigate that conduct when it was first raised and decide at that time if it constituted a breach of its policies. [21] In his reply submissions the Applicant challenges the notion, proposed by the Respondent, that the nexus between himself and the Respondent can be established by a Google search. The Applicant submits that this is dependent on a user’s particular browser settings. Further, he submits that the media who reported on the story could have made the connection and published it, but they failed to do so. [22] The Applicant suggests that it could also have stood him down while awaiting the outcome as he alleges has been done with other employees, rather than allowing him to continue working. He submits that the Respondent’s decision to take such a course of action calls into question the true seriousness the Respondent attributed to his conduct. The Applicant also notes the position taken by the SCQ whereby the punishment for the drug possession was minimal based on an assessment of the likelihood of reoffending and his general prospects given his employment situation. [23] The Applicant submits that his dismissal was predicated on reputational damage that never actually arose and therefore lacked a valid reason. In the alternative, the applicant says that the decision was disproportionate to the actual conduct. Again noting the views of the courts – both of which declined to order custodial sentences – the Applicant says that the Respondent’s “misplaced concern about reputational damage”9 has caused it to apply a penalty that was not appropriate in circumstances where the courts had already imposed fairly limited penalties that those courts regarded as appropriate in the circumstances. [24] The Applicant further submitted that the actions for which he was terminated occurred outside of the workplace. As such, he drew upon the decision of the then Australian Industrial Relations Commission in Rose v Telstra Corporation Ltd (Rose). In that case, Vice President (as he then was) Ross noted as follows: “It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited: * the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or * the conduct damages the employer's interests; or [2026] FWC 898 6 * the conduct is incompatible with the employee's duty as an employee.”10 [25] In connection with this notion, the Applicant also drew upon the findings of the High Court in Blyth Chemicals v Bushnell (Blyth), where Dixon J and McTiernan JJ stated as follows: “Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal…But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.”11 [26] The Applicant also submits that his vulnerable mental state, which was acknowledged by the courts, provided some mitigation for his delay in informing the Respondent of the charges against him. He notes that he did make the decision to inform the Respondent of his charges and did so after he had some time in rehabilitation and having had the benefit of some legal advice. He also submits that his progress in addressing his personal issues is positive. As noted by Justice Crow in his sentencing decision for the cocaine possession charge: “You began to abuse alcohol and cocaine at the time of your marriage breakdown in 2019. And I suppose I should add that the – your fairly minor criminal history is before me, but you – the turn to the [indistinct] drugs occurred at the breakdown of your marriage. About a month after you were found with this drug, you took yourself to the Ramsay private clinic, and you spent a month in there for alcohol and intoxication. Discharged 9 October ’23. Came out with a diagnosis of major depressive disorder, alcohol-use disorder, substance-use disorder in remission. You did have a relapse, resorting to alcohol, precipitated by your difficulties in having access to your children, November ’23, and then you quite wisely went back to detox at the Calvary Private Hospital in the ACT for a further two-week period of detox. You had a diagnosis, in hospital notes, of anxiety, depression and alcohol dependence in partial remission. You have regularly attended upon the psychiatrist Dr Clark, and I have his report with me. He is very happy with your progress. You have an excellent work history. You have taken significant steps with respect to rehabilitation. You have provided numerous drug tests showing you are drug-free, and I accept, also, that you are regularly drug tested at your employment – or from time to time, I should say, and you continue driving trains.”12 [27] In his reply submissions, the Applicant takes issue with the Respondent’s concerns about him having previously attended for work under the influence of drugs and performed his duties in an impaired state. The Applicant notes that the Respondent has a regime whereby its employees are tested for drugs and alcohol and that he had never returned a positive result to such testing. Further, when he returned to work after his first stand-down he was subjected to a more rigorous testing regime and again returned only negative results. In addition, the Applicant notes that of his own volition he paid for and attended two rehabilitation programs to assist him in ensuring he did not abuse alcohol or other drugs. [2026] FWC 898 7 [28] The Applicant submits that given his rehabilitation programs and the positive results as acknowledged by his treating medical practitioners, that he is of no greater risk of attending for work impaired by drugs or alcohol than any other employee who may have had or is having issues with such substances. However, in his case the issue is acknowledged, and the Respondent is therefore able to take suitable steps to monitor his condition. [29] The Respondent submits that it has a valid reason for termination. It says that the valid reason can be found either jointly or individually in the following: (a) “the Applicant committing the three crimes (collectively, or in the possession of dangerous drugs alone), and engaging in that conduct has a sufficient connection to his employment (i.e. the three allegations put to the Applicant); (b) the Applicant’s delay in reporting the three charges to the Respondent; and (c) the Applicant’s lack of transparency, honesty and integrity…”13 [30] With respect to the first of the matters set out above, the Respondent says that the actions taken by the Applicant outside of work were nonetheless reason for dismissal in that, as per Rose: (a) “the conduct was likely to cause serious damage to the employment relationship; and (b) the conduct damaged the Respondent’s interests; and (c) the conduct was incompatible with the Applicant’s duties as an employee.”14 [31] The Respondent notes that consistent with the findings in Rose, only one of the above three conditions needs to be met. With respect to these issues, the Respondent says that the Applicant’s actions have ended the necessary element of trust and confidence required to maintain the employment relationship. While the Respondent concedes that it did continue the employment relationship during the period leading up to his court appearances, it submits that: “(u)pon the convictions being entered, the damage to the employment relationship crystallised.”15 [32] The Respondent says that the Applicant’s crimes were of legitimate concern to it for six reasons: 1. The Applicant’s crimes were “incredibly serious” and included a sentence of three years’ imprisonment. 2. That the Applicant committed the crimes demonstrates that there is a real risk that he would not be fit for work and able to perform his duties safely and appropriately. 3. The Applicants criminal charges have broken the trust and confidence of the Respondent given his lack of judgment in committing the actions that resulted in his convictions. 4. As a Queensland public official, the Applicant was required to promote public confidence in the integrity of the public sector. 5. The Applicant held a tutoring role and such role involved significant trust in the Applicant to be held by others such as leaders and trainees. [2026] FWC 898 8 6. The Applicant had damaged the Respondent’s reputation by virtue of: a. The matter being published in the media such that it was likely the public would perceive the Applicant to be an employee of the Respondent b. A complaint being lodged with the relevant Minister’s office about the Applicant c. The Applicant’s convictions being the subject of general discussions throughout elements of the workforce. [33] The Respondent further submitted that given the Applicant had conceded that the media articles had harmed his reputation, he should also concede that they had harmed the Respondent. [34] The Respondent also addressed what is perceived as the delay in reporting the charges and the lack of honesty and transparency. It characterised the delay in reporting the charges as “significant” and inconsistent with the Code. It noted that relevant section of the Code – being 2.6.1 - states in part as follows: “In addition, our people must comply with legislative and/or policy obligations to report employee criminal charges and any convictions that may impact on their ability to perform their role.”16 [35] The Respondent notes that the charge for common assault was laid on 11 February 2023 and the charges for breaching bail and possession of drugs laid on 17 August 2023. Notwithstanding this, the Applicant did not divulge those charges to the Respondent until 9 October 2023. The Respondent’s submissions reject the Applicant’s argument that he was receiving medical and legal advice as not supported by evidence and also occurring during a period where he continued to attend for work driving trains. The Respondent submits that by his own admission the Applicant was, during this time, “in a vulnerable state”17 and at the time of the actual offending was “suffering significant impairments”18. [36] The Respondent also draws attention to the Applicant’s statement to the effect that he had removed himself from work from the moment he was charged with drug possession and thus not lying about that possession or putting people at risk.19 It notes that this statement was incorrect in that the Applicant did in fact attend work immediately after being found in possession of drugs and when according to his submissions to the Police and QSC he was using cocaine heavily and drug dependent. Further, the Respondent submits that the Applicant had – during the disciplinary process – lied about his prior criminal history by seeking to downplay offences that were in fact quite serious. [37] The Respondent also draws attention to what it says are further instances of dishonesty by the Applicant. The first is regarding what he had – or had not – disclosed regarding his criminal history when he first obtained employment with the Respondent. The Applicant claimed during the Respondent’s investigation to have ticked a box indicating he did have criminal convictions when in fact no such box existed. [38] The second involved what he had told the Respondent about his intentions with the charges for common assault, breach of bail and drug possession. The Respondent submitted that the Applicant had said that he was intending to fight the charges leading the Respondent to [2026] FWC 898 9 conclude that he intended to plead not guilty. However, he had then attended both courts and entered a guilty plea. [39] The third issue involved what the Respondent perceives to be an issue regarding the instructions given to the Applicant’s lawyers in the drug possession case. The Respondent notes that the Applicant’s lawyers told the SCQ that he was drug dependent, which the Respondent claims was not consistent with other statements he had made about the nature of his drug use. The Respondent also notes that the Applicant himself admitted to it that the submission about drug dependence was essentially a tactic by his lawyers to avoid a lengthy jail sentence. [40] The Respondent submitted that given the above, the FWC should find that the Applicant was not honest with it during the investigation process and reject the Applicant’s submissions to the effect that he was. [41] The parties provided their closing submissions in writing. In his submissions, the Applicant rejected the Respondent’s reliance on Rose. He submitted that the Respondent had failed to prove any reputational damage, with its witness Mr Galea conceding that such reputational damage as was to be found was limited to internal gossip and one anonymous email rather than complaints from persons or organisations external to the Respondent. [42] The Applicant also rejected any connection being made between the Applicant and the Respondent in the media, noting the Respondent’s admission that it was not specifically named in any media articles. The Applicant also submits that there was no evidence of any impairment at work or conduct that involved the use of the Respondent’s property or uniform. [43] The Applicant also relies on the principle from Selvechandran v Peteron Plastics Pty Ltd which is found at [17] above that a reason for dismissal must be “sound, defensible or well- founded.” He argues that in this case that principle has been ignored by virtue of the Respondent ignoring objective medical evidence in favour of what he calls “subjective fear” in the form of Mr Cornish’s “feeling ill” at the prospect of him driving trains under the influence of drugs. I note that by medical evidence the Applicant is referring to being cleared for work by the Respondent’s Chief Medical Officer and having successfully completed the Health Improvement Plan. [44] The Applicant further submits that the policies relied upon by the Respondent were ambiguous. He notes that the Code at the relevant time only required an employee to report to the Respondent charges that “may impact” their employment, with such wording providing a level of discretion to the employee. He further notes that the Code has now been amended to remove that discretion by requiring all charges to be reported. In his case he says that he sought legal advice on this issue and determined that private, off-duty matters did not impact his employment. [45] The Applicant also submits that claims he was dishonest by not revealing his prior criminal history at the point of employment are ill-conceived. He notes that there was in fact no requirement by the Respondent that he do so but his recollection on being asked during the investigation was that it was normal to be asked such a question and that he always answered [2026] FWC 898 10 yes when asked. As such, he assumed he had done so and gave his answer accordingly. The Applicant says that this is simply lack of recall rather than deliberate deception. [46] To the extent that the Respondent has relied upon the submission made in the SCQ that he was drug dependent, the Applicant submits it was wrong for it to do so. He submits that this was a plea made by his lawyers to mitigate sentencing and that in any case the SCQ found that he was not drug dependent. [47] The Applicant further submits that to the extent that his reputation with the Respondent was further damaged by suggestions that he owned a firearm it was unfair to do so. He notes that there was no firearm found during the police search and that the suggestion itself came from an anonymous email. [48] The Applicant submits that even if there was a valid reason for his dismissal, it was nonetheless harsh. He notes that it was conceded that there were potential alternatives to dismissal, such as demotion to a role such as Station Attendant, that were open to the Respondent. Further, the Respondent’s own disciplinary process allowed for such an option. The Applicant submits that failure to give proper consideration to this alternative contributes to the harshness of the dismissal. Further, the impact of the decision is to “softly lock” the Applicant out of the rail industry in Queensland, amounting to an effect akin to a restraint of trade that also contributes to the harshness. [49] The Applicant further submitted, citing the matter of Mr Graham Parsons, that the Respondent had provided inconsistent treatment in his matter. He claimed Mr Parsons had been public named for serious drug offences but had been retained in employment for a period. [50] The Applicant also cites the finding of the Full Bench in Sydney Trains v Hilder20. I have shown below the citation provided by the Applicant but I note that neither [26] of that decision nor any other paragraph I can find contains the quotation attributed by the Applicant. Further, the quotation provided refers to the applicant in that case being employed by Sydney Trains for nine years, whereas in [11] of the decision it is made clear that Mr Hilder had six years of employment. As such, I am uncertain as to the origin of the quote provided by the Applicant. However, I note that it proposes that the FWC should look to an applicant’s length of service and that a long period of service with a good record is a relevant factor in considering harshness. In that vein, the Applicant suggests that his eighteen years of service in the industry without safety or disciplinary issues should be part of the FWC’s consideration. [51] In its closing submissions, the Respondent noted its serious concern that: a. “the Applicant might have been driving trains while under the influence; b. the Respondent had no opportunity to risk-assess him because he concealed the facts; c. the public would lose confidence if the Respondent knowingly retained such an employee.”21 [52] The Respondent submits that the Applicant was under an obligation to report to it charges such as the cocaine possession charge. Notwithstanding this, the Applicant did not report this charge until several weeks after it was laid, and this delay included a period where [2026] FWC 898 11 he continued to drive passenger trains. The Respondent also takes the view that the Applicant’s proposition that he did not have to report his charges because he did not think they would impact his employment is implausible given that those charges could have led to a custodial sentence. It also notes that at a certain point he did in any case report the charges which questions why he did so if he believed there was no need. [53] The Respondent also submits that the Applicant was evasive in his answers as to why he had originally told it he would fight the charges. The Respondent argues that the Applicant’s proposition that “fight” was a poor choice of words and that “defend” was more accurate is implausible, particularly given his admissions to the QPS at the time of the search of his home. [54] The Respondent further takes issue with the responses given by the Applicant and found at PN212 – PN216 of the transcript. The Respondent says that the Applicant is seeking to distance himself from the statement in the email found on page 671 of the Court Book with respect to the quantity of his drug use. The Respondent says that the statement is drawn directly from the report created from the Applicant’s sessions at the Evexia Alcohol and Other Drugs Assessment and so should be taken as accurate. The Applicant’s attempts to characterise the statement as “Chinese whispers” is submitted by the Respondent to be a case of being untruthful in the witness stand. [55] The Respondent also takes issue with the Applicant’s responses given at PN144 – PN147 where he is questioned regarding his cocaine use. The Respondent says that notwithstanding his statement to the SCQ that his cocaine use was habitual, the Applicant attempted to reject that he was a habitual user in the FWC, being an example of shifting position according to “audience and advantage”. [56] The Respondent submits that the Applicant has also been inconsistent with his statements about whether he was drug-dependent.22 It submits that he attempted to walk away from this at the FWC by claiming that it was a plea made by his lawyers at the QSC without his prior knowledge and made to mitigate sentencing. The Respondent submits that the Applicant has therefore either misled it or the QSC regarding the true nature of his dependency which undermines his credibility. [57] The Respondent also raises credibility issues with the Applicant’s position on the tick box for prior convictions which he claimed to have ticked during recruitment but in fact did not exist, and also with his downplaying at the investigation of his New South Wales convictions. He had described them as “youthful stuff” and “nudie runs” whereas they included such things as destruction of property, contravening an apprehended violence order and stalking. [58] With respect to the issue of reputational damage, the Respondent says that it is irrelevant that the media did not name it specifically. It claimed – given its status as the only operator of long-distance passenger trains in Bundaberg – that the public would infer that the Applicant drove for the Respondent and that its evidence to that effect was unchallenged. It further submits that the Applicant’s attempt to have the FWC issue a restriction on publication of details of this case indicated that the Applicant accepts that reputational damage was a risk if details were published and picked up by the media. [2026] FWC 898 12 [59] In summarising its valid reason for dismissal, the Respondent firstly noted that the Applicant had demonstrated – both at the FWC and elsewhere – that he lacked candour and had behaved dishonestly in respect of this matter. It notes that the Applicant delayed reporting his charges – which it says is in breach of the Code - and then attempted to mislead it about immediately removing himself from work when the charges were laid. The Respondent also says that the Applicant did not disclose what it said was his “habitual” drug use during the period of his employment prior to his October 2023 admission despite it being a requirement of its Alcohol and Other Drugs Policy. The Respondent submits that this is a serious breach of trust and confidence. [60] The Respondent also notes its submissions on damage to its reputation, submitting that its concerns in this respect are genuine and based on a reasonable assumption of what people in Queensland would assume. Finally, it notes that the issues regarding the Applicant’s previous convictions in New South Wales and the veracity of his statement about fighting the charges may have only come to light post-dismissal but are nonetheless relevant in assessing valid reasons for termination. [61] The Applicant gave evidence on his own behalf and was cross-examined on that evidence. While I have read his witness statement and reviewed the transcript, it is not my intention to canvass in detail all of the evidence given by the Applicant. Rather, I provide a summary as follows: 1. The Applicant admits the common assault, the breach of his bail conditions and the cocaine possession. 2. The Applicant admits he attended for work immediately after being charged with cocaine possession but says he had not consumed cocaine in the days prior and knew he was fit for duty. 3. During the time immediately after his cocaine charge, he was seeking access to a rehabilitation facility via his General Practitioner. Once he gained access, he advised the Respondent he would be off on long term sick leave. 4. During his time in the rehabilitation centre, he sought legal advice regarding his situation, including his employment. As a result of this advice, he told the Respondent about his QPS charges. 5. Once his treating psychiatrist cleared him to return to work, he advised the Respondent accordingly and it advised him he needed to go through a medical assessment before he could return. 6. As a result of not seeing his children at Christmas, the Applicant relapsed into alcohol use but again checked himself into rehabilitation. 7. In January 2025 the Applicant was cleared by the Respondent’s Chief Medical officer to return to work in February 2025 which he did. 8. The Applicant entered guilty pleas in both the Magistrate’s Court in May 2025 and the SCQ in June 2025. 9. He then went through the disciplinary process as set out in [7]-[8] above which culminated in his termination. [62] In terms of issues with the Applicant’s evidence that arose during cross examination, I note as follows: [2026] FWC 898 13 1. He conceded that he was aware of the requirement to be under the prescribed limit for drugs and alcohol when at work. 2. He conceded that trust was important feature of his role. 3. He conceded that he had eight criminal convictions prior to commencing employment with the Respondent and that he downplayed the seriousness of those convictions during the Respondent’s investigation. 4. He explained that he had thought that he had ticked a box to indicate that he had prior convictions on the Respondent’s recruitment form because he had always admitted to having had them when seeking employment. 5. He admitted that the charges he faced were serious but believed that he had mitigating circumstances that would prevent a custodial sentence but that his legal advice – once procured – made him decide to report those charges nonetheless. 6. He admitted that he had told the Respondent that he would “fight” the charges notwithstanding that he knew he was guilty but claimed that perhaps he had used the wrong word and should have said “defend”. 7. He rejected the suggestion that his use of “fight” was a lie or an attempt to downplay the matter. 8. In response to my question, he clarified that the notion of defending the charges was to challenge the validity of the QPS search warrant and thus the finding of the cocaine by the Police. 9. He conceded that when he told Mr Galea that he had removed himself from work immediately after the cocaine possession charge this was not correct but claimed it was an error of memory from a time when he was very stressed. 10. He distinguished the reporting of the cocaine charge – which he did after taking legal advice – with the common assault charge, which he took to be a low-end charge and not likely to lead to a custodial sentence and thus impact his employment. 11. He tried to claim that his drug use was binge-like rather than habitual but conceded when pressed that his own statement23 said that he had been a habitual user. 12. He prevaricated over the issue of what advice he gave to AVEXIA about the frequency and volume of his drug use. 13. He conceded that he relied on home saliva tests to ensure he was not above the limit for cocaine metabolites when he attended work. 14. He claimed that the plea of being drug-dependent was entered by his lawyers without his prior knowledge and for the purpose of mitigating sentencing. Nevertheless, he noted that the QSC was satisfied that he was not drug-dependent and this was reflected in their sentencing. [63] Evidence for the Respondent was provided by Mr Scott Cornish, the Head of Regional Rail for the Respondent and Mr Adrian Galea, the Respondent’s Manager of Ethics and Investigations in its Employee Relations team. As with the applicant, I intend to summarise the evidence provided rather than set it out in detail. [64] Mr Cornish gave evidence as follows: 1. The Applicant was in a safety-critical role which was rated at the highest safety level by the relevant legislation. 2. He was aware that the Applicant was facing some charges – although he did not know the details – but understood that the Respondent had made a risk-based [2026] FWC 898 14 decision to return the Applicant to work albeit with more rigorous drug and alcohol testing. He regarded that level of testing as being unsustainable in the long term. 3. He was presented with a report by Mr Galea essentially recommending that the Applicant show cause as to why he should not be terminated. 4. Having digested the details of the Applicant’s drug use, he was very concerned about the possibility of the Applicant having driven trains under the influence of drugs. 5. When deciding on what action to take with the Applicant, he had considered the report, the Applicant’s responses and a letter of support for the Applicant prepared by the President of the RTBU. 6. He was concerned by the common assault charge and worried about possible re- offending and the risk to co-workers and the travelling public. 7. He was concerned about the drug possession charge and the previous use by the Applicant and the risk of relapses. 8. He had concerns about the Applicant’s integrity based on his claims of not returning tom the workplace after the cocaine charge and the plea of drug dependency. 9. He was aware that an – unidentified – third party had advised the relevant Minister’s office of the charges and that the Respondent had been approached by the media about the Applicant. 10. He claimed that a Google search performed with “Queensland Rail” alongside the Applicant’s name provided access to articles about the cocaine possession. 11. He claimed that employees of Queensland public agencies are held to higher standards than other employees and that the Applicant had breached these standards and the expectations in the Code of Conduct. 12. The delay in dealing with the matter was due to the delay in the courts and the concerns with the Applicant’s integrity and honesty arose through that process. 13. He was subsequently sent a recommendation to terminate and having reviewed the matter formed the view that termination was an appropriate outcome and that other outcomes such as demotion were not appropriate. 14. He regarded the relationship of trust and confidence between the Applicant and the Respondent as irreparably damaged. 15. He believed that the Applicant had not been subjected to any random drug tests by the Respondent – despite its systems - in the period prior to the Applicant’s offending. 16. His view of the Applicant’s prior drug use was that it seemed to coincide with difficult periods in the Applicant’s life, which reinforced his concerns about relapses. [65] With respect to issues that arose during cross-examination of Mr Cornish, I note as follows: 1. He conceded that the Respondent held no evidence that the Applicant had driven a train under the influence of drugs. 2. He further conceded that the Respondent had cleared the Applicant to return to duty and closed the Applicant’s health improvement plan in December 2024 and had not sought any independent advice about any risk posed by the Applicant. 3. He conceded that the Applicant had met all of the Respondent’s requirements imposed because of his charges and there were no instances of non-compliance. [2026] FWC 898 15 4. He conceded that the media articles about the Applicant had not specifically named the Respondent. 5. He conceded that the media who contacted the Respondent about the Applicant were seeking to establish if the Applicant worked for the Respondent. 6. He conceded that part of the reason for termination was a view that it was an available inference that the Applicant worked for the Respondent. 7. He rejected the notion that there were no complaints that would indicate reputational damage by referring to an anonymous email sent to the Minister. 8. He agreed that he had relied on the Public Sector Ethics Act and the Code but conceded that those documents did not mandate termination and contemplated a range of disciplinary actions. 9. He further agreed that he had not made any systematic analysis of the alternative disciplinary actions. 10. He did not concede that the Applicant claiming he had ticked a non-existent box about criminal history was a misunderstanding but took the view that it was deception. 11. He conceded he was aware of the Graham Parsons matter as set out in [49] above but did not regard it as precedent. Further, he noted that other employees had been dismissed for a range of issues but that the present matter had specific characteristics of its own that made it unique. 12. He conceded that although he had fears of relapses, no psychiatric opinion regarding that possibility had been sought or obtained. 13. He did not concede when questioned that his dismissal decision was based on inference, gossip and a fear of undetected impairment. 14. In re-examination he gave evidence that the Respondent is the only passenger train operator in rural Queensland and it was his opinion that it was highly likely the public would associate the Applicant with the Respondent. 15. He also gave evidence that he understood that the Respondent’s health management advisors who created the Applicant’s health improvement plan did not have all of the information that was before the FWC with respect to such issues as the volume of drug use. [66] Mr Galea gave evidence as follows: 1. He had reviewed the Respondent’s records pertaining to the Applicant and notes that the Applicant had regular training about the Code during his employment. 2. He was involved in discussions regarding the Applicant returning to work after declaring his charges. Given the matters were only at the stage of being charges and given the Applicant’s claim that he would fight those charges, the Respondent decided to implement a health management plan and await the outcome of the court processes. 3. He notes that the Applicant took no significant leave after being charged with common assault but after the drugs charge took leave from 17 August 2023 with the exception of two periods where he attended the workplace and performed duties. Those periods were 26 August 2023 to 10 September 2023 and 12 and 13 September 2023. Mr Galea’s evidence contains details of the work performed in these periods and it appears that on six of the days he was driving trains. [2026] FWC 898 16 4. He says that in August 2024 the Respondent received an email via the relevant Minister from an anonymous source - claiming to be employees engaged with the Applicant – who outlined the three charges against the Applicant and claimed the Applicant boasted at work about his criminal history in New South Wales. The anonymous author(s) expressed concerns about the Applicant being employed by the Respondent in his position as Tutor Driver. 5. He says that on 5 June 2025 the Respondent received an email from a journalist noting the sentencing for cocaine possession and asking if the Applicant was employed by the Respondent. 6. Mr Galea then outlines the disciplinary process he used with the Applicant. 7. He states that as part of that process he asked the Applicant about his previous convictions and was left with the impression that they were minor issues from his youth. 8. He confirmed that the Applicant had told him that he ticked a box to indicate previous convictions during his recruitment but that on checking he had found that no such box existed on the relevant form. 9. He confirmed that having checked the Respondent’s records, the Applicant had not been tested for drugs and alcohol during 2023. 10. In response to the Applicant’s evidence, he notes that the statement made by the Applicant that in practice employees of the Respondent have not been terminated for breaches of the same policies is not correct. 11. He states that the Applicant’s case was decided on its own particular facts. [67] With respect to issues that arose during cross-examination of Mr Galea, I note as follows: 1. He confirmed the Applicant had been cleared for duty by the Respondent’s Chief Medical Officer. 2. He did not concede that the Respondent trusted the Applicant because it did not exclude him from the workplace after he declared the charges. Rather, he noted that the Respondent was following a process and reviewing the progress of the court matters. 3. He confirmed his view that although the Respondent was not named in the media, the logical inference was that the Applicant was an employee of the Respondent. 4. He attempted to distinguish between “reputational damage” and “reputation”, suggesting that he had been motivated by the latter rather than the former. 5. He agreed that he had considered the anonymous email (see [66] at point 4) in assessing the Applicant’s situation but only accepted after some prompting the proposition that the email could have been sent by anyone. 6. He did not accept that the email contained false allegations – such as possession of a firearm – but rather suggested it contained certain items that should have been considered. 7. He conceded that the Respondent had not sought to access the court transcripts as part of its investigation but attributed this to his perception that it would be difficult to procure such transcripts. 8. He conceded that in making his recommendation for dismissal he had not documented any analysis of options less severe than dismissal and conceded that dismissal was his first and only recommendation. [2026] FWC 898 17 9. He conceded that the Respondent had not provided any examples of other cases similar to the Applicant where it had made similar decisions. 10. He conceded that other than the anonymous email and the media query, there had been no other issues raised with the Respondent about the Applicant. 11. He was circumspect on the issue of reputational damage and did not concede that the Respondent’s position was based on perception rather than evidence. 12. He conceded that his position was that the Applicant was in breach of s.2.6.1 of the Code (see [34] above). 13. He confirmed that the Code had been updated and as part of that update it had changed the way it deals with criminal charges. However, he regarded the change as not being material and only confirming and clarifying existing arrangements. Nonetheless, he did concede that the discretionary element of reporting criminal charges had been removed. 14. He rejected that the decision to dismiss the Applicant was based on fear and perception. Consideration [68] In this matter, it appears that the Respondent has shifted ground somewhat in terms of the reasons for termination. I make that observation on the basis of what appears in the letter of termination, and what appears in its various submissions. In my view, it is appropriate that I nonetheless consider all of those reasons as in doing so I will be able to make a proper assessment of whether there was a valid reason for termination. If there are reasons relied upon by the Respondent that were not put to the Applicant at the time of dismissal, then this is an issue for consideration under ss.387(b) and (c). I will start by examining the reasons for termination put to the Applicant in his termination letter, which can be found at [18] above. The termination letter [69] In the first instance, the Respondent relies on the convictions themselves establishing that the Applicant has not met what it says is the requirement to conduct himself in an ethical manner in all that he does. It claims that he had engaged in conduct incompatible with his duty as an employee and cites “Section 2 and / or 2.3.1” of the Code. This is a somewhat broad statement given that Section 2 of the Code runs to five pages and deals with issues – for example use of resources – that would not appear to apply to the situation under consideration. I also note that the Applicant submits that this is the case and so the reference should be ignored. [70] However, I have determined that for completeness I should consider the issue and so I have examined the Code and concluded that at the time of the Applicant’s dismissal, the parts of those sections that could be said to be potentially relevant to the Applicant’s convictions are as follows: “Our people should conduct themselves in an ethical, professional and honest manner in all that they do.”24 “Our people will be fit for work by…complying with Queensland Rail’s Fatigue Management and Fitness for Work Alcohol and Other Drugs Management Standards…”25 [2026] FWC 898 18 “Our people will advise their leader if they…are unfit for work…”26 “Our people will…ensure that their personal behaviour does not reflect badly on Queensland Rail…”27 [71] The first of these requirements is an interesting proposition given the use of “all that they do”. This may be a laudable aspiration, but what is its practical limit in the employment law sense? While it is clear that the Respondent should have the right to insist on these types of behaviours in the workplace, I do not accept that it could seek to enforce them outside of the workplace other than in circumstances where it meets one of the three criteria set out in Rose shown at [24] above. Put another way, to the extent that an employee of the Respondent acted in a manner that was – for example – unethical, then unless that caused some objectively serious damage to the employment relationship, damaged the Respondent’s interests or was incompatible with their duties as an employee, then in my view it would not be any business of the Respondent. I say this notwithstanding the Code. Employers may seek to implement all sorts of controls over their employees via policy, but it falls to the FWC to decide the practical limits of those policies. [72] Given this, I am inclined to focus more on the criteria in Rose – which I will do below - rather than this particular wording in the Code. The next issue is complying with the Fitness for Work policy. The Applicant claimed that he used drug testing kits he purchased in a retail outlet to confirm he was not in breach of the policy before he attended for work. This evidence was not seriously challenged. Further, he was never found to be in breach of the policy by virtue of returning a non-negative test. I accept the Respondent’s evidence that the Applicant was not subjected to any tests during 2023. However, given that the testing regime is described as “random” – although presumably it can extend to “for cause” – there is no apparent reason other than perhaps luck that he was not so tested. [73] It is true, based on his own admissions to the QSC and elsewhere that in 2023 the Applicant was using cocaine. However, suspicions aside, there is no evidence to suggest that he ever attended for work in such a state as to be in breach of the policy. He may well have done so, but I cannot be satisfied to a Briginshaw28 standard – which I find is the appropriate standard in a matter such as this - that this is the case given such evidence as is before me. On this same basis I cannot find that the Applicant is in breach of the third of the issues above with respect to reporting that he was unfit for work. [74] The final issue is personal behaviour reflecting badly on the Respondent. Again, I take the view that this can only be taken to include personal behaviour at work and personal behaviour outside of work where the conditions in Rose are met. In this case, I believe it is appropriate to deal with the issue of damage to the Respondent’s interests, which I regard as clearly contemplating – among other things - issues that impact an employer’s reputation. [75] As such, I find that it is necessary to grapple with the issue of whether the Respondent has suffered any negative impact to its reputation. While I note that Mr Galea (see [67] above at point 4) chose to cavil with the issue of damage, I find that it is unnecessary to delve too far into any distinctions that might be made. Put simply, did the Applicant’s convictions create any negative impact on the Respondent’s reputation. One might be tempted to adopt a pedantic [2026] FWC 898 19 approach and say that the convictions in and of themselves did nothing to the Respondent’s reputation. [76] However, it is appropriate to take a wider view and examine whether the subsequent attention paid to those convictions by the media and others can be said to have impacted the Respondent’s reputation. In the first instance, I note that I have conducted the experiment of googling “Queensland Rail” + “Luke Bowen”. Such media articles as can be found are all behind pay walls and so only summaries are available. In these summaries the Respondent is not specifically named. This seems to be consistent with the arguments put forward by the Applicant and not seriously challenged that the media did not name the Respondent. [77] I also note that the Respondent itself admits one approach from the media trying to determine if the Applicant was an employee. Clearly, this outlet at least was uncertain as to whether the Applicant worked for the Respondent. I can only assume that the Respondent has not received any negative feedback from the public as it produced no such evidence to the FWC. Given this, the best that the Respondent can do is infer that the public would associate the Applicant with it given its status as the only passenger train provider in the relevant region. [78] As such, I am left with supposition and inference. This of course could take many forms: for example, it might be supposed that some members of the public assumed the Applicant was an employee of the Respondent. How many of those people then extended this assumption to include a conclusion that the Respondent would have dismissed the Applicant accordingly? We can never know. Once again looking to Briginshaw I cannot be satisfied given the available evidence that there has been any measurable impact on the Respondent’s reputation by virtue of the Applicant’s convictions being published in the media in the manner that they were. [79] I will also address the anonymous email that was sent from the email address concernedtraincrew@gmail.com and signed by “Concerned Regional Traincrew”. Mr Galea conceded that it could have been sent by anyone albeit that he considered that it was probably genuine. My concern is that we cannot know. There is no evidence that the Respondent – which was in possession of the originating email address – sought to follow up the email by seeking further detail or outlining its process for making an official complaint or indeed engaging with the author(s) in any way. Nevertheless, Mr Galea conceded that the email featured in his consideration of the Applicant’s case. [80] I also note that the email was sent some months prior to the convictions and so it cannot be said that the convictions themselves created the concern. Rather, the concern appears to have arisen after the author(s) became aware that the Applicant had been charged. It is hard to escape the sense that the email was a complaint about the Applicant’s behaviours at work – as set out in the email – and could have been dealt with at the time by seeking to engage with the authors. [81] In summary, I do not find that the email is evidence of any appreciable negative impact on the Respondent’s reputation with its employees. The concern with the Applicant is – on the available evidence - limited to the author(s) of that document and the limits of their knowledge. Further, if the view is taken that the email was genuine then it can be safely assumed that the author(s) if still employed would now be aware of the dismissal of the Applicant by the Respondent. [2026] FWC 898 20 [82] The second matter in the termination letter was that the Applicant was in breach of s.6 of the Public Sector Ethics Act 1994 (the PSE Act) by failing to promote confidence in the integrity of the public sector. I note that s.6 of the PSE Act states as follows: “6 Integrity and impartiality In recognition that public office involves a public trust, public service agencies, public sector entities and public officials seek to promote public confidence in the integrity of the public sector and— (a) are committed to the highest ethical standards; and (b) accept and value their duty to provide advice which is objective, independent, apolitical and impartial; and (c) show respect towards all persons, including employees, clients and the general public; and (d) acknowledge the primacy of the public interest and undertake that any conflict of interest issue will be resolved or appropriately managed in favour of the public interest; and (e) are committed to honest, fair and respectful engagement with the community”. [83] I note further that s.6 is part of Division 2 – “The Ethics Values” of the PSE Act. Relevantly in my view, s.5 of the PSE Act states as follows with respect to those ethical values: “5 Nature, purpose and application of values (1) In recognition of the ethics principles, ethics values are to apply to public service agencies, public sector entities and public officials. (2) The values mentioned in division 2 are the "ethics values" for public service agencies, public sector entities and public officials. (3) The ethics values are intended to provide the basis for codes of conduct for public service agencies, public sector entities and public officials and are not of themselves legally enforceable.” [84] It is important to note that the ethics values – including those in s.6 – are not legally enforceable and are a basis for codes of conduct. Further, it should be noted that the ethics values are, as per point (1) above, made in recognition of the ethics principles. These are set out in s.4 of the PSE Act as follows: “4 Declaration of ethics principles (1) The ethics principles mentioned in subsection (2) are declared to be fundamental to good public administration. (2) The "ethics principles" are— • integrity and impartiality • promoting the public good • commitment to the system of government • accountability and transparency.” [2026] FWC 898 21 [85] I read this section to suggest that the ethics principles are declared to be fundamental to good public administration. The ethics values are drawn from these principles. They appear to me to be very clearly aimed at the actions of the Public Sector which are taken in the process of providing public administration. I find this to be particularly the case with the matters set out in s.6. I do not read them as suggesting that these principles – which are of course not legally enforceable - are required of public servants in all aspects of their lives. They are the basis for codes of conduct (see [83] point 3), and as discussed above, such codes of conduct cannot regulate every aspect of an employee’s life but are limited to the workplace and such activities outside of the workplace as may fall within the ambit identified in Rose. [86] Given this, I am not prepared to accord any additional weight to the requirements of the PSE Act above and beyond the Respondent’s own Code. I have already addressed the Code in [69] – [81] above and rely on those findings. [87] The third of the issues in the termination letter is related to bringing the Respondent into disrepute, with the Respondent specifically mentioning the media and the anonymous email which had been forwarded to the Respondent by the relevant Minister’s office. The issue as it is presented in the termination letter does not simply deal with the issue of reputational damage – being an issue already canvassed at [74] – [81] above. Instead, it submits that the bringing of the Respondent into disrepute has damaged the relationship between the Applicant and the Respondent. By relationship I take the Respondent to mean the relationship of trust and confidence which sits at the heart of the employment relationship. [88] As I found above, I am not satisfied that the Applicant has brought the Respondent into disrepute, or at least not in any significant way, based on the evidence before me. I found this to be the case both with respect to the public and the Respondent’s own employees. As such, to the extent that the proposition from the Respondent is as simple as “you brought us into disrepute and that action has damaged the relationship” then I would reject it on the basis that I do not accept that the Applicant can be said – on the available evidence – to have brought the Respondent into disrepute. [89] The submission is on the face of it that the Applicant has damaged the employment relationship by virtue of something the Respondent believes he has done, but on the available evidence he has not done. I cannot see how it would represent a fair outcome for such a belief to represent – or contribute to – a valid reason for termination. However, the Respondent does make an extension to this proposition in its submissions, and I will deal with that extension below. [90] Having dealt with the issues in the termination letter, I now turn to the matters raised in the Respondent’s submissions, which are found at [29] above. The first of these is as follows: (a) “the Applicant committing the three crimes (collectively, or in the possession of dangerous drugs alone), and engaging in that conduct has a sufficient connection to his employment (i.e. the three allegations put to the Applicant); The Convictions [91] The Respondent says in respect of those three criminal offences as follows: [2026] FWC 898 22 (a) “the conduct was likely to cause serious damage to the employment relationship; and (b) the conduct damaged the Respondent’s interests; and (c) the conduct was incompatible with the Applicant’s duties as an employee.”29 [92] Essentially what the Respondent is saying in this instance is that the Applicant being convicted of the crimes puts his conduct within all three categories found in Rose while noting correctly that only one – rather than all - of the categories needs to be found to be relevant to allow the conduct to be considered by the employer. In the first instance, and for the reasons I have set out above, I reject the notion of damage to the Respondent’s interests. I then turn to the issue of whether the conduct was likely to cause serious damage to the employment relationship, noting that as per Rose such assessment needs to be taken from an objective viewpoint. [93] This notion of out of work conduct causing damage to the relationship is explored in Rose with some explanation of its genesis. As noted in the case (citations removed): “The implied term of mutual trust and confidence imposes reciprocal duties on the employee and employer that they shall not `without reasonable and proper cause, conduct themselves in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee'. If conduct objectively considered is likely to cause serious damage to the relationship between employer and employee then a breach of the implied obligation may arise.”30 [94] In terms of causing serious damage to the relationship, the case of Wall v Westcott31 is cited. In that matter, Justice Watson found that an employee having an affair with his employer’s wife was an example of serious and willful misconduct that justified dismissal. However, it is important to note the comments of Vice President Ross (as His Honour then was) regarding this case: “It is important to recognise that the behaviour of the applicant in that case constituted serious and wilful misconduct not because the tribunal felt that it was immoral and warranted a penalty, but because it was `a serious and very much intended affront to an employer in a relatively small community'. On this basis the case clearly falls within the limited circumstances I have identified. The applicant's conduct was clearly likely to cause serious damage to the relationship between the employer and employee.”32 [95] In this matter, the Respondent has called out the actual crimes of the Applicant as meeting the test of damaging the employment relationship. As such, it is proper to consider the actual nature of those crimes. In the first instance, there is the conviction for common assault. In the Rose matter, an employee who was involved in an after-hours fight while out of his work uniform in a hotel was found to have been unfairly dismissed. I note particularly the following comment from His Honour: “…I do not accept that the applicant's conduct viewed objectively, was likely to cause serious damage to his relationship with his employer. [2026] FWC 898 23 [96] In the Rose matter His Honour considered a number of cases considering fighting, which are set out by the Full Bench in Sydney Trains v Bobrenitsky (Sydney Trains).33 Where terminations were upheld on those cases, it was mainly in situations where there was a direct connection to the employee’s employment, such as fighting in a crib-room out of working hours or threatening a member of management at a hotel. In the present matter, I cannot see how the particulars of the common assault could be in any way linked to the Applicant’s employment and I therefore reject the Respondent’s submissions about it impacting on the employment relationship. [97] In terms of damaging the Respondent’s interests, I cannot see that knowledge of the common assault charge went beyond the anonymous author(s) of the email to the Minister. The media material focused on the cocaine charge. As such, I do not think it can be said that this particular charge fell into that category. This leaves the final category of whether it is incompatible with his duties. I have resolved to deal with this concept in some detail with respect to the cocaine charge and do so below. Suffice to say at this point that I do not find that the common assault charge is one that enlivens this notion from Rose. [98] The second of the offences was a breach of bail conditions which arose through the Applicant contacting persons to seek details of the person upon whom he had committed the common assault. Again, I struggle to see the connection between this particular action and the Applicant’s employment and reject any suggestion that when viewed objectively it could be viewed as causing serious damage to the employment relationship. [99] As with the first charge, there is no suggestion that this charge was ever publicized and so I am satisfied that it did not damage the Respondent’s interests. In terms of whether it falls into the category of incompatible with the Applicant’s duties as an employee, again noting my main analysis is below, I am not satisfied that it does. [100] The third and most serious of the crimes was the possession of cocaine. Does being the crime of being found in possession of cocaine in and of itself represent something that is likely to cause serious damage to the employment relationship. According to an article in the Financial Review34 Australians are the biggest per-capita users of cocaine in the world. Drawing from the 2025 UN World Drug Report, it states that in 2023, some three percent of Australians aged 15 to 64 used cocaine. Put another way, the Respondent employs – according to its annual report – 8,000 employees. If they are to be regarded as typical Australian citizens then it would be something of a statistical anomaly if the Applicant was the only employee to use cocaine in 2023. [101] I am not suggesting that it is indeed the case that other of the Respondent’s employees use cocaine. However, the reality is that many people use illegal drugs in their private lives. Does being convicted of possession of such drugs and having the person’s employer find out about the conviction automatically mean that the employment relationship is damaged? I am not satisfied that this should be accepted as a general proposition. Rather, I suspect that the prism through which such convictions ought be viewed is the third of the criteria in Rose, being whether or not it is compatible with the person’s duties as an employee. [102] Drawing again from Rose and Sydney Trains, it is clear that the issue of convictions outside of work has been well-canvassed in the case law. From that case law it is clear that a [2026] FWC 898 24 conviction in and of itself does not provide grounds for dismissal. Looking specifically at the finding in HEF of Australia v Western Hospital I note that it was found that: “The conviction of an individual for a criminal offence does not necessarily have any effect upon that person’s employment. The question of the relevance of a conviction or an employee's alleged misbehaviour to the employee's work should be considered in terms of whether or not the employee has breached an express or implied term of his or her contract of employment. Whether events occurring outside the actual performance of work will be relevant to the employment relationship will vary from case to case. For example, an accountant who has committed an act of dishonesty (for which he may have been charged and convicted) in the course of some activity outside his employment might be said to have breached a term of his contract of employment.” 35 [103] Further commentary is found in the case of Hussein v Westpac Banking Corporation36 which involved an employee of Westpac committing credit card fraud on another bank. Given the employee’s particular position, it was found that the conviction had sufficient connection to his position to warrant dismissal. As stated in Sydney Trains37 the issue here is where the employee performs the same duties, or duties in the same context in which the crime was committed. In that case, it was also stated that: “... a conviction on a drink-driving charge which occurred outside work hours would not be relevant to the employment of many people. However, it would be of critical relevance to a truck driver or taxi driver. It seems to me that an appropriate test is whether or not the conduct has a relevant connection to the employment.”38 [104] Another concept considered in Rose and Sydney Trains is the particular nature of the employee’s job. As stated in Sydney Trains: “The connection between the out of hours conduct and the employment may be because the role the employee is employed to perform, has inherent requirements, duties or obligations, with which the out of hours conduct is directly inconsistent. This may be because the employee holds a special position such as police officer, university academic, solicitor or public servant, and engages in conduct out of work which is directly inconsistent with the inherent requirements of his or her position. In such cases, the expectations that the employer may reasonably have about perceptions of the employee on the part of persons external to the employer, such as customers or members of the community, may be sufficient to establish the connection.”39 [105] In summary, I note the finding in Sydney Trains as follows: “The critical distinction between cases where a relevant connection is established is that something beyond mere expectation is required. The connection must relate to an inherent requirement of the employee’s position or an attribute which the employee must have in order to undertake the required duties of his or her position.”40 [106] The question then is whether having been convicted of possessing cocaine is an offence that relates to an inherent requirement of the Applicant’s position. This notion needs careful consideration. Being found in possession of cocaine would clearly create a significant problem [2026] FWC 898 25 if the employee was a member of the Police Drug Squad. However, it would not appear to create the same issue for a data entry operator. As such, and consistent with the case findings, each matter needs to be considered on its facts and particulars. [107] In this instance, there may be some temptation to lean towards an assumption that drug use in a train driver is a fundamental problem. However, I note the Applicant was not convicted of operating a vehicle under the influence of drugs. Rather, he was found to be in possession of those drugs. Now, from the sentencing remarks of Justice Crow in the QSC matter, I have distilled what I believe are some relevant comments, which are as follows, with my emphasis: “…it seems to me that the definition of drug-dependent person requiring someone to show impaired control – you are, it would appear to be, the antithesis of that, the opposite of that, in that I infer that you were taking drugs at the time to deal with your interpersonal issues, with your loss of family, but you had not taken the drugs when you were driving trains, thank goodness, and therefore you were not demonstrating impaired control. You were quite controlled. So you do not meet the threshold, and I decline to find that you were drug-dependent…”41 “And what you have in your favour is the fact that you hold good employment, which pays you very, very well, which clearly indicates that you have the cash resources to purchase drugs of this value…(y)ou said it was for personal use, and then you said that you use quite a bit…(i)t seems to me that those allegations are all, prima facie, reasonable and valid, and that – it seems to me that I ought not, therefore, to infer that this is a commercial possession.”42 “On the 17th of August ’23, at 7.45, police attended your residence in Bundaberg, executed a search warrant. It was recorded that at the outset, you declared that you had approximately 50 grams of cocaine in the bedroom. That is important. Some drug offenders cooperate with police and do the right thing, and some do the opposite; they lie, they cheat, they steal, they run away, they do all sorts of things. But you, it says, at the outset – so I accept that is a very positive sign for you.”43 “You have regularly attended upon the psychiatrist Dr Clark, and I have his report with me. He is very happy with your progress. You have an excellent work history. You have taken significant steps with respect to rehabilitation. You have provided numerous drug tests showing you are drug-free, and I accept, also, that you are regularly drug tested at your employment – or from time to time, I should say, and you continue driving trains.”44 “You have many features in your favour pointed out by Mr Kimmins. Your plea is important. It is relatively early. There was, most importantly, full cooperation with police at the scene. It is personal use. That is a very important factor in this case. You have an excellent work history. You have undertaken private rehabilitation at your own – at significant cost to you, and you have done very well, and you continue under the care of a psychiatrist, which is to your credit. You have got those numerous drug screens. So you have done very well.”45 [2026] FWC 898 26 “…I do accept that given your significant rehabilitation and your excellent antecedents, that there is no benefit to you and no benefit to society in imprisoning you today.”46 [108] To summarise the position taken by Justice Crow, the QSC was satisfied that the Applicant was not a supplier of drugs but a non-dependent personal user, who did not use drugs while driving trains. He cooperated with police, undertook rehabilitation of his own volition and had good prospects – prospects that were in part due to his employment. Clearly, Justice Crow anticipated that in refusing to issue a custodial sentence the Applicant would continue to drive trains – albeit under some scrutiny for drug use. While I do not suggest that His Honour Justice Crow’s views should be determinative of what happens to the Applicant’s employment, they are a useful guide to the rationale that underpinned his decision not to incarcerate the Applicant. Noting that His Honour had the benefit of considering the various medical reports on the Applicant, his views are in my assessment a useful independent analysis of the Applicant’s prospects of maintaining his employment while staying free of the influence of drugs. [109] In considering the case law, I take the view the conviction itself does not impact the Applicant’s employment. Nor do I think that there is sufficient nexus between the Applicant’s duties and the actual conviction itself, given the Sydney Trains notion (see [100] above) about similarities between duties and the crime. While I accept that the Applicant’s employment may well fall into the category of special employee contemplated in Sydney Trains and outlined at [101] above, I note that the finding in that case suggests that the perception of the employee by – for example – the public is what creates the connection. In effect, the employee is bringing the employer into disrepute or undermining his/her own authority in the case of for example a police officer. If that is the case, then I again note my findings on the issue of the Respondent’s reputation. I note here that this conclusion also stands for the second criteria in Rose regarding the cocaine conviction. [110] As mentioned above I also take this view of the convictions for common assault and breaching bail. I do not accept that these actions have sufficient connection – in any of the ways outlined above – to the Applicant’s employment. [111] Finally, I want to consider another issue that I perceive may lie behind the Respondent’s concerns, being the risks involved in continuing to employ the Applicant. Firstly, the case law seems to suggest that concerns about future actions should not be given any weight. For example, in Blyth their Honours Justices Dixon and McTiernan said: “…the conduct of the employee must itself involve the incompatibility, conflict or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.” In the same matter their Honours Justices Starke and Evatt said: “The mere apprehension that an employee will act in a manner incompatible with the duty of fidelity does not afford a ground for dismissal; he must be guilty of some conduct [2026] FWC 898 27 in itself, incompatible with his duty and the confidential relation between him and the employer.” [112] As such, to the extent that the Respondent relies on an uneasiness about the Applicant’s future behaviour, such reliance is problematic. This is particularly so given the independent conclusions drawn by Justice Crow in the Applicant’s QSC matter which are set out at [104] above. I should also note that when making its decision regarding the Applicant’s dismissal, the Respondent did not have the benefit of having read those remarks, as it had not procured the transcripts of either case.47 As such, I am not satisfied that the Applicant’s convictions create a valid reason for termination. [113] The second of the reasons for termination in the Respondent’s submissions is as follows: (b) the Applicant’s delay in reporting the three charges to the Respondent The delay in reporting [114] As noted above, the Applicant was charged with common assault in February 2023, and with breaching bail and cocaine possession on 17 August 2023. It is not disputed between the parties that the Applicant advised the Respondent of all of these charges on 9 October 2023 by way of emailing his manager.48 In terms of the delays, the Applicant says that he regarded the common assault charge as a fairly minor matter and unlikely to lead to a custodial sentence. It is to be remembered that at the time that the Applicant was charged with this offence, the Code only required reporting of charges that “may impact” an employee’s ability to perform their role. The change to the Code to require all charges to be reported was made after the Applicant was terminated. [115] As such, the Code did not mandate the reporting of all charges, albeit that it now does. I should note at this point that the evidence of Mr Galea was to the effect that this change was simply to reinforce what was already in place. I disagree. The change is clearly material. Previously, the employee had the discretion to decide if the charge had the potential to impact their ability to perform their role. In most cases – absent the risk of a custodial sentence – this would not be the case and so there would be no need to report. The new version requires all charges to be reported, with the discretion about what happens transferred to the Respondent. As such, to the extent that there is a suggestion from the Respondent that the Applicant was at the relevant time obliged to report all of his charges without consideration of their potential impact I reject that suggestion. [116] Having had the benefit of examining the Applicant’s history of convictions from New South Wales, he clearly has some experience of being in the court system for various offences – including common assault. As such and given that the eventual penalty for the common assault and the breach of bail combined was 120 hours of community service, I am inclined to regard as plausible his evidence that he did not think the common assault charge would lead to a custodial sentence. Given the discretion afforded by the Code at the relevant time, I regard it as reasonable that he did not report the common assault charge and so reject the Respondent’s submission that this was a breach of the Code or any other duty. [2026] FWC 898 28 [117] I then turn to the issue of breaching bail and cocaine possession. Having also having the benefit of reading the sentencing report from Justice Crow, I believe that the Applicant was very fortunate that his rehabilitation and his prognosis were such that they allowed His Honour to determine not to issue a custodial sentence for the cocaine possession. Indeed, even after the issues of trafficking or supplying cocaine were put aside the His Honour noted as follows: “I therefore consider that whilst it is a serious offence and that you ought to be convicted, and you ought to be sentenced to three years’ imprisonment…” [118] The charge to which the Applicant entered a guilty plea was possession of more than two grams of a schedule one dangerous drug. He was found in possession of fifty grams of that drug and was at the same time charged with breaching his bail conditions. The breach of the bail conditions was attempting to contact the victim of his assault. Given this, it seems to me that a reasonable person would have considered that those charges may lead to a custodial sentence. I should add at this point that I consider the Applicant to have been very fortunate with respect to the breach of bail charge in that there was apparently little evidence produced. I note that Magistrate McInnes took the following view: “The facts of the breach of bail are an attempt to contact. There are two ways of reading your desire to get the address of the victim so that you could sort him out, and I think it is appropriate that I take the beneficial view in the absence of other evidence, and that is that having realised what you had done you desired to try and fix him up, that is to compensate him as opposed to sort him out in the sense of getting rough with him to discourage him from pursuing a complaint.”49 [119] Notwithstanding the approach taken by both courts, there is little doubt in my mind that the Applicant, in accordance with the Code, should have reported these charges, or at the very least the cocaine charge. Of course, eventually he did so via his email of 9 October 2023. However, the Respondent takes issue with the delay. I note for completeness that relevant part of the Code as it stood at the time read as follows, with my emphasis: “If any of our people observe or have good cause to suspect that misconduct is occurring, or if this Standard or any Queensland Rail related documents and/or legislative requirements has been breached, they have a responsibility to report it to their relevant leader in a timely manner. In addition, our people must comply with legislative and/or policy obligations to report employee criminal charges and any convictions that may impact on their ability to perform their role.”50 [120] It appears to me from the above that while the time frame for reporting convictions is not specified beyond all doubt, it can be reasonably inferred that the expectation is that it be in a timely manner. In the Applicant’s case, it was a total of 53 days between being charged and reporting the charges. This would not appear to be timely. [121] The Applicant argues that the delay was caused by his fragile mental state at the time, which he says was acknowledged by the courts, and because he was seeking legal advice about his obligations. He says that after receiving legal advice and having spent some time in a rehabilitation facility he then reported the charges to the Respondent.51 [2026] FWC 898 29 [122] The Respondent rejected the Applicant’s submissions, noting that there was no evidence of his legal advice. I note from the Applicant’s own closing submissions the following, with my emphasis: “The Applicant, having sought legal and medical advice, determined that private, off- duty matters did not impact his employment, a judgment consistent with the discretionary language of the policy as it was written at the time.”52 [123] The Applicant’s evidence and submissions are somewhat unhelpful with respect to this issue. He says that having received legal advice he then reported his charges to the Respondent yet submits that the legal advice received was that he was not obliged to report the charges. Clearly, the Applicant was aware that there may be some question around his obligation to report the charges or he would not have sought legal advice. It is difficult to know what the precise legal advice entailed or indeed the nature of the question posed - which could clearly influence the answer given. [124] However, if the circumstances of the charges were known, and the provisions of the Code were considered, it is very difficult to see how prudent legal advice would suggest that there was no need to disclose the charges. I am must confess to a degree of unease about this part of the Applicant’s case given the apparent disparity between what appears to be his evidence and his submissions. I note particularly that his evidence does not in any way suggest that the legal advice was that he did not need to report the charges. Indeed, it would have potentially aided his case to say – and demonstrate with evidence - that this was the case and he had reported the charges anyway. As such, I am concerned about the extent to which the legal advice – whatever it was – could be said to explain the delay. [125] I am also mindful of the Respondent’s concern that the Applicant continued to attend for work for a period of time after the charges were laid. On the evidence provided I accept that he attended for work for a total of eleven days53 of which six were spent driving trains. As noted by the Respondent, this was at a time where the Applicant’s own submissions54 say that he was in a very vulnerable mental state. The Applicant has submitted that he is no more of a risk than other employees of attending for work in breach of the relevant drugs and alcohol policy and potentially less of a risk as he could be more closely monitored. That much is true for the future. However, it is not the case for the eleven days outlined above and it appears that this is a period that troubles the Respondent. [126] I am inclined to agree with the Respondent that the delay in reporting is not properly explained by the Applicant. I accept that he was in a rehabilitation facility for a period between the cocaine and breach of bail charges being laid and his reporting of those charges. But it would appear that for the majority of that time he was not and for some of that majority time he was at work. Given my concerns about the Applicant’s legal advice as set out above, I have formed the view that the Applicant was in breach of the Code by not reporting his charges in a timely manner. Further, I accept that this delay, and his attendance at work driving trains during a time when by his own admission he was in a vulnerable mental state has given the Respondent some cause for concern of the kind that is likely to – at least in part – erode the relationship of trust and confidence. [2026] FWC 898 30 [127] The second of the reasons for termination in the Respondent’s submissions is as follows: (c) the Applicant’s lack of transparency, honesty and integrity Honesty and integrity [128] The Respondent takes issue with the Applicant’s honesty and integrity with respect to several different issues which have been set out above. In summary, the Respondent took issue with: 1. The Applicant’s statement to the effect that he had removed himself from work from the moment he was charged with drug possession. 2. What he had – or had not – disclosed regarding his criminal history when he first obtained employment with the Respondent. 3. His stated intention55 of fighting the charges for common assault, breach of bail and drug possession. 4. The submission made by the Applicant’s lawyer to the QSC about drug dependence. 5. Comments by the Applicant during the disciplinary process with respect to his prior criminal history. 6. The Applicant’s responses given at hearing56 when he was questioned regarding his cocaine use. 7. The further responses given by the Applicant57 about the quantity of cocaine he had been consuming. [129] I will address each issue in turn. With respect to the first item, the Applicant states that he had simply forgotten the exact sequence of events immediately following his charge for cocaine possession when questioned about it some significant time later. As such, when questioned he had mistakenly told Mr Galea that he had removed himself. I accept that the period directly after the laying of the charge was stressful for the Applicant and by his own admission he was in a vulnerable mental state. Given this, I am prepared to accept that he may have an issue with his precise recall of that period – some 22 months prior - such that the statement made may reflect his recall such that it is. Consequently, I am not persuaded that his statement is such that it should be held against him. [130] The issue of his disclosure or otherwise of his criminal history during recruitment is another issue where I am prepared to accept that the Applicant was merely mistaken. He says and I accept that it had been his practice to confirm he had prior convictions when asked. Unable to recall exactly the questions on a form from several years prior, he says he assumed that he had made the same admission to the Respondent. While I accept that there was no such question asked of the Applicant by the Respondent, I am also mindful that his recall some years later of the details of a recruitment form may not be precise. Given this, I am inclined to accept that he was merely mistaken when he recalled ticking a box that in fact did not exist. [131] With respect to the third issue, the Applicant clearly stated that he would be fighting “the charges” in his email to the Respondent. He had conceded under cross-examination that “fight” was potentially a bad choice of words and that “defend” might have been more appropriate. I note that most of the discussion on this issue related to the cocaine charge and I will focus on that issue. It is unclear why the other charges did not receive the same attention. [2026] FWC 898 31 However, it appears the Applicant had entered a guilty plea to those charges on the basis that his legal advice was not to trouble the court with a hearing. [132] However, he did not concede under cross-examination that it had always been his intention to plead guilty to those charges or the cocaine charge. Rather, and with respect to the cocaine charge, he said that his plea only changed “one or two” days before the hearing and so the matter was changed to a sentencing hearing. Again, the change of plea was a result of legal advice. I questioned the Applicant as to how – having admitted to the Police that he had cocaine in his house – he intended to fight or indeed defend the charge. The Applicant’s response in evidence was that his lawyers thought there may have been issues with the validity of the search warrant used by the Police such that he may have been able to challenge the charge. This evidence was not challenged, and I accept that this is the case. [133] As such, my assessment is that the Applicant has not really committed any great offence by saying he was going to fight the charges. A casual reader of his email may have taken the view that he was fighting them because he was innocent. However, read in context, I do not think the Applicant was seeking to shy away from his cocaine use. The email reads in part as follows: “It is my intention to fight these charges. Regardless, I acknowledge that I have had a problem with substance abuse, both alcohol and cocaine.”58 [134] To my mind the Applicant may have used incorrect language and perhaps should have used “defend” rather than fight. However, he is making it clear that he has been a user of cocaine and is not seeking to mislead the Respondent. He is putting the Respondent on notice that he has had a problem and further in the email speaks of his time in rehabilitation. The Respondent was thus able to implement various processes with respect to drug testing and monitoring while it waited for the outcome of the Applicant’s court cases. [135] I am not sure what the Respondent believes it would have done differently had the Applicant simply made no comment at all about his intentions. Presumably it would have taken the orthodox view that a person is innocent until they are proven guilty and awaited the outcome of the court cases while implementing an enhanced drug testing and monitoring regime. I see no evidence of – nor would I regard as being in any way appropriate – a suggestion that the Respondent would have terminated the Applicant in October 2023 on the basis that he had simply been charged. [136] As noted in Rose and set out at [94] above, the employer is not in a position to make moral judgments about an employee’s out-of-work activities. It is only where such activities enlivens one of the three criteria in Rose that it ought to concern the employer. Clearly, every case will of course need to be assessed on its specific facts and circumstances. There may be some scenarios where an employer is entitled to have regard for the nature of a charge and implement certain provisions around the employee’s attendance and performance of work – which may change depending on the outcome of the charge. In this instance I find nothing untoward in the enhanced drug testing regime implemented by the Respondent. Indeed, the Applicant himself made it clear in his email of 9 October 202359 that he was prepared to accept that regime. [2026] FWC 898 32 [137] Given this, the information given by the Applicant to the Respondent at the time was in my view sufficient to allow it to implement appropriate measures to monitor the Applicant. This then raises the question of whether with the benefit of hindsight the Applicant should be regarded as misleading the Respondent. It is not unusual for parties in legal situations to change their stance – particularly where legal advice is given that is designed to reduce the risk of severe punishment. As such, even if the Applicant did suggest he would fight the charges and he subsequently – on legal advice – modified his position, I am not sure that this should count against him. Consider a different scenario. The Applicant advises the Respondent that he does not intend to fight the charges. He is then some time later told by his legal team that there is a problem with the Police case such that they are unlikely to succeed with a prosecution. It would be reasonable to expect the Applicant to change his position. But in doing so it might be said that he had misled the Respondent. [138] The Code only requires the Applicant to report the charge; it does not mandate that he also explain his legal strategy. As such, the Applicant is not in breach of the Code’s requirements by making a statement about his intentions. As to misleading the Respondent, he may have used fight where he meant defend but I am not satisfied that it is reasonable to – in effect – accuse him of willful deceit where he modifies his stated position in response to legal advice. [139] In the fourth point, the Respondent also seeks to make something of the statements made by the Applicant’s lawyer on his behalf about his drug use. Put simply, the lawyer made a case that the Applicant was drug dependent. It is to be presumed that this was done to try to avoid a charge of supplying drugs in circumstances where the Applicant was in possession of a significant quantity of cocaine. Such a charge would have almost certainly resulted in a custodial sentence. However, in other statements the Applicant sought to distance himself from the suggestion he was a regular, dependent drug user, suggesting his use was recreational and at times when he was not required to work. [140] The Respondent makes the point that the Applicant has either sought to mislead the QSC or the FWC. I am not prepared to make such a black and white assessment. The Applicant’s evidence – which I accept – is that the plea with respect to the level his drug use was made by his lawyer in effect without his prior knowledge but in an attempt to minimize his sentence. While the courts would take a dim view of such behaviour, I am prepared to accept that it happens. In any case, the court rejected the notion that the Applicant was drug dependent and issued its sentence on that basis. Given that the court has found in its sentencing judgment that the Applicant was not drug dependent, it is not unreasonable for him to take that position in the FWC. [141] The fifth issue is the Applicant lying about his criminal history when questioned during Mr Galea’s investigation. I accept that the Applicant did not disclose his full list of convictions, and I also accept that he tried to downplay such convictions as he had. How then should the FWC view this. In considering this issue I am mindful of the Full Bench decision in Newton v Toll Transport (Newton). In that matter, the Full Bench considered, amongst other things, a finding by Deputy President Boyce that an employee asked questions about his outside activities by his employer while he was at work was obliged to give honest answers. [142] The Bench rejected this notion. It stated as follows: [2026] FWC 898 33 “In essence, the Deputy President reasons that investigations by employers about matters that do not occur at work and which do not have any requisite connection with work are investigations which ‘occur at work’. It is said to follow from this that: ‘any answers provided by an employee to questions put to him or her by their employer during an investigation fall within the scope of the employment relationship’. In short, because questions (presumably about anything) are asked ‘at work’ the employee has a duty to answer honestly. With respect, we disagree. Contrary to the proposition advanced by the Deputy President, an employee does not become obliged to answer questions from their employer about matters occurring outside work in their private lives merely because those questions are asked whilst the employee is at work. The mere fact that the employee is asked questions ‘at work’ is insufficient.”60 [143] The Full Bench, drawing upon relevant authorities, concluded that an employee is not obliged to answer questions about their outside activities that have no connection to their employment. Rather, they have a right to silence.61 The next question considered by the Full bench, which is relevant in the current matter, is what happens if the employee does not remain silent but instead answers dishonestly. In contemplating this matter, the Full Bench stated as follows: “We accept that in some circumstances a dishonest answer to a question about out of work conduct may provide a valid reason for dismissal. For example, if an employee damages their employer’s interests by dishonestly and intentionally impugning the character of another employee.”62 [144] The Full Bench then drew upon the case of Streeter v Telstra Corporation Limited (Streeter)63 to illustrate the point. Drawing from that case, the Full Bench stated: “Ms Streeter had attended a social function organised by her work colleagues for which her employer, Telstra, had contributed to funding. Employees who worked with Ms Streeter had booked a hotel room in which to stay after the event. During the course of the night in the hotel room, Ms Streeter bathed with two employees and had sexual intercourse with one of those employees within the view and/or earshot of three other employees. When interviewed, Ms Streeter initially denied engaging in sexual activity and then refused to answer questions. At first instance it was held that there was a sufficient connection between Ms Streeter’s conduct and her employment but that the conduct was not sufficiently serious to constitute a valid reason for termination. Telstra also relied on Ms Streeter’s lies about engaging in sexual activity during its investigation as a separate valid reason for her dismissal; a proposition which was rejected at first instance. Telstra appealed. The majority considered that the Member at first instance had erred in concluding that Ms Streeter’s dishonesty could not ground a valid reason for dismissal and decided that there was a valid reason for Ms Streeter’s dismissal due to her dishonesty in her interviews with Telstra management: ‘We think Ms Streeter [2026] FWC 898 34 needed to be honest with Telstra during the investigation, notwithstanding the inherently personal nature of her activities, so that Telstra could determine and take appropriate action to deal with the difficulties. Ms Streeter’s dishonesty during the investigation meant Telstra could not be confident Ms Streeter would be honest with it in the future. The relationship of trust and confidence between Telstra and Ms Streeter was, thereby, destroyed. The majority decision in predicated on the earlier finding that there was a sufficient connection between the out of work conduct and employment; a finding in respect of which reasonable minds may differ.”64 [145] The Full Bench then considered what would happen if the out of work conduct lacked a connection to an employee’s employment. It concluded as follows: “But what if, in relation to this scenario, the Commission had found that the out of work conduct did not have the requisite connection to employment (because, for example, no other employees witnessed the conduct)? Would Ms Streeter have been bound to be honest in such circumstances? We think not. There are any number of entirely explicable reasons why an employee may not be candid in replying to questions by their employer about inherently private activities, including consensual, sexual activities which occur outside of work and which lacks the requisite connection to employment.”65 [146] Turning to the present matter, I note that the Applicant’s prior convictions were not raised with him at the point of engagement. Nor is there any requirement that I can find in the Code for employees to report convictions other than those that may impact their ability to perform their role. In my assessment, none of the Applicant’s prior convictions66 would appear to be capable of impacting the Applicant’s ability to perform his role. All of the sanctions placed upon the Applicant for those convictions had expired before he commenced employment with the Respondent. [147] Given this, the Respondent cannot be said to have misled the Respondent when gaining employment or failed to comply with the Code with respect to his prior convictions. The first time these convictions seem to have been raised with the Applicant were during the investigation about the three charges discussed above. The answers that he has given are not strictly accurate and he appears to have evaded – in all probability by design - any need to directly address the nature of those convictions. However, drawing on the principle in Newton at [145] above, it is difficult to determine any relevant connection that these convictions have with the Applicant’s employment. As such, in being evasive – or even dishonest – I do not find him to have engaged in any misconduct. [148] I should briefly comment on one other concept from Streeter found in the third paragraph cited in [144] above. The relevant part states as follows: “Ms Streeter’s dishonesty during the investigation meant Telstra could not be confident Ms Streeter would be honest with it in the future. The relationship of trust and confidence between Telstra and Ms Streeter was, thereby, destroyed.” [149] It may be questioned as to whether dishonesty with respect to matters not pertaining to the employment relationship would be capable of being similarly destructive of the relationship [2026] FWC 898 35 of trust and confidence. I perceive this to be pertinent as I read the Respondent’s submissions as suggesting that this is the case here. Noting the comments at [145] above, I am satisfied that the Full Bench in Newton has distinguished between the two categories of dishonesty. The first category, being dishonesty about an issue that the employer is entitled to query with an employee, seems to be capable of destroying trust and confidence. The second category, being dishonesty about an issue where the employer has no right to an answer, appears to be different. I perceive the Full Bench to regard such dishonesty as not destructive of the relationship of trust and confidence. [150] In saying this, my thinking is that while in practice it might be the case that the individual manager who is lied to may feel aggrieved and be negatively disposed towards the employee, it is nevertheless the case that this could not be relied upon to provide a valid reason to end the employment relationship. [151] The sixth issue is the Applicant’s responses given at hearing when he was questioned regarding his cocaine use. The particular exchange in question was during cross examination of the Applicant by Mr Reeves and is as follows: “Right. Thanks for that. And you described your cocaine use as habitual from 2019 is that right?---I didn't – that's not my words. These are the words of my legal team representing me. My cocaine use has been somewhat binge like and an opportunist in the sense that whenever I had the opportunity arise (indistinct words) off together or on annual leave, that I would – I would use. So that's not your description that you had your cocaine use as habitual from 2019, is that what you're saying? It wasn't your description?---I – I would – it was a – it was a binge use. So these are the words – these aren't my words that have been spoken in this – these are – these are my representatives. Can I take you to page 367 of the digital court book which is your statement in this matter before the Commission?---What paragraph, sorry? Paragraph 13. You're at that? Isn't this your statement saying that the events and subsequent convictions lead to my habitual drug use?---That's what's in my statement, yes.”67 [152] The actual statement at paragraph 13 of the Applicant’s witness statement, in context, is as follows: “In January 2017, we separated and I lost access to my daughters. My offences from 2019 were driven by my mental health decaying due to the relationship breakdown between myself and partner at the time, Ms Cheyanne Conwin and again losing access to my children. These events left a lasting effect on my mental health and has been a major catalyst for my run in with the law. I have attached and marked two psychological reports from my treating psychiatrist, Dr Peter Clark which elaborate upon these matters as “LB2” and “LB3” respectively. [2026] FWC 898 36 These events and subsequent convictions led to my habitual drug use.”68 [153] It is clear to me that the Applicant was seeking to provide an answer to the question posed to him - while he was under oath – that was not consistent with the evidence he had previously given in his witness statement. I will comment further on the implications of this below. [154] The seventh issue was the Applicant’s statements about the amount of cocaine he had been using. In this case the relevant exchange was during re-examination of the Applicant. He was asked about a report that had been provided to the Respondent69 which had outlined the quantity of cocaine used by the Applicant. The exchange went as follows: “Thank you, Deputy President. Mr Bowen, can I take you back to page 671 of the digital court book?---Yeah, I'm there. I'm not, two seconds - all right, so that was a letter to Mr Galea from Ms Louisa Hackenberg, the senior occupational health advisor?---That's correct, yep. In that letter Ms Hackenberg has some words in there. Those words were paraphrased by Ms Hackenberg, is that correct? They were not your own?---Yes, that's what I'm - I'm thinking in the sense that Ms Hackenberg too, she's the health - health representative for Queensland Rail so that's almost a little bit of Chinese whispers from what I've said to the psychologist who's been um passed some information to Louisa who then has written the email to Adrien. So that's got - that's four people involved and - - - So that - - -?--- - - - I don't believe that what's quoted there to be factual um my - my use. Thank you. So that report would seem non-factual in your opinion?---That's - the submissions with it, yes. And I move that that report would be inconsistent and unreliable?---Yep.”70 [155] The particular content to which the exchange referred was as follows: “Luke reported being a casual user of cocaine over the past two years or so. On average he indicated that he would use a gram or less once or twice a week and that at his peak he indicated using 2 to 3 grams over several hours with a day or two space in-between use.”71 [156] The Respondent says that this was another instance of the Applicant seeking to distance himself from his witness evidence that he was a habitual drug user. In reading the material provided by the parties, I am also mindful of the sentencing remarks of Justice Crow as follows: “During the search, you admitted to using cocaine – sorry – purchasing the cocaine for about $8,000. You said it was for personal use, and as I mentioned earlier, you go through an eight ball a day, and you were lucky to get through a month with that amount [2026] FWC 898 37 of drugs. You were issued a notice to appear. You were released on bail. I have found that this is personal use.”72 [157] Having undertaken a Google search of “eight ball” as it pertains to drug quantities, I have discovered that refers to one eighth of an ounce, or roughly 3.5 grams. As such, the QSC was apparently advised by the Applicant – or his lawyers – that he was using 3.5 grams of cocaine a day. This is a significantly higher amount than set out in the report at [155] above. And yet the Applicant says that the report in question over-states his use. [158] Clearly, the Applicant or those representing him have made different statements about his drug use in different fora. The brief examination above suggests that there are at least three different possibilities as to what his actual use might have been. Given this, I accept again that the Respondent is correct to say that the Applicant has been inconsistent and misleading – at least in some instances – regarding his drug use. [159] As such, I accept the Respondent’s submissions made with respect to the sixth and seventh issues from [127] above. However, what should be made of the Applicant’s apparent inconsistencies? I would note just for completeness that we cannot know which of the versions of the Applicant’s drug use is correct. Logic suggest that he may have been honest with the FWC but misleading elsewhere. We simply cannot know. Nevertheless, his inconsistencies have been exposed by his statements to the FWC. [160] Applicants misleading courts and tribunals is a reality that no doubt occurs every day notwithstanding the oaths and affirmations that they give. When such behaviour is exposed as it has been in this case, the question arises as to what should be the result. In considering this, I find that there should be some consequences. However, I find that the consequence should not be to provide a valid reason for termination. Rather, I think that such behaviour should form a large part of the FWC’s consideration of an appropriate remedy if indeed the Applicant is found to have been unfairly dismissed. Conclusion [161] In the consideration above, I have rejected a large part of the Respondent’s submissions with respect to a valid reason for termination. I have relied on prevailing case law, such as Rose, but also the general notion that employees are entitled to have private lives, and that any intrusion into those lives by an employer should be minimal and confined to a very small set of circumstances. It is not enough that an employer may disapprove of an employee’s private activities. So long as the employee attends for work, performs their job and does nothing outside of work to harm the employer’s interests or damage the employment relationship, the employer takes the employee as they find him or her in the workplace. [162] In the present matter, it seems to me that much of the Respondent’s concerns are about reputation, but without any evidence other than supposition to support reputational damage. I emphasize again that the Respondent itself was never named in any media reports. The Respondent clearly73 has concerns about potential prior behaviour by the Applicant and concerns about future behaviour.74 Such concerns need to be based on a sound footing. I note the findings of the Full Bench in Sydney Trains v Goodsell where the Full Bench set out some principles derived from previous cases. Of particular note is the following, with my emphasis: [2026] FWC 898 38 “Fifth, cases where an employer asserts that the reason for a dismissal included that an employee was impaired at work, or there was a risk that the employee was impaired at work or that there was a risk that the employee would attend work under an impairment at a future time, will generally fall for consideration under s. 387(a) in relation to whether impairment or present or future risk of impairment, is a valid reason for dismissal. In such cases the Commission will be required to determine whether the conduct occurred or the belief that it would occur in the future, is sound, defensible, well-founded, and therefore a valid reason for dismissal.”75 [163] There is no evidence that the Applicant attended for work under the influence of cocaine. The Respondent had a drug testing regime of which the Applicant was aware. He says and I accept that he used a drug testing kit purchased from a chemist to assess himself before going to work and that he never attended work under the influence. There is no evidence to the contrary. Although he was not drug tested at work during 2023 he could have been and so ran that risk if he did attend under the influence. [164] As to future breaches, I note that the Applicant of his own accord has attended rehabilitation twice and his treating medical practitioners appear to be positive about his progress and prospects – as was the QSC76. While the Respondent might have misgivings, I am not sure that they are informed by the medical evidence but rather based on the concerns of the individual managers involved. I do not seek to discount their disquiet or in any way disparage their concerns. However, I am not satisfied that those concerns – or fears about potential previous behaviour - can amount to a valid reason for termination. [165] The other major issue raised by the Respondent is the Applicant’s levels of honesty and the concomitant issue of damage to the employment relationship. I have discussed this above and have generally found that I am not satisfied that the Applicant’s behaviour has been such that it could justify or contribute to a valid reason for termination. However, this is not the case with the issue of his delay in reporting his cocaine charge to the Respondent. His evidence and submissions with respect to this issue are inconsistent and do not properly explain the delay in my assessment. [166] This is problematic because it means that the Applicant drove trains during a period where his own evidence is that he was in poor mental health and the Respondent could not implement an enhanced drug testing regime – which it did when it became aware of his charge. In summary, the Applicant was in breach of the policy and the breach in my view had consequences. However, of itself, I cannot see that this would constitute a valid reason for termination of itself. A failure to report his charge would have in all likelihood produced a different conclusion. However, in this instance I take the view that the Applicant is guilty of misconduct, but it does not of itself rise to a level that would justify termination. [167] In summary, I find that notwithstanding that the Applicant has engaged in misconduct, the Respondent did not have a valid reason for dismissing him from his employment. Was the Applicant notified of the valid reason? [168] Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).77 [2026] FWC 898 39 [169] As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.78 Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct? [170] As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.79 Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal? [171] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. [172] There is no dispute between the parties that the Applicant was allowed representation by his union the RTBU throughout the disciplinary process. Was the Applicant warned about unsatisfactory performance before the dismissal? [173] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances. To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? [174] There was no dispute between the parties that the Respondent is a large organisation with dedicated human resource managers such that these issues are not relevant considerations in this matter. What other matters are relevant? [175] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. [176] The first issue I will deal with is the matter of Mr Graham Parsons. The Applicant argued that the Respondent had engaged in inconsistent treatment by dismissing him but failing to dismiss – or at least immediately dismiss – Mr Parson who was a Driver-in-Charge who was convicted of serious drug charges which were publicised in the media. The Respondent’s witnesses were questioned about Mr Parsons in cross-examination. [2026] FWC 898 40 [177] From the information given it can be inferred that the Parsons matter had occurred at some time around 2009 and in a predecessor organisation which eventually split into two parts, one being the Respondent. The decision to retain Mr Parsons was made by the human resources department of that predecessor organisation, but it was not one where either of the Respondent’s witnesses had been directly involved. As such, the rationale for the decision was not able to be investigated. [178] While I understand the notion of inconsistent treatment being unfair, I am inclined to be very cautious with this issue. I agree with the view that inconsistent treatment of two matters that have significant similarities is problematic. However, each case must be assessed on its particular facts and circumstances – and it is rare to find two cases that are substantially similar in all relevant ways. [179] Further, there is some danger in seeking to bluntly enforce consistency. If one employee is dismissed for a breach of a particular policy, does that mean that all employees should thereafter be dismissed for breach of that policy irrespective of mitigating circumstances? I would say not. As such, without clear understanding of the relevant facts of the Parsons case, I am not inclined to attach any weight to the notion that in the first instance the matters are comparable or that they are sufficiently comparable that 16 years later the same outcome should apply. [180] The second issue I want to consider is the impact of the termination on the Applicant himself. As canvassed above, the QSC was satisfied that the Applicant was making good progress in addressing his use of drugs. The QSC also made several positive references to the Applicant’s employment.80 The courts did not impose any custodial sentences on the Applicant and in my assessment operated on the basis that he would return to work. [181] In dismissing him the Applicant submits that the Respondent has caused him significant hardship both economically and, potentially, in terms of his mental health at a time when he is striving to rehabilitate himself. He submits his changed circumstances may impact on his ability to undertake rehabilitation, which he says is important for addressing the issues that have impacted his personal life and have left him in a vulnerable economic position. [182] I accept that the specific impacts on a particular employee can exacerbate the harshness of a dismissal. While almost all dismissals will have negative impact on an employee, an individual employee’s circumstances may mean the effect is more profound. In the case of the Applicant, I am prepared to concede that the particular stage of his life at which he found himself was such that the dismissal would have caused him a reasonable measure of harm. [183] Clearly, this harm may have been ameliorated by a different outcome. I have already found that there was no valid reason for termination. However, I note that the evidence suggests that the Respondent took its action without the benefit of having read the sentencing reports from either court. While it says that the transcripts are difficult to come by for those not involved in the case, there is no suggestion that they asked the Applicant for a copy of them. Clearly, the Applicant does not feel any need to hide those documents as he has tendered them in evidence. [2026] FWC 898 41 [184] There may be circumstances where an employer may feel no need to examine the sentencing report of a convicted employee. Suppose an employee is convicted and sentenced to immediate imprisonment for 20 years. There would appear to be little to be gained in perusing the court’s thinking. However, where an employee is not given a custodial sentence in circumstances where he could have potentially been imprisoned for 25 years81 it seems prudent to determine why the court acted as it did. Given this, I find that the Respondent’s failure to engage with the sentencing report – while perhaps understandable – does add some level of harshness to the dismissal. [185] The third issue is the contention by the Applicant that I should consider the Applicant’s: “…18 years of service in the industry and a clean record with no prior disciplinary or safety incidents.”82 [186] In support of this proposition the Applicant cites the finding of the Full Bench in Sydney Trains v Gary Hilder (see [50] above). While it is true that the FWC will look at an employee’s length of service in assessing harshness, I do not accept that this is intended to be their service in the industry. Rather, it is service with the employer, which in the Applicant’s case is approximately two years and nine months. Such a length of service does not in my view weigh in one direction or the other with respect to the issue of harshness. [187] I should note that the Applicant submitted with respect to this section (being s387(h)) that I should look at the issue of criminal offences occurring outside of the workplace. I am satisfied that I have canvassed this issue in detail in my consideration of s.387(a). Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable? [188] I have made findings in relation to each matter specified in section 387 as relevant. [189] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.83 [190] Having undertaken that consideration, I find that the dismissal of the applicant was unreasonable in that while he had engaged in some misconduct, it did not rise to the level that provided a valid reason for termination. I also find that there is some element of harshness in the dismissal given its impact on the Applicant due to his particular circumstances. I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. Remedy [191] The remedies available for unfair dismissal are reinstatement and / or compensation. Consistent with section 390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless: (a) I am satisfied that reinstatement of the Applicant is inappropriate; and [2026] FWC 898 42 (b) I consider an order for payment of compensation is appropriate in all the circumstances of the case. Is reinstatement of the Applicant inappropriate? Submissions [192] The Applicant submitted that reinstatement is appropriate. He says that he was an employee unfairly dismissed with no record of safety breaches or disciplinary incidents. His misconduct was out of work and caused no harm to the business. He says the dismissal had a major impact on his economic and personal life and he is effectively locked out of the industry he loves by the decision. [193] The Respondent submitted that reinstatement is inappropriate. It submits that the Applicant’s criminal history and issues with substance dependence are such that it cannot have trust and confidence in him. It further submits that the FWC should be mindful that there is a real possibility, if not probability, that the Applicant drove trains under the influence of drugs. The Respondent further says that the Applicant demonstrated a lack of honesty, integrity and transparency during the disciplinary process and before the FWC. [194] The Respondent also submits that reinstatement of the Applicant would be a negative consequence for it inasmuch as it would send an unwelcome message to its workforce about safety. Further, it has the potential to damage the trust and confidence the community has in the state’s rail provider. Consideration [195] The Applicant, as I have found, was guilty of misconduct inasmuch as I am not satisfied that he complied with the requirements of the Code in an appropriately timely manner and this non-compliance had consequences for the Respondent, in that it was unable to put in place controls that it did put in place once it became aware of the charges. I have also highlighted the inconsistencies in the Applicant’s evidence about the frequency and volume of his drug use. To reiterate, there is no doubt in my mind that he has provided different information to different fora. I raised the notion above that while this might not be relevant when considering a valid reason for termination, it would be relevant in considering reinstatement. [196] Given the concerns outlined by the Respondent over his honesty and integrity, and given my finding, I am satisfied that it would not be a workable outcome to reinstate the Applicant. As such, I find it is not appropriate to award reinstatement. Is an order for payment of compensation appropriate in all the circumstances of the case? [197] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”84 Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.85 [2026] FWC 898 43 [198] Given that I have found an element of harshness in the dismissal in addition to unreasonableness, I am satisfied that it is appropriate to award a remedy. However, I am aware that the Applicant has secured alternative employment and has earnings from that employment. Also, while the Respondent has provided in its Form F3 a fortnightly rate for the Applicant as at the time of dismissal, it is appropriate that I seek confirmation of that rate. Given this, I will seek submissions on remedy from the parties. Conclusion [199] I find that the Applicant has been unfairly dismissed from his employment. However, I further find that reinstatement is inappropriate and therefore intend to seek submissions on remedy from the parties. DEPUTY PRESIDENT Appearances: Mr C Vicars of the RTBU for the Applicant Mr M Reeves for the Respondent Hearing details: Via Teams Video 14 January 2026 Final written submissions: 9 February 2026 Printed by authority of the Commonwealth Government Printer <PR797783> 1 See Court Book page 21 at paragraph three. 2 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69]. 3 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373. 4 Ibid. 5 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685. 6 Edwards v Justice Giudice [1999] FCA 1836, [7]. 7 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]. [2026] FWC 898 44 8 See annexure LB15 at Court Book page 303. 9 See Applicant’s Submissions page 62 at [115]. 10 B. Rose v Telstra Corporation Limited [1998] AIRC 1592. 11 Blyth Chemicals v Bushnell [1933] HCA 8. 12 See Court Book at pages 165-166. 13 See Respondent Submissions page 14 at [54]. 14 Ibid page 17 at [64]. 15 Ibid at [67]. 16 See Court Book at page 561 final paragraph. 17 See Applicant Submissions page 73 at [132]. 18 Ibid at [133]. 19 See Court Book page 625 -626. 20 Sydney Trains v Hilder [2020] FWCFB 1373 at [26]. 21 Respondent Closing Submissions page 2 at [5]. 22 See Transcript at PN170 – PN181. 23 See Court Book page 367 at [13]. 24 See Court Book page 572 first paragraph. 25 Ibid page 574 section 2.1.2 first dot point. 26 Ibid page 575 first dot point. 27 Ibid page 575 section 2.3.1 fifth dot point. 28 Briginshaw v Briginshaw (1938) CLR 336. 29 Ibid page 17 at [64]. 30 Rose. 31 Wall v Westcott (1982) 1 IR 252 at 256. 32 Rose. 33 See Sydney Trains v Bobrenitsky [2022] FWCFB 32 at [127] – [129]. 34 See “Australians are the world’s biggest users of cocaine” by Angus Whitley AFR June 27 2025. 35 HEF of Australia v Western Hospital (1991) 4 VIR 310 at 324. 36 Hussein v Westpac Banking Corporation (1995) 59 IR 103. 37 Sydney Trains at [146]. 38 Ibid at 107. 39 Sydney Trains at [145]. 40 Sydney Trains at [147]. 41 See Court Book page 225 at [5]. 42 Ibid page 224 at [35]. 43 Ibid page 225 at [10]. 44 Ibid page 226 at [10]. 45 Ibid page 226 at [40]. 46 Ibid page 226 at [45]. 47 See Transcript at PN399. 48 See Court Book page 591. 49 See Court Book page 219 at [10]. 50 See Court Book page 561 at point 2.6.1. 51 See Witness Statement of L Bowen at Court Book page 369 at [43]-[44]. [2026] FWC 898 45 52 See Applicant’s Closing Submissions page 3 at [14]. 53 See Court Book at page 760. 54 See Court Book page 165 at [132]. 55 See Court Book page 21 at paragraph 3. 56 See Transcript at PN144-PN147. 57 See Transcript at PN212-PN216. 58 See Court Book page 21 at paragraph 3. 59 Ibid at final paragraph. 60 Steve Newton v Toll Transport Pty Ltd [2021] FWCFB 3457 at [151]-[152]. 61 Ibid at [157]. 62 Ibid at [163]. 63 Streeter v Telstra Corporation Limited [2008] AIRCFB 15. 64 Steve Newton v Toll Transport Pty Ltd [2021] FWCFB 3457 at [165]-[168]. 65 Ibid at [169]. 66 See Court Book at pages 205-210. 67 See Transcript at PN144-PN147. 68 See Court Book page 367 at [11]-[13]. 69 See Court Book at pages 671-672. 70 See Transcript at PN212-PN218. 71 See Court Book page 671 paragraph 4. 72 See Court Book page 225 at [25]. 73 See Court Book page 749 at [14]. 74 See Court Book page 750 at [16bii]. 75 Sydney Trains v Mr Reece Goodsell [2024] FWCFB 401 at [115]. 76 See Court Book page 226 at [10], [15] and [45]. 77 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55]. 78 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49]. 79 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49]. 80 See Court Book page 224 at [35], page 225 at [40], page 226 at [40]. 81 See Court Book page 224 at [5]. 82 See Applicant Closing Submissions page 6 at [34]. 83 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7]. 84 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9]. 85 Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].