The driver's lawyer, Turner Freeman industrial employment lawyer Tim Kucera, said the 63-year-old driver was told he was dismissed on December 18 and had his appeal against the decision rejected by the company on December 28.

"This bloke has had a pretty shitty Christmas, I can assure you," he said.

It is a classic case of 'have an accident, blame the worker not the system'.

Lawyer TIm Kucera

Mr Kucera declined to outline the basis of the man's claim for unfair dismissal but said the company needed to take its share of the blame for the accident.

"It is a classic case of 'have an accident, blame the worker not the system'," he said.

"Essentially what we will be saying is that the decision to dismiss was unfair for a raft of reasons not least of which was blaming the worker for the accident when there were significant issues with the systems, [over which he had no control]."

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Mr Kucera said the issues raised would be important given the rise of automation in the workplace.

He said the fly-in-fly-out driver from South Australia still needed to work.

"He is an experienced train driver, the problem is that because of the way this has all transpired it makes it pretty hard for him to pick up a job somewhere else," Mr Kucera said.

BHP declined to confirm the circumstances of the driver's departure.

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"The driver is no longer employed by the company. Out of respect for the individual and their privacy we are unable to provide further information," a BHP spokeswoman said in an emailed statement.

While BHP said that it expected some interruption to its iron ore exports after the derailment, which forced the suspension of its rail operations, CEO Andrew Mackenzie said in November that the miner would meet its commitments to customers.

Australia's Transport Safety Bureau launched a probe into the incident and is expected to release a report in the second quarter of 2019.