DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeff Weekley
v
Essential Energy
(U2017/9379)

Nick Fitzgerald
v
Essential Energy
(U2017/9381)

Gavin Campbell
v
Essential Energy
(U2017/9382)

Applications for an unfair dismissal remedy.

Introduction and Background

[1] Mr Jeff Weekley, Mr Nick Fitzgerald and Mr Gavin Campbell (the Applicants) have each made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy. The applications have been made under s.394 of the Fair Work Act 2009 (the Act). The Applicants’ former employer is Essential Energy (the Respondent).

[2] The applications were heard concurrently before me in Wentworth on 19, 20 and 21 December 2017 and in Sydney on 7 February 2018. The matters were heard concurrently as the dismissals arise from the Applicants involvement in the same incident on 21 April 2017. The Applicants were represented by Mr Walkaden of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Mr Joseph of Counsel was granted permission to appear for the Respondent as I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[3] The Applicants each gave evidence on their own behalf. Evidence for the Applicants was also provided by Mr Jamie Main, Powerline Worker for the Respondent and CFMMEU delegate.

[4] Evidence for the Respondent was provided by the following employees of the Respondent:

•  Mr William Britten, Manager, Training Delivery in the Safety, Human Resources and Environment division;

•  Mr Brian Sim, Investigations and Improvements Manager in the Safety, Human Resources and Environment division; and

•  Mr David Nardi, General Manager, Safety, Human Resources, and Environment;

•  Mr Luke Jenner, General Manager Network Services.

[5] The Respondent also filed a reply witness statement of Mr Dustin Duggan, Area Manager; however, his evidence was ultimately not relied upon by the Respondent. 1

[6] Mr Fitzgerald was employed by the Respondent (or one of its predecessors) in April 1981. At the date of his dismissal Mr Fitzgerald was employed as a Resource Supervisor. Mr Campbell was employed by the Respondent in November 2010. At the date of his dismissal Gavin Campbell was employed as an Electrical Worker. Mr Weekley was employed by the Respondent (or one of its predecessors) for approximately 23 years and most recently from September 2002. At the date of his dismissal Mr Weekley was employed as a Powerline Worker. 2 The Applicants were based at the Respondents depot in Balranald in NSW.

[7] The incident leading to the dismissal of the Applicants occurred on 21 April 2017 when the Applicants were assigned to attend a site referred to as Mayfield Station, Freshwater Road, Booligal. The work which was performed between 2.20pm and 4.50pm required that a transformer be replaced on a concrete pole adjacent to Mayfield Station and at a distance of about 100 metres from a homestead. 3 On the day in question the weather was inclement.4 The fault to the transformer was caused by thunderstorms the night before which had damaged the Electricity Network in the surrounding area.5 The road conditions from the Depot to Mayfield were atrocious due to recent high levels of rainfall.6 The three men undertook the task of replacing the transformer and completed it successfully. The Applicants did not attach working earths or equipotential bonding at the worksite.7 Broadly speaking, these are measures that are taken to reduce the risk of electrocution to employees. Depending on the circumstances the Electrical Safety Rules dictate that these measures may or may not have to be undertaken on a particular worksite. The manner in which the job was performed at Mayfield required the installation of working earths and bonds in accordance with the Electrical Safety Rules. However working earths and equipotential bonding were not used at Mayfield. No issue was raised about this at the time from any of the three men.8 It is as a result of a subsequent event that the Respondent became aware that they were not installed.

[8] The subsequent event was that on the way back to Balranald from the work site in Mayfield after travelling about 20 – 25km Mr Weekley’s vehicle slid in the very muddy and slippery conditions and the car rolled onto its side. 9 There was an investigation of the motor vehicle accident which ultimately cleared Mr Weekley of any wrongdoing in respect to the accident. However, the investigation report of Mr Sim in relation to the 21 April 2017 incident provides that, during the course of the investigation for the motor vehicle accident, in early May the Area Manager, Mr Duggan travelled out to the Mayfield site where the work had been performed in April. During the visit, he had a conversation with the property owner who was the main beneficiary of the work that had been performed by the Applicants. The property owner expressed appreciation of the work done by the Applicants and provided photographs to Mr Duggan of the Applicants working on the pole mounted transformer. The photographs indicated that when the transformer was being changed it was possible no working earths or no person protective bonds were installed, that two ladders may not have been correctly secured and the drop zone clearance may not have been maintained. The Regional Services Manager reviewed the HIRAC and Access Permit on 5 May 2017 which indicated there were possible conflicts as to what was recorded on the documents and what actually happened at the work site. This is what led to the further investigation of what occurred at the worksite in Mayfield on the day in question with the incident being reported to Senior Management on 21 July 2017.10

[9] This is how it came to be on 24 July 2017, a considerable time after the work had been completed at Mayfield, that each of the Applicants were stood down and provided letters notifying them that an investigation was being undertaken by the Respondent in relation to the events which occurred on 21 April 2017. The letters to each of the Applicants are in similar terms and state, among other things, that:

“Essential Energy has received information that you have been involved in serious safety breach/s at “Mayfield Station” Booligal on the 21 April 2017, whilst undertaking a transformer change….

It is alleged that you:

1. Failed to install working earths;

2. Failed to install equipotential bonds (PPB’s);

3. Fail to tie off the head and foot of two (2) ladders;

4. Made a false entry on an access permit stating working earths were installed at the work site;

5. Failed to maintain a safety observer whilst a worker was working aloft on a ladder; and

6. Failed to maintain clearance area in a drop zone for both workers and vehicles when work was being performed aloft.

These allegations if substantiated could be in breach of Essential Energy’s Code of Conduct and Essential Energy Electrical Safety Rules….” 11

[10] On 4 August 2017 the Applicants were provided with show cause letters. The letters to each of the Applicants are in similar terms and state, among other things, that:

“As you are aware, an investigation was conducted into an alleged serious incident on 21 April 2017 where you were involved in a serious incident relating to unsafe work practices including no [sic] using working earths or attaching personal protective bonds whilst working on the network. This incident occurred while working at Mayfield Station, Freshwater Road Booligal.

The Investigations Team conducted an interview with you on 25 July 2017. Other witnesses have also been interviewed as part of the investigation. Following this process, Essential Energy has made several initial findings against you, the details of which are attached to this letter along with a copy of the relevant Essential Energy policies.

Essential Energy considers your conduct and behaviour to be an extremely serious breach of the Electrical Safety Rules, Essential Energy’s Code of Conduct and the Disciplinary Action Policy. Given the seriousness of the this [sic] matter you are required to show cause in writing as to why your employment with Essential Energy should not be terminated on the grounds of serious misconduct, including any extenuating issues which you believe should be taken into consideration….” 12

[11] There were 7 findings made following the investigation. The 7 findings were expressed in identical terms to each of the Applicants. 13 Attached to the show cause letters was a document headed ‘Findings Following Investigation’ which was in similar terms, as follows:

“Following the investigation process, Essential Energy has made the following findings in relation to your conduct.

You are asked to respond to these allegations as part of your response to the attached show cause letter. Your response will be given further consideration by Essential Energy before a final decision is made in relation to your employment.

Finding 1: Failure to comply with Essential Energy’s Electrical Safety Rules – install working earths: CEOP8030 Section 5.38 and Section 7.33

Finding 2: Failure to comply with Essential Energy’s Electrical Safety Rules – install personal protective bonds CEOP8030 Section 7.34 and CEOP2377 Section 3.2 (Personal Protective Bonding)

Finding 3: Failure to properly complete Access Permit 103147-G where you recorded that working earths were erected on the work site

Finding 4: HIRAC D 647131 – Where you incorrectly recorded that equipotential bonding was installed when it was not

Finding 5: Failure to report the incident (raise a Totalsafe) – CECM1000.3 Section 4

Finding 6: Failure to act in accordance with Essential Energy’s Code of Conduct, in particular to act ethically at all times and in relation to ‘Safety Excellence’

Finding 7: Failure to ‘Always control your work site’ in accordance with Electrical Safety Rules (CEOP8030)

Breach of Policy Findings

As a result of Findings [3 – Mr Fitzgerald only] 4 and 6, you failed to carry out your responsibilities as an employee in accordance with the Code of Conduct (particularly in relation to ‘Respect for People’, to ‘Act With Integrity’ and ‘Safety Excellence’). You also failed to carry out your responsibilities as an employee in accordance with the Disciplinary Action Policy (CECP0005.05) by engaging in serious misconduct. This includes serious misconduct resulting in a serious breach of the Code of Conduct; Safety Excellence and Act with Integrity; and Conduct that causes serious and imminent risk to the health and safety of a person or the reputation of Essential Energy’s business.

As a result of Findings 1, 2, 5 & 7 you failed to carry out your responsibilities as an employee in accordance with the Code of Conduct (particularly in relation to ‘Safety Excellence’) and that you failed to ‘Always control your work site’ in accordance with the Electrical Safety Rules (CEOP8030).”  14

[12] Each of the Applicants provided written responses to the show cause letters and on 15 August 2017 each were dismissed for serious misconduct. The letters of termination stated, among other things, that the investigation findings confirm the Applicants’ actions, conduct and behaviour to be an extremely serious breach of the Respondent’s policies and were unacceptable. Further, that having considered and taken into account the written responses in reply and mitigating factors they do not excuse the Applicants behaviour or provide a suitable explanation for their conduct in respect to the breach of fundamental Electrical Safety Rules that they had been trained in. 15

[13] The Applicant submits that the dismissals of each of the three men are unfair and that they are entitled to a remedy. 16

[14] The primary remedy sought by Mr Fitzgerald is reinstatement and an order preserving service. It is accepted that the effect of Mr Fitzgerald’s conduct (that is, Findings 1, 2, 5 & 7) is that there should not be an order for lost wages made in respect of Mr Fitzgerald. 17

[15] The primary remedy sought by Mr Weekley is reinstatement and an order preserving service. Mr Weekley seeks an order for lost wages. However, it is accepted that the effect of Mr Weekley’s conduct (that is, Finding 5) is that there should be a reduction from the amount of lost wages ordered. 18

[16] Mr Campbell does not seek reinstatement and seeks an order of compensation. It is accepted that Mr Campbell’s conduct (that is, Finding 5) should result in a reduction from the amount of compensation that is ordered. 19

[17] The Respondent submits that a valid reason for dismissal existed in each case and that the conduct of the three Applicants was properly categorised as serious misconduct in each case, justifying summary dismissal. Further that summary dismissal was not disproportionate and the dismissal is not otherwise unfair and that each of the applications should be dismissed. 20

The law to be applied

[18] Under the Act, a person is protected from unfair dismissal if:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

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

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[19] The Essential Energy Far West Electricity Enterprise Agreement 2016 (Agreement) applied to the Respondent and the Applicants prior to their dismissal. 21

[20] I find the Applicants are persons protected from unfair dismissal as they had completed the minimum employment period and an enterprise agreement applied to the Applicants.

[21] Unfair dismissal is governed by Part 3-2 of the Act. Section 385 of the Act sets out what constitutes an unfair dismissal:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

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

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

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[22] With regard to s.385(a) it is not in dispute that the Applicants were dismissed by the Respondent in line with the meaning of dismissal outlined in s.386(a) of the Act.

[23] With regard to s.385(c) of the Act, the Respondent is not a small business. The Small Business Fair Dismissal Code does not apply in this matter.

[24] With regard to s.385(d) there was no suggestion that the Applicants dismissals were a case of genuine redundancy. Section 385(d) does not apply in this matter.

[25] The only matter for consideration is whether the dismissals were harsh, unjust or unreasonable (s.385(b) of the Act).

[26] Section 387 of the Act provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.”

[27] Serious misconduct is defined in s.12 of the Act as having the meaning prescribed by the regulations. Regulation 1.07 in the Fair Work Regulations 2009 provides as follows;

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”

Submissions and Evidence

[28] I note that a great deal of the evidence in this matter is agreed. I have been greatly assisted by the work of the parties in preparing a Statement of Agreed Facts and many of the key facts in the matter can be sourced from that document. However, it is also necessary to make a number of factual findings as part of the consideration.

The Respondent’s policies and procedures

[29] At all material times, the Applicants were required to comply with the Respondent’s policies and procedures including:

•  CEOP8030 - The Electrical Safety Rules (ESR); 22

•  CEOP2377- Operational Procedure Equipotential and Personal Protective Bonding; 23

•  CEOP2045 - Access Permit Procedure; 24

•  CEOP3000.01 - Code of Conduct; 25

•  CEOM8047 - Electricity Network Safety Management System Plan; 26

•  CECM1000.02- Health, Safety and Environmental Manual Risk Management; 27

•  CEOF1002.02-De-energised Safe Work Method Statement & Hazard Identification, Risk Assessment and Control (SWMS & HIRAC); 28 and

•  Rules We Live By - Network Fatal Risk Program. 29

[30] At all material times, the Respondent was obliged to comply with the Work Health and Safety Act 2011 (NSW) and the Electricity Supply (Safety and Network Management) Regulation 2014 (NSW). 30

[31] The Respondent submits that the Electrical Safety Rules apply to all workers working on or near high voltage electrical apparatus associated with the Respondent’s electricity network. They are founded on three steps to always put safety first, always test and always control your worksite. 31 The Electrical Safety Rules represent the Respondent’s core safety rules and requirements as relevant to an employee’s duties and responsibilities. Mr Britten’s evidence is that a critical part of the Respondent’s internal assessment and training involves assessing the employee’s understanding and knowledge of the Electrical Safety Rules which is critical to maintaining the employee’s safety at work.32 Mr Campbell agreed that following the Electrical Safety Rules if work requires employees to work on or near a power network is of central importance to everybody on the network. He also agreed that the work undertaken on the network is dangerous and not following the rules has the potential to put people’s lives at risk.33 Mr Fitzgerald agreed that the purpose of the rules are to keep people working on the network safe and to remove as many risks to people as possible. Further, he agreed it would be a serious matter if an employee deliberately chose not to follow the Electrical Safety Rules.34 Mr Weekley agreed that the Electrical Safety Rules are important in the sense that they seek to minimise the risk to people doing work on the network.35

The Respondents enterprise agreement and payment of the allowance

[32] As at 21 April 2017, the employment of all three Applicants was governed, in part, by the terms of the Essential Energy Far West Electricity Enterprise Agreement 2016 (the Agreement). 36

[33] As at 21 April 2017, all three Applicants received an Electrical Safety Rules Allowance pursuant to clause 5.2 of the Agreement for having been assessed as competent to apply and comply with the Electrical Safety Rules and for having to supervise work and/or work in accordance with the Electrical Safety Rules. 37

[34] As at 21 April 2017, Mr Fitzgerald and Mr Weekley received an allowance of $120 per week and Mr Campbell received an allowance of $75 per week pursuant to clause 5.2 of the Agreement. 38

Training that each Applicant had undertaken prior to the incident on 21 April 2017

[35] Each of the Applicants underwent annual ‘refresher’ training and testing in relation to the Electrical Safety Rules. This included an annual online open book assessment and an annual closed book assessment. 39 All employees of the Respondent, including the Applicants, who were required to work in accordance with the Electrical Safety Rules underwent annual testing of their knowledge of those rules and were required to pass those tests in order to be allowed to continue to work on the network.40

[36] Each of the Applicants were most recently assessed on the Electrical Safety Rules on 12 April 2017. 41 The Respondent drew attention to the fact that this was 9 days before the work was done at the Mayfield Site.42 Each of the Applicants underwent formal training in relation to the Equipotential and LV Bonding Procedure (Operational Procedure 2377) and in relation to Hazard identification, risk assessment and control (HIRAC)43 awareness, and the obligations in completing a HIRAC most recently on 13 March 2012.44

[37] Each of the Applicant’s EKAS training records and People Soft training records, showing training specific to equipotential and bonding requirements at the date of dismissal and answer sheets for component two of the annual refresher Electrical Safety Rules training on 12 April 2017 were tendered as evidence. 45

[38] Mr Weekley was trained as an Access Permit Issuer and Recipient. He had completed re-authorisation training and assessment on this topic in November 2016. Mr Fitzgerald was also trained as an Access Permit Issuer and Recipient. 46

Detail of the events of 21 April 2017 at Mayfield Station

[39] As noted in the background above, the Applicants were assigned to attend a site referred to as Mayfield Station, Freshwater Road, Booligal on 21 April 2017. The work required that a transformer be replaced on a concrete pole adjacent to Mayfield Station and at a distance about 100 metres from the homestead. This is described in the Hazard identification, risk assessment and control (HIRAC) as sub 727016. 47 The work was performed between 2.20pm and 4.50pm.48

[40] Rain the previous evening meant that the road conditions on the day were atrocious and the trip took much longer than usual. Mr Fitzgerald said that the road conditions from Oxley to Mayfield were probably the worst he had ever experienced. 49 As a result of the road conditions, the transformer could not be replaced in the usual way using heavy equipment and the Applicants used older methods of using a winch and ladders to complete the work.50 The Applicants could not communicate with Network Operations at Mayfield. The effect of this was that the usual interaction between a Powerline Worker and Network Operations that occurs immediately prior to an overhead powerline being isolated and de-energised could not take place. Notwithstanding those difficulties, Mr Fitzgerald said that he was conscious that unless an attempt was made to replace the transformer that day that Mayfield could be without power for some time and he felt pressure to get the power back on at Mayfield.51 Mr Fitzgerald also gave evidence that he was concerned about installing the access permit earths at the worksite as he had originally intended because it may have created a risk that they would get tangled with the ladders that they would be using or the vehicles. He therefore considered it would be preferable to avoid any such risk by attaching the access permit earths to the known earth at Switch F393.52

[41] I note that the Respondent rejects any notion that the conditions in which the Applicants were working excused their failure to comply with the Electrical Safety Rules and other requirements. 53 Mr Fitzgerald stated on cross-examination that he chose time efficiency over compliance with the rules in completing the work on 21 April 2017.54 However, he also conceded that there was no practical reason why a working earth could not have been used on the day and Mr Weekley gave evidence to the same effect.55

[42] In replacing the transformer, the overhead power line that runs from the Switch F393 Pole to the Pole (where the transformer was to be replaced) was isolated, tested and proven de-energised. Mr Fitzgerald installed access permit earths and danger tags at the Switch F393 Pole. 56 The transformer that was being replaced had been isolated from the overhead power line.57
[43] Prior to performing the work of replacing the transformer at Mayfield Station, the Applicants had a conversation about performing the work. They decided not to use any working earths or any form of equipotential bonding. 58

[44] Mr Weekley worked on the pole, replacing the transformer. He worked within 700mm of the high voltage exposed conductors, in fact he concedes he came within about 600mm. 59 Mr Fitzgerald worked at a lower height on the pole than Mr Weekley. Mr Fitzgerald claims that he did not go any higher than Mr Weekley on the pole at any point.60 Mr Weekley claimed Mr Fitzgerald would not have come within 700mm of the high voltage exposed conductors.61

[45] Mr Campbell did not climb the pole during the day in question. His role was one of competent assistant and safety observer. 62 Mr Britten for the Respondent conceded that Mr Campbell was not permitted by the Electrical Safety Rules to install earths or bonds.63

[46] The Applicant’s completed the job of replacing the transformer at around 4.50pm. The three Applicants then left the area. As mentioned above, on the way back to Balranald, Mr Weekley had a motor vehicle accident and this ultimately led to an investigation of the work performed at Mayfield station on 21 April 2017. 64

[47] During the investigation into the motor vehicle accident, the Respondent was provided with photographs of the work being performed by the Applicants at Mayfield station on 21 April 2017 sometime in early May 2017. 65

[48] A photograph shows Mr Weekley working on the pole, replacing the transformer within 700mm of the high voltage exposed conductors. 66 As Mr Weekley was within 700mm of the high voltage exposed conductors, this triggered the requirements in section 7 of the Electrical Safety Rules, including part 7.3.3 and 7.3.4 and Section 3.2 of the Operational Procedure Equipotential and Personal Protective Bonding (Bonding Procedure).67 The effect of this is that it triggers the requirement to install working earths and equipotential bonding.68

Did Mr Weekley and Mr Campbell have a responsibility in respect to the installation of working earths and protective bonds or was only Mr Fitzgerald responsible for this? (Relevant to findings 1 and 2 in particular)

[49] Notwithstanding the fact that the three men decided after a conversation not to install working earths or equipotential bonding, the Applicant points out that it was only Mr Fitzgerald who was both the Access Permit Issuer and Access Permit Recipient. The Applicant accepts that Mr Fitzgerald was therefore responsible under the Electrical Safety Rules (see sections 5.2(I) and 5.3 (III), (V) and (VI)) for ensuring that working earths are installed. However, the Applicant submits that this is not a responsibility imposed by the Electrical Safety Rules on a person that signs on to an Access Permit. Similarly, it is conceded Mr Fitzgerald is responsible under the Electrical Safety Rules (see section 5.3(VIII)) for ensuring that earths and bonds, if required, are applied and removed but that is not a responsibility imposed on the other two men. On this basis the Applicants submit that findings 1 and 2 are properly made against Mr Fitzgerald but not against Mr Weekley and Mr Campbell. Further that the Electrical Safety Rules should not be read in the manner contended by the Respondent.

[50] The Respondent disputes that this obligation lay solely with Mr Fitzgerald as that is not consistent with the Statement of Agreed Facts and not correct in any event. The Respondent submits that each of the three Applicants had a responsibility to ensure that the work to be performed on that day was done in accordance with the Respondent’s policies including the Electrical Safety Rules and the Bonding Procedure. That this obligation falls on everyone working on the network. 69 The Respondent submits that both Mr Campbell and Mr Weekley readily accepted this in cross-examination.70 The Respondent submits a proper reading of the Electrical Safety Rules in totality makes it clear that everyone is obliged to work in accordance with those rules.71 In particular the Respondent submits that the suggestion that Mr Weekley and Mr Campbell should be absolved of responsibility for the failure to comply with the Electrical Safety Rules on 21 April 2017 should be rejected for the following reasons:

•  All three Applicants were required to comply with the Electrical Safety Rules;

•  All three Applicants were in receipt of an allowance pursuant to the Agreement which was paid because of their competence in and compliance with the Electrical Safety Rules;

•  All three Applicants had been tested on their working knowledge of the Electrical Safety Rules only 9 days before 21 April 2017 and all three Applicants had correctly answered questions that related to the requirement to use working earths in circumstances where an access permit earth could not be seen;

•  Mr Weekley and Mr Campbell both agreed that their respective positions required them to work in compliance with the Electrical Safety Rules;

•  The manner in which the work was done at Mayfield was a joint or collective decision taken by the three Applicants. It was not a case of Mr Fitzgerald ordering Mr Weekley and Mr Campbell to work in a particular manner. 72

[51] Considering the above, The Respondent submits that Mr Weekley and Mr Campbell were responsible for the breach of the Electrical Safety Rules on 21 April 2017 in the same manner as Mr Fitzgerald and his seniority does not absolve Mr Weekley and Mr Campbell in light of these facts. 73

[52] Further, the Respondent submits that it is equally important that the Applicants breach of the Electrical Safety Rules, both individually and collectively, was conscious and deliberate. The Applicants were aware of these rules at the time a decision was taken not to install working earths and the fact that in the circumstances with which they were dealing that day, the Electrical Safety Rules required the installation of working earths. The Respondent further submits that as the Applicant’s had been tested on this issue nine days before this is “hardly surprising” and is important because the Applicants cannot rely on inadvertence or human error as a reason for non-compliance. Rather, they knew the rules and decided not to follow them which underlines the seriousness of the misconduct engaged in by the Applicants. 74

Responsibility for completing the Access Permit and HIRAC and was the failure to properly complete the Access Permit and HIRAC a mistake or deliberate? (Relevant to findings 3 and 4)

[53] Prior to the performance of the work at Mayfield Station, Mr Fitzgerald, as the Access Permit Issuer and Recipient for that job, filled in by hand the following documents:

•  SWMS and HIRAC D647131; and

•  Access Permit no.103147g, sections 1-8. 75

[54] These documents contained information included by Mr Fitzgerald as follows:

•  The Access Permit stated at section 3 that access permit earths had been erected at Mayfield station;

•  The HIRAC had been completed at step 3 with ticks next to ‘weather conditions’ as an identified hazard.

•  The HIRAC had been completed at step 3 and step 4 with ticks next to ‘equipotential bonding’ as an identified control measure. 76

[55] These documents, with the information referred to above, were provided to Mr Weekley and Mr Campbell prior to commencing work at Mayfield Station and they both signed the Access Permit (at section 9) and the HIRAC (at step 5) having read the documents which had been completed by Mr Fitzgerald. 77 However, the documents were not correct as it is agreed that no earths were erected and no equipotential bonding was utilised in performance of the work at Mayfield Station. At the completion of the job, around 4.50pm, Mr Fitzgerald completed step 10 of the Access Permit and signed the document again.78

[56] The Applicant concedes that Mr Fitzgerald as the Access Permit Issuer and Access Permit Recipient had a responsibility to ensure the Access Permit was correct under the Electrical Safety Rules (see sections 5.2(III), (IV), (V) and 5.3(II) AND (V)). However, the Applicant does not concede that the same responsibility applies to Mr Weekley and Mr Campbell. Rather that the declaration that they make at section 9 of the Access Permit is:

“I hereby acknowledge having received instruction to carry out work on the mains and apparatus referred to in this Access Permit and I am satisfied that I will have no difficulty in keeping clear of live mains and apparatus.” 79

[57] The Respondent rejects this and states that all employees signing on to Access Permits and HIRACs have positive obligations to ensure the accuracy of these documents and this was accepted by Mr Weekley and Mr Campbell. 80 Further, the HIRAC itself makes it clear at step 5 that each person performing the work to be covered by the HIRAC has to confirm that they have participated in completing the document and they agree with the risk controls put in place.81 Indeed it is an agreed fact that it was the role of each of the Applicants to participate in the completion of a HIRAC.82 It was also agreed that it was the role of each of the Applicants to ensure that any work document they signed off accurately recorded the manner in which they had performed the work.83 In that context, the Respondent asserts that it is incorrect to suggest that all persons who participate in completing the HIRAC do not have a positive obligation to ensure its accuracy.84

[58] The Applicants submit that the errors on the Access Permit and the HIRAC were a simple mistake and reject any suggestions the errors were deliberate or the Applicants were joined in a conspiracy to misrepresent the manner in which the job was performed. 85 Mr Nardi conceded on cross-examination that it was not uncommon for minor mistakes to be made with these documents where either boxes have been missed or not enough detail is provided. These minor errors are discovered through an ongoing auditing process.86 Further that the Applicants have been honest throughout the investigation process and the process in the Commission and their consistent claims that the errors on the documents were a mistake should be accepted.87

[59] As to the specific issue of the HIRAC incorrectly recording that equipotential bonding was installed when it was not, this is finding 4 that was directed at all three Applicants. As stated above it is an agreed fact that it was the role of each of the three Applicants to participate in the completion of the HIRAC and to ensure that the document was accurate. 88 The Respondent submits that I should find that the failure to complete the HIRAC accurately was most likely done deliberately. The Respondent’s submissions on this point are as follows:

“Dealing first with Fitzgerald, his evidence as to the reason for ticking that equipotential bonding was a risk control that was to be (or had been) put in place is difficult to believe. He told Sim that he intended to use equipotential bonding but changed his mind. In his statement and in the witness box he changed his position and stated he had ticked it by mistake and he never intended to use it.

It is impossible to adequately reconcile this change of position. The better view, in light of Fitzgerald’s consciousness that the work was being done in breach of the ESR when it was actually being performed, is that the filling in of the HIRAC was deliberate to give the impression that the rules were being followed.

When Weekley and Campbell signed off on the HIRAC, the ‘ticks’ were already present on the document, and steps 3 and 4 (filled in) were directly above where they were required to sign, and this was in the context of them having discussed the performance of the work and having decided not to use working earths and equipotential bonding.

In light of this, it strains credulity that both Weekley and Campbell (and Fitzgerald) all made a mistake, in fact a series of them, in relation to the completion of this document as well as the Access Permit. The recording of their consent on this document showing that equipotential bonding had been or was to be utilised was most likely deliberate.

If it was not, then it was grossly negligent on behalf of all three Applicants. This was no minor procedural breach. These are important documents and employees are expected to take some care over them. These employees, on a best case for them, took no care at all.

As stated in the Respondent’s reply submissions of 4 December 2017, the inexplicable error in failing to complete the HIRAC accurately also puts the Applicants’ explanations regarding the Access Permit into perspective. The Commission is being asked to accept that three experienced and otherwise competent staff just happened to make a series of innocent mistakes in filling out critical paperwork all on the one day during the one job. The Commission should not accept these explanations.” 89

[60] In relation to why Mr Fitzgerald ticked on the HIRAC document that equipotential bonding was to be used Ms Fitzgerald conceded during cross-examination that he had given two diametrically opposed answers in that he told Mr Sim during the investigation that he intended to install equipotential bonding but did not and in his witness statement said that it was a mistake and that he had no intention of using bonding. 90 It was put to Mr Fitzgerald during cross-examination that he intended to tick the box because he understood that compliance with the bonding procedures required him use bonding on the job, to which he responded:

“The only reason I would say why it might have been ticked is it may have been ticked for the reason that a thought might have went through that we may have needed them, until we realised when we didn’t need the working earth, we also then wouldn’t require an equipotential bond.  That's the only reason why I could say that.

Okay, so - - -?---They were - look, I've ticked it by mistake.” 91

[61] As to the Access Permit, it is agreed that this was not properly completed as it recorded that working earths were erected at the worksite when they were not. This was the subject of finding 3 and it is specifically addressed to Mr Fitzgerald. Mr Weekley and Mr Campbell were not dismissed as a result of finding 3 and no adverse findings were made against them in relation to finding 3. 92 While there was some debate about whether or not the Applicant did rely on finding 3 against Mr Weekley or Mr Campbell the Respondent clarified during the final hearing that it does not rely on finding 3 against Mr Weekley and Mr Campbell.93

[62] The Applicant submits that finding 3 should not hold as if it is accepted that the evidence of Mr Fitzgerald was truthful, then that would lead to a conclusion that it was simply an error on the part of Mr Fitzgerald. 94 It is submitted that the Commission should reject any submission that the errors were deliberate or an attempt to misrepresent the manner in which the job was performed and that they can be described as minor procedural errors.95

[63] However, the Respondent submits the following:

“In relation to this finding, it is specifically addressed to Fitzgerald. He was the Access Permit Issuer and Recipient. This gave him certain primary responsibilities as set out in the Access Permit Procedure.

Put simply, Fitzgerald’s role in relation to the Access Permit was to properly record the steps being taken to allow work to be carried out in accordance with the ESR. It was also to:

(a) Determine and ensure working earths are applied as appropriate;

(b) Ensure that all persons working have read, understood and signed on, understanding which electrical apparatus is safe to work on and which is to be regarded as live. Fitzgerald failed to do either of the two tasks set out above.

Fitzgerald completed Sections 1-3 of the Access Permit well before he arrived at either F393 or Mayfield. He then explained why he decided to fill out parts of the form, including Section 3 (which clearly is required to be completed after the Access Permit Earth has been installed), well in advance of the work being performed. The best that can be said about that explanation is that it lacks any real sense. Fitzgerald understood what the document was for and in regards to Section 3 it is generally going to require writing a few words-hardly an onerous task.

In addition, after an Access Permit Earth was apparently installed at F393 Fitzgerald failed to record that on the Access Permit. As with anything to do with the Access Permit and the HIRAC (and this is a position also taken by Weekley and Campbell), the position of Fitzgerald is that the clear and fundamental errors in this document were simply an oversight or a mistake.

The Respondent does not regard this explanation as credible, particularly in light of the HIRAC document referred to below. Fitzgerald showed a disregard for the need to accurately record the manner in which the work was being performed. This is particularly egregious in circumstances where:

(a) The Access Permit itself refers to working in accordance with the ESR-see paragraph 46 above; and

(b) The work that was being performed was being performed in a manner in obvious breach of those same rules.

In all the circumstances, where Fitzgerald had to prepare and then re-visit this two page document on at least three occasions during the afternoon, it defies belief that he was not aware of the inaccuracy in the document in Section 3. In light of the conscious decision to also fill in parts of the HIRAC that suggested equipotential bonding was required, the better view is that the entry regarding an Access Permit Earth at 4840 was done deliberately to give the impression that an Access Permit Earth has been installed at the worksite. If it wasn’t done deliberately, then Fitzgerald showed a disturbing lack of care and attention to the manner in which he completed the document.” 96

[64] The Applicants submit that the Commission should reject the Respondent’s submission that the Applicants were not credible and were not honest which would enable a finding that finding 3 and finding 4 was a simple mistake with the paperwork. 97

[65] In particular it is submitted that the Applicants have consistently told the truth and admitted that the manner in which the job was performed was inconsistent with the Electrical Safety Rules, including on the occasions set out below:

•  When Mr Duggan first raised the issue with the Applicants;

•  During their respective interview with the investigator, Mr Sim; and

•  In their evidence before the Commission.

[66] Based on this, the Applicants submit that the Commission can readily accept that it was the Applicants honesty that provided a proper and reliable basis for Mr Sim to make adverse findings against the Applicants and that Mr Sim correctly accepted that he considered the Applicants were honest in their dealings with him. 98 For instance, the Applicant submits that Mr Weekley conceded that he was within 600mm of the high voltage exposed conductors and this concession was not forced out of him on cross examination. Rather, Mr Weekley had already readily and honestly accepted that he was within about 600mm from the high voltage exposed conductors.99 The Respondent submits that this claim of honesty has to be considered in the context of the photograph which meant that the Applicants had little choice but to make the concessions. For example, it is apparent from the photograph that Mr Weekley is within 700mm of the high voltage exposed conductors and it would be folly to assert otherwise.100 The Respondent also points to a number of examples of considerable changes in the evidence of the Applicants from the time that they made their statements to when they gave oral evidence. Based on this the Respondent submits that “…the question of each of the Applicants credibility is problematic”.101

[67] It is an agreed fact that at no stage prior to 29 June 2017 did any of the Applicants communicate to the Respondent that they had failed to utilise equipotential bonding or working earths on 21 April 2017. Further, at no stage did any of the Applicants make any attempt to advise the Respondent that the HIRAC and Access Permit had been completed inaccurately or raise a Total Safe in relation to the work performed on 21 April 2017. 102

The failure to report the incident (raise a Totalsafe) (relevant to finding 5)

[68] In regards to the Applicants failure to raise a Total Safe, it is conceded that this finding is made out against all three Applicants. 103 It is also conceded that this was a breach of procedure with the potential to cause illness, injury or environmental harm.104 In this regard, the Respondent submits:

“Noting that the three Applicants knew at the time they were working in breach of the ESR, and were all well aware of the primacy given to compliance with its stated safety rules by the Respondent, this was a substantive failure to meet the requirements of their employment. Even if it were to be said that none of the Applicants turned their mind to completing a TotalSafe and consciously said ‘I’m not going to do that’ they still failed individually and collectively to meet a requirement of their employment.

There is no reason why a breach of finding 5 by Weekley and Campbell should be treated any less seriously than the same breach by Fitzgerald.” 105

What was the level of risk of harm to the Applicants (including electric shock or electrocution) on the Mayfield job?

[69] Mr Jenner states that minimising and managing the inherent and potentially catastrophic risks arising from working with electrical power, including specifically the risk of electric shock and/or electrocution requires strict compliance with the Respondent’s safety rules, policies and procedures. 106

[70] The Applicants accept that the nature of the work being performed by them exposed them to risk of electric shock or electrocution and that this risk was contingent upon: the de-energised high voltage exposed conductors that Mr Weekley was working near becoming re-energised and if one or more of the Applicants were to touch the high voltage exposed conductors at the same point in time that it became re-energised. 107

[71] The Applicants also accept that the de-energised high voltage exposed conductors could have become re-energised for the following two reasons: a lightning strike on the part of the overhead power line that runs from the Switch F393 Pole to the Pole the Applicants were working on or if somebody manually re-energised the overhead power line at the switch F393 Pole (by closing the switch at that pole). However, the Applicant submits that this would have likely required the use of a telescopic stick and for that person to ignore the danger sign that was attached to the Switch F393 Pole. 108

[72] The Applicants claim that the Commission cannot accept on the evidence before it that there were other factors that could have re-energised the de-energised high voltage exposed conductors. 109

[73] Having regard to the evidence of the Applicants, 110 Mr Nardi111 and Mr Jenner112 the Applicant submits that I should find that the likelihood of the de energised high voltage exposed conductors becoming re-energised was extremely unlikely but not impossible.113 Further that in the event re-energisation did happen the evidence is that the volts would seek to travel to earth by the easiest path which would have been the access permit earth at the switch F393 Pole or the other 2 transformers at Mayfield and thereby away from where the Applicants were working.114

[74] A further consideration relating to the risk of harm to the Applicants submitted is that for harm to have occurred would have required one or more of the Applicants to make contact with the high voltage exposed conductors and that in doing the Mayfield job it was “unnecessary” for Mr Weekley and Mr Fitzgerald as experienced powerline workers to make contact with the high voltage exposed conductors. 115

[75] There is no acceptance by the Applicants that the way the work was performed was unsafe. Mr Weekley, an experienced powerline worker, maintains that the work was done safely, not in conformance with the rules, but safely. 116 During cross-examination Mr Weekley stated that the measures that were put in place that day were in his eyes, safe117 and that applying working earths or bonding at the job site was of no relevance to their safety.118 He did not agree that the implementation of the Electrical Safety Rules on the day would be the best way to minimise any risk to himself or the other Applicants and was clear in his evidence that on the day and even to the day of the hearing they believed that they had a safe work site.119 Mr Fitzgerald also gave evidence that he believed that they were safe in the way in which the work was conducted.120 Mr Campbell did not believe the manner in which the job was performed was unsafe and gave evidence that they did not make a conscious decision to depart from any safety rule and they did what they thought was right at the time.121

[76] The Applicants accept that the rules should be followed and that the Respondent’s view is that the insulation of working earths and bonds is a control mechanism against the risk of inadvertent re-energisation of the line. 122 However, they did not accept that “the bonds and the earths would have made a shred of difference in the circumstances they were in” based on their experience and decades working with live electricity and working on or near high voltage exposed conductors.123

[77] The Applicants drew attention to the fact that Mr Jenner accepted that the risk of harm to the Applicants was medium on the application of the Respondent’s own document (Health Safety and Environment Manual Risk Management) that it uses and encourages its employees to use to manage risk (and is the framework used to complete documents such as HIRACS). 124

[78] The Applicants also submit that the Commission cannot safely accept that the use of working earths and bonds would have protected the Applicants from the risk of harm. This was based on evidence that if there was a direct lightning strike on the pole while the Applicants were working on it that there was a high probability of a fatality or serious injury and that a working earth or bond would not have offered much protection. Mr Nardi gave an example of a worker suffering an injury (burns) despite the use of bonds and a working earth. 125

[79] In contrast, the Respondent sets out its position on the risk of electrocution on the Mayfield job as follows:

“There are different ways in which a de-energised high voltage exposed conductor might become inadvertently re-energised. These include:

(a) A lightning strike, noting that a lightning strike upstream could cross (jump) an isolation point such as F393. It is noted that there had been lightning in the area the night before;

(b) Manual re-energisation by someone at F39342;

(c) A car hitting a pole upstream;

(d) By the use of Generators or solar installations by customers on the same SWER line.

It may be accepted that any of the foregoing events might occur even if they are unlikely to occur. The precise reason for strict adherence to the policies and rules referred to in the proceedings is to guard against events that might only have a small chance of occurring but which could have catastrophic consequences.

The Applicants have not in these proceedings sought to challenge (on a technical basis or otherwise), the correctness or reasonableness of the ESR, Bonding Procedure, and other rules promulgated or adopted by the Respondent and tendered into evidence in the proceedings. They have not challenged the need for strict adherence to the foregoing.

In those circumstances, the suggestion that working earths or bonding may have been of no or little use to the Applicants if an inadvertent re-energisation had occurred is both irrelevant and unhelpful. It may be that in the event of a direct lightning strike on the pole at 4840 that working earths and equipotential bonding may not have assisted the Applicants but, in any situation where re-energisation occurred, working earths and bonding would be of assistance. There is no logical, scientific or evidentiary basis to suggest otherwise.” 126

[80] Mr Jenner also gave evidence that the inherent risks associated with work undertaken on the Network, and reasons why safety is taken so seriously by the Respondent where tragically highlighted in September 2013 when an incident in NSW resulted in the death of an electrical worker performing work on the network. 127 Mr Nardi’s evidence was that this was as a result of the inadvertent re-energisation of a de-energised line.128 The Respondent submitted that the risk the Applicants were exposed to in this incident was the same risk that arose in that incident which caused a fatality.129 In response, the Applicant submitted that the Respondent failed to admit that employees involved in the Hanwood Incident (Hanwood is discussed later in the decision) were exposed to the very same risk and were only issued with an Expectations Letter, which I deal with later in this decision.130

Was there a failure to Act in accordance with Essential Energy’s Code of Conduct, in particular to act ethically at all times and in relation to safety excellence and failure to ‘Always control your work site’ in accordance with the Electrical Safety Rules? (Relevant to findings 6 and 7)

[81] In relation to the failure to act in accordance with the Code of Conduct, in particular to act ethically at all times and in relation to safety excellence the Applicant submits that finding 6 does not constitute a valid reason for dismissal in relation to any of the three Applicants. It is accepted that by failing to comply with the Electrical Safety Rules Mr Fitzgerald’s actions were not consistent with the value of safety excellence. However, the Applicant submits that it is not accepted that the Applicants failed to act ethically as they have been consistently honest in the matter. 131

[82] In relation to the failure to ‘Always control your work site’ in accordance with the Electrical Safety Rules it is conceded that this finding is made out in respect to Mr Fitzgerald but not in relation to Mr Weekley and Mr Campbell. 132 In relation to Mr Weekley and Mr Campbell it is submitted that the generic nature of finding 7 is such that it is simply a reiteration of findings 1 and 2 and they rely on the submissions in response to those findings and submit that for those reasons finding 7 does not provide a valid reason for dismissal.133

[83] The Respondent submits that all three Applicants, having correctly answered questions about the Electrical Safety Rules nine days before the incident consciously decided not to follow the rules as they related to using working earths and bonding which amounted to a breach of the following core values:

•  Safety excellence, including to put safety as the number one priority;

•  Act with integrity, including to follow the rules and speak up. 134

[84] The Respondent submits that the failure to follow the rules and treat safety as the number one priority means they have breached the Code of Conduct and failed to control their worksite (with reference to the risk of a de-energised high voltage exposed conductor becoming re-energised) 135 and that by not complying with the Electrical Safety Rules and Bonding Procedure, they created avoidable risks of harm.136

[85] The Respondent also submits that whilst it is said that the Applicants have been consistently honest that this submission fails to acknowledge that the Applicants did not raise any aspect of the job with management and only admitted certain breaches once confronted with photographic evidence. Further, that they failed to meet their obligations under the Code of Conduct by failing to take any steps to ensure that the information recorded in the Access Permit and HIRAC was accurate. 137

The subsequent investigation of the events of 21 April at Mayfield and the process leading to the dismissals

[86] On or about 29 June 2017, the three Applicants were spoken to by Mr Duggan, an Area Manager for the Respondent. On or about 20 July 2017, the events of 21 April 2017 described above were brought to the attention of senior management including Mr Jenner. Mr Jenner, together with Mr Nardi, authorised an investigation to take place into the events of 21 April 2017 at Mayfield station. 138

[87] Mr Jenner’s evidence was that four managers were disciplined in relation to the lack of escalation of the incident in a timely manner and not effectively mitigating the risks that were posed to the Applicants and the business by them continuing the work on the network. 139 The Respondent treated this incident seriously and a Senior Manager was also summarily dismissed for his failure to properly report/escalate the matter so that it could be properly investigated and dealt with.140 Mr Jenner’s evidence was that three other employees received a first and final warning.141

[88] On or about 24 July 2017, each of the Applicants were stood down and also issued with letters notifying them that an investigation was being undertaken. The investigation letters to the Applicants made seven allegations that were to be the subject of investigation. 142

[89] On or about 25 July 2017, each of the Applicants were interviewed by the investigator Mr Sim. 143 During the interview Mr Fitzgerald admitted that working earths should have been used to comply with the Electrical Safety Rules.144 Mr Fitzgerald and Mr Campbell both admitted the voltage of the HV line going to where the faulty transformer was, was 19.1kV.145 This required the use of equipotential bonding to reduce the risk of different potentials in the event of inadvertent re-energisation of that HV line. Mr Fitzgerald admitted during the interview that they should have used equipotential bonds.146

[90] On or about 2 August 2017, Mr Sim provided his report to senior management. On 4 August 2017, Mr Jenner wrote to each of the Applicants asking them to show cause why they should not be dismissed in light of the findings of alleged misconduct which the Respondent considered had arisen from their conduct and the seven findings made. Each of the Applicants took the opportunity to make written representations on their own behalf in response to the show cause letters. Each of the Applicants were dismissed for serious misconduct on 15 August 2017. 147

Was the decision to dismiss the Applicants consistent with the Respondents own Policy?

[91] The Respondent has a Fair and Just Culture Policy 148 which Mr Jenner applied when making the decision to terminate the Applicants employment. Mr Jenner determined that the Applicants conduct was Reckless when applying the policy. However, the Applicants submit that the conduct should have been determined as At Risk and not Reckless. The “right response” for conduct determined as at risk under the policy is not dismissal. Also, the right response for conduct determined as Reckless can be sanctions other than dismissal.149

[92] In particular the Applicants submit that Reckless behaviour is defined in the decision support tool of the Fair and Just Culture Policy as “Deliberately breaking rules with a disregard for consequences to self or others (personal gain, recklessness)” whereas At Risk behaviour is defined as “A choice: risk believed to be insignificant or justified, reoccurring mistakes, routine violation or should have known better (intentional mistake, violation)”.

[93] The Applicants submit that the evidence does not support a finding that the Applicants had a disregard for the consequences to themselves or others, nor that they were motivated by personal gain and that questions 1,2 4 and 5 in the decision support tool that relate to a determination that the conduct was reckless cannot be answered as “yes”. Further that the evidence supports a finding that the Applicants thought the risk was insignificant or justified. Further, it is submitted that it is evident that questions 1 and 2 that relate to a determination that the conduct was At Risk should be answered “yes”. These questions are as follows:

•  Question 1: Did the employees depart from known and established rules or procedures thinking there was a better way of completing the job?

•  Question 2: Did the employees think there was a benefit for the task, project, or company if they took a short cut to get the job done more quickly, easily, or efficiently?

[94] The Applicants accept that question 3 which is “did the employees knowingly breach the code of conduct?” cannot be “unequivocally answered no”. This question relates to a determination that the conduct was Reckless. Nevertheless, the Applicants submit the conduct is best described as At Risk. The Applicants also submit that the risk of harm to the Applicants is low to medium and that I should not find that working earths and bonds would have protected the Applicants from that harm. 150

[95] In contrast, the Respondent submits that:

“The use by Jenner of the Decision Support Tool contained in the ‘Fair and Just Policy’ does not assist in making an argument that the dismissals were harsh because the Respondent somehow ‘got it wrong’.

Jenner explains in some detail the process he went through prior to reaching a decision to dismiss the Applicants. That process was thorough, rational and fair. He did use the Decision Support Tool in that process but it was only a part of that process and only a guide to him. It did not dictate the decisions that he made.

In any event, Jenner determined that the behaviour of the Applicants was ‘reckless’ because it was deliberate. The evidence… shows that the Applicants’ misconduct was deliberate. They consciously flouted the rules for no proper reason. In addition, in relation to the completion of the Access Permit and the HIRAC, if the Applicants’ errors in those documents were not deliberate, then they were recklessly indifferent to the accuracy or otherwise of those documents. In all the circumstances the conclusions reached by Jenner in using the Decision Support Tool were objectively reasonable.

Finally on this point, even if the Commission took a different view about the proper categorisation of the Applicants’ conduct in the context of the Decision Support Tool, that does not make the dismissals harsh. The role of the Commission in exercising its jurisdiction about whether there was a valid reason for dismissal and whether the dismissals were harsh, unjust or unreasonable, is to take into account all of the evidence and decide those primary matters for itself.” 151

Evidence as to alleged differential treatment of employees

[96] The Respondent submits that it has taken a firm and consistent view to safety matters and compliance with policies because of the ever present possibility of catastrophic events including death. 152 The Applicant submits that the Respondent has not been consistent in its disciplinary responses to safety breaches.

The incident in early 2016

[97] Mr Jenner gave evidence that he was responsible for determining the appropriate disciplinary outcome for a number of workers involved in an incident in early 2016 where they failed to use working earths while working on a 66kv line (among other safety breaches). Mr Jenner stated that he took into account the workers’ conduct, his knowledge of the Electrical Safety Rules and the fact that the relevant workers had undertaken training on these rules and determined that dismissal of the employees was the appropriate outcome. 153 Mr Jenner’s evidence was that he was mindful of this event and need to be consistent when he was considering the appropriate outcomes for the Applicants in this matter.154

[98] The Respondent refers to the outcome of the above incident and the disciplinary approach taken in this matter, specifically the four managers who were disciplined and the most senior of those employees who was summarily dismissed (in the same manner as the Applicants) as demonstrating consistency. 155

The Hanwood incident

[99] The Applicants point to an example of employees of the Respondent working on a job near Griffith on 4 December 2016 who breached the Electrical Safety Rules by failing to install a personal protective bond (the Hanwood incident) and therefore were exposed to the same level of risk as the Applicants but were issued with the lowest level of disciplinary action (an Expectations Letter). 156 The Applicants summary of the facts of the Hanwood Incident is useful and set out below:

“•  The Respondent investigated an allegation that the relevant employees had breached the ESRs by failing to install working earths;

•  2 or so of the employees told the investigator that they couldn’t see the access permit earths (which would have triggered a requirement under the ESRs to also install working earths);

•  3 or so of the relevant employees told the investigator that they could see the access permit earths, which were about 500 metres from the work site (which meant there was no requirement under the ESRs to also install working earth and no adverse finding could be made in relation to this specific allegation);

•  The investigator conducted a re-enactment and found that he couldn’t see the access permit earths;

•  Notwithstanding the re-enactment and the views of the employees who said that they could not see the access permit earths, the employees in question were given the benefit of the doubt in relation to the specific allegation concerning working earths;

•  The Respondent determined that the relevant employees had breached the ESRs by failing to install a personal protective bond; and

•  The relevant employees were not dismissed. Rather, the relevant employees were issued with an Expectations Letter. 157

[100] The Applicant points out that an Expectations Letter is the lowest level of disciplinary action available to the Respondent and cannot be reconciled with the action taken against the Applicants in this matter. The Applicant claims that it is also evident that the HIRAC that relates to the Hanwood Incident is also incorrect because the box for equipotential bonding was ticked on that form and was not in fact used. However, the investigator of the Hanwood Incident was not asked to look at that factor again providing a contrast with the circumstances in this case. Further that Mr Nardi’s evidence on this point was completely unsatisfactory because he continually engaged in unfounded speculation to avoid admitting that the HIRAC contained an error. 158

[101] The Respondent submits that the Hanwood Incident was substantially different in the following ways:

•  Two employees were working aloft in an elevated work platform (EWP) and, unlike the Applicants, could see an Access Permit Earth that had been erected some 550 metres away;

•  A resource supervisor (that is someone holding the same position as Mr Fitzgerald), attended the scene and determined that working earths and personal protective bonding should be installed. In other words, the resource supervisor, being of the view that the ESR were not being implemented, did the exact opposite of Mr Fitzgerald and took immediate steps to bring about compliance;

•  During the investigation, the two employees working aloft were consistent in their view that they could see the Access Permit Earth. They agreed that bonding had not been used on that pole (12886) prior to the resource supervisor attending but it was also noted that there were extenuating circumstances in that the EWP had broken down some 15-20 times that day;

•  The finding, on the issue of whether the Access Permit Earth could be seen, was inconclusive. Two employees advised that they could see the Access Permit Earths while three others advised that they could not see the Access Permit Earths, only the yellow insulating mat on the low voltage below. It was the case, however, that no personal protective bonds had been applied until the resource supervisor attended, noting that the leading hand at the site had been of the view that the personal protective bonding was on but became distracted by the issues with the EWP;

•  There was no safety observer at the site. This is the role played by Campbell at Mayfield on 21 April 2017. Had there been a safety observer at Hanwood it may have assisted in compliance regarding the application of personal protective bonding;

•  The re-enactment of the investigator in relation to whether the employees could see the Access Permit Earths involved installing only one earth whereas multiple earths had been used on 4 December 2016 and therefore more likely would have been visible;

•  The alleged failures in completion of the HIRAC were not of the same nature as at Mayfield because the HIRAC in this case applied to more than one site, the HIRAC is a working document that is amended from time to time and bonding was eventually applied at another of the sites covered by the HIRAC;

•  A view was taken by the Respondent that the employees here were not consciously and deliberately ignoring or beaching the rules, had been attempting to comply regarding the Access Permit Earth, and taking all the circumstances into account, did not deserve to have their employment terminated.” 159

[102] The Respondent says that the claim that Mr Nardi’s evidence on this point was evasive should be rejected as the claim that he was evasive was not put to him. 160

The Great Southern incident

[103] The Applicant also drew attention to a second incident concerning work performed by an Accredited Service Provider, Great Southern Electrical Pty Ltd (Great Southern) in Narrandera in March 2017. Again the key facts in this matter are usefully set out in summary form by the Applicant as follows:

•  Great Southern are required to comply with the ESRs;

•  The Respondent investigated allegations that employees of Great Southern had breached the ESRs by failing to install bonds and that unauthorised workers had performed work;

•  The Respondent determined that on 3 occasions over the course of 21 & 22 March 2017, employees of Great Southern failed to install bonds and accordingly had breached the ESRs;

•  The Respondent determined that unauthorised workers had performed work on the network; and

•  Great Southern adopted a very defiant response to these matters.   

[104] Shortly thereafter on 28 April 2017, Great Southern engaged in a further breach namely that an unauthorised worker performed work on the network. The action taken by the Respondent was to raise the issue with the relevant department, engage in discussions with Great Southern and suspend the relevant employee (of Great Southern) until his qualifications were renewed. 161

[105] The Applicants do not accept that the Respondent applied the toughest stance available and that Host employers routinely deny employees of other company’s access to their sites. The Applicant claims the Respondent could have applied tougher sanctions on Great Southern. 162

[106] In response the Respondent submits that:

“In relation to the Narrandera incident involving employees of an Accredited Service Provider (ASP), the Respondent relies upon the evidence of Jenner. As Jenner says himself, the Respondent has taken every step available to it in relation to this particular ASP. If they had been contractors within the Respondent’s control then those persons would not be working on the network.” 163

The Facebook Post on 25 July 2017

[107] The third incident the Applicant points to concerns a Facebook post on the Essential Energy Facebook page made on 25 July 2017. The Facebook post is described in Mr Main’s first witness statement. 164 The post by Rachel Hussell, Manager Community Relations at Essential Energy contained text and two photographs. The text was as follows:

“Who wouldn’t want to join our crew?

Thanks to those who made it to the Port depot for our photo!”

[108] A number of employees of the Respondent commented on the post. On 26 July Mr Nardi commented “Love it. Well done!”. On 28 July Mr Clint Collins who works in humanising technology for the Respondent commented “Nice work team!!” and Mr Chris Daltz an Electrical Safety Manager for the Respondent commented “Nice photo – a shame we can’t use it externally – hard hats must be worn around operating plant.. Would have been OK if the MEWP was just a backdrop”. On 4 August Mr Main commented “Absolutely Chris don’t remember reading the safety alert about this”. 165

[109] The photographs show a number of employees not wearing hard hats standing in front of a vehicle with a Mobile Elevated Work Platform. In one of the photographs a worker in the Mobile Elevated Work Platform is holding a sign which reads “Join our crew” at his chest level and in the other photograph the worker in the Mobile Elevated Work Platform is holding a sign which reads “Join our crew” above his head. Mr Main’s evidence is that the sign does not appear to be secured. 166

[110] Mr Main’s evidence is that the photographs evidence a number of workers being directly under the bucket of the Mobile Elevated Work Platform and accordingly in the “drop zone” which has not been secured (usually by witches hats). 167 Mr Nardi gave evidence that the drop zone isn’t a defined area but agreed that “if someone is working aloft and drops something that might hit you” you are in the drop zone. His evidence was that the potential is low for an employee in the photo to be in the “drop zone” due to the location of the basket but agreed that if the sign was dropped there is potential for that to fall onto the head of one or more employees on the ground.168 Further, Mr Main’s evidence was that the photographs show that the poles in the pole rack are not secured with chocks, are skewed and not lying square, it is unclear whether a HIRAC was completed prior to the photograph and unclear whether the incident was reported on TotalSAFE.169

[111] The Applicant submits that Mr Main’s unchallenged evidence sets out a number of breaches of the Respondent’s rules that can be identified from the Facebook post. These breaches include breach of the Network Fatal Risks, failure to complete a HIRAC and failure to report the incident via TotalSAFE. Further, that the essence of Mr Nardi’s evidence was that there were no breaches as alleged by Mr Main because the relevant rules did not apply. Mr Nardi said the rules don’t apply because the photographs depict “a coordinated staged site”. 170

[112] The Applicants describe Mr Nardi’s evidence on this point as completely unsatisfactory and unreliable and the evidence was self-serving to avoid criticism that he failed to speak up and challenge unsafe behaviour thereby breaching the Code of Conduct. 171 Mr Jenner disagreed with Mr Nardi’s suggestion that the rules do not apply because workers are participating in a coordinated stage site.172 Ultimately, Mr Nardi accepted that a HIRAC should have been completed and the incident should have been reported on TotalSAFE.173 While the Applicants concede the conduct in question in this example is different to that involving the Applicants, it nevertheless still involves a serious breach of the Respondents rules which could have resulted in serious injury or fatality.174

[113] The Respondent submitted that the Facebook post issue simply does not provide any factual basis for making an argument around proportionality. This was a promotional photograph and not a worksite. It is certainly not work on or near the network. That is the reason Mr Nardi described the site as a coordinated stage site, which is not a defined term in the Electrical Safety Rules or anywhere else in the Respondent’s policies or procedures, notwithstanding the Applicants’ attempts to elevate the status of the phrase to something it is not. The Respondent submits it was simply a description given by Mr Nardi to what had occurred for the photograph and in this context the criticisms of Mr Nardi are misplaced and unfair. 175

Impact of the dismissal
[114] The Applicants submit the following matters, along with other matters, render the dismissals unfair:

“The Applicants have all sustained significant financial loss as a result of being dismissed:

•  Mr Fitzgerald was earning $1,907.25 (gross) per week in his position with the Respondent. Since being dismissed, Mr Fitzgerald has only been able to find 2 weeks work in a local club;

•  Mr Weekley was earning $1,609.97 (gross) per week in his position with the Respondent. Since being dismissed, Mr Weekley has obtained some work as a rouseabout for a shearer. In that role, he is earning about $700 less per week; and

•  Mr Campbell was earning $1,532.68 (gross) per week in his position with the Respondent. Mr Campbell has commenced employment with Forestry NSW and is now paid $1,233.65 (gross) per week. Prior to that, Mr Campbell did some casual farm work.

The ongoing effect of dismissal will be particularly acute on Mr Fitzgerald and Mr Weekley. Given their age, location and length of service in the one industry and incapacity to perform physical work (which will only become more pronounced), the Commission can safely conclude that they will struggle to find any employment (in the case of Mr Fitzgerald) or comparable employment (in the case of Mr Weekley).

Summary dismissal has meant that Mr Campbell did not receive his accrued long service leave. If Mr Campbell’s employment had been terminated for reasons other than serious misconduct, Mr Campbell would have received his accrued long service leave.” 176

[115] The Respondent submits the following in relation to the impact of the dismissal on the three men:

“It is acknowledged that any dismissal from employment will have an impact on the dismissed employee. That is acknowledged in these cases, and it why the Respondent takes considerable care and effort in reaching the conclusions that is does.

Ultimately, this is one factor relevant to the assessment of the potential harshness of the dismissals. It cannot be anything more than one of the many factors to be considered otherwise no dismissal would ever stand.

Here, the impact of the dismissals must be treated as a lesser factor than the gravity of the Applicants’ misconduct because these employees chose to breach the most important policies that the Respondent has, in circumstances where they were provided not only training but also were paid an allowance to do what they chose not to.

Whilst the Commission is obliged to consider mitigating factors raised by the Applicants, any issue of such matters and the question of harshness need to be considered in the context of the three Applicants having been dismissed for serious misconduct for breaches of safety rules. The mitigating factors raised should not be regarded as being so significant as to justify a finding that any of the dismissals were harsh.

To the extent that the Applicants rely on their length of service as a relevant mitigating factor, that same length of service, particularly in the cases of Weekley and Fitzgerald, is a less persuasive factor in each case because of the circumstances of their respective dismissals. Each were dismissed for, inter alia, breaches of cardinal safety rules. Fitzgerald was the depot supervisor and an Access Permit Recipient and Access Permit Issuer. Weekley was a long serving powerline worker who was also an Access Permit Recipient and Access Permit Issuer. They were in leadership positions in the context of ensuring compliance with safety rules for work being undertaken on and near the Network. Seen in this context, their length of service should not be a significant factor in their favour.” 177

The Applicants previous work history

[116] The Applicant submits that Mr Fitzgerald had an excellent work record. He had never received a warning or any other disciplinary action during his 36 years of employment and consistently received positive feedback about his work performance from Mr Duggan, his direct supervisor. 178

[117] The Applicant submits that Mr Weekley also had an excellent work record and was employed by the Respondent (or one of its predecessors) for a total period of 23 years over 3 stints. His most recent engagement was for a period of about 14 years. It is submitted that firstly, the Commission should accept Mr Weekley’s evidence (on which he was not challenged during cross-examination) that he had never received a warning or any other disciplinary action during his employment with the Respondent. The Commission should reject the evidence of Mr Jenner and Mr Nardi that Mr Weekley had been issued with an Expectations Letter (the lowest level of disciplinary action under the Disciplinary Action Policy and the Company Procedure (Our People) Disciplinary Action and isn’t a warning as such). The Applicant submits that the evidence for the Respondent on this point cannot be relied upon to make a finding that the Expectations Letter was issued to Mr Weekley or that he was otherwise counselled/disciplined in relation to the incident in question. Further that the Respondent could have further challenged Mr Weekley’s evidence on this point by calling Mr Duggan to give evidence. Secondly, that Mr Weekley consistently received positive feedback about his work performance from his direct supervisor, Mr Fitzgerald. Indeed, Mr Fitzgerald described Mr Weekley as one of the best Powerline Workers in Australia. 179

[118] Mr Campbell was employed as an Electrical Worker by the Respondent for a period of about 6.5 years. The Applicant submits that Mr Campbell had an excellent work record because he had never received a warning or any other disciplinary action during his employment. Mr Campbell consistently received positive feedback about his work performance from his direct supervisor, Mr Fitzgerald. 180

[119] The Applicants were based at the Balranald Depot, which is a small 6 person depot in regional New South Wales. Mr Fitzgerald as the Resource Supervisor was the most senior employee at the Balranald Depot. The Applicant submits that the Commission can find that the Applicants and the workers at the Balranald Depot worked productively and safely and that Mr Fitzgerald’s unchallenged evidence is that Mr Duggan described Mr Fitzgerald as a Safety Champion. 181

Consideration

What was the level of risk of exposure of the Applicants to electric shock or electrocution on the Mayfield job?

[120] It is convenient to deal with this point first. A consistent theme of each of the Applicants is that while they conceded they did not follow the Electrical Safety Rules, they all maintain that nevertheless they were working safely at Mayfield.

[121] The competing arguments on this point are set out above. The risk was of inadvertent re-energisation while the Applicants were working on the site. There was extensive evidence as to the possible sources or means by which re-energisation could occur and the likelihood or otherwise of these events occurring. For example, lightning strikes, a car crashing into a pole or manual re-energisation. There was also evidence about where the electricity was most likely to travel in the event of an inadvertent re-energisation.

[122] To a certain extent, the evidence on this was somewhat of a distraction from the key issue. Ultimately, the Applicants concede that the nature of the work being performed by them exposed them to risk of electric shock or electrocution and that this risk was contingent upon: the de-energised high voltage exposed conductors that Mr Weekley was working near becoming re-energised and if one or more of the Applicants were to touch the high voltage exposed conductors at the same point in time that it became re-energised. 182

[123] The precise reason for strict adherence to the policies and rules referred to in the proceedings is to guard against events that might only have a small chance of occurring but which could have catastrophic consequences. The Respondent points out that the Applicants have not sought to challenge, on a technical basis or otherwise, the correctness or reasonableness of the Electrical Safety Rules, Bonding Procedure, and other rules and they have not challenged the need for strict adherence to these rules. 183

[124] The Respondent also makes the following submission with which I agree:

“In those circumstances, the suggestion that working earths or bonding may have been of no or little use to the Applicants if an inadvertent re-energisation had occurred is both irrelevant and unhelpful. It may be that in the event of a direct lightning strike on the pole at 4840 that working earths and equipotential bonding may not have assisted the Applicants but, in any situation where re-energisation occurred, working earths and bonding would be of assistance. There is no logical, scientific or evidentiary basis to suggest otherwise.” 184

[125] In my view, this is the key point. A risk of electrocution should be regarded as imminent when one is working on the electricity network unless the mandatory rules are being followed. The three workers continue to claim that the work site at Mayfield was safe. It quite clearly was not as the rules to apply working earths and bonds were not followed. The Applicants accept that they should have been. It is senseless to then submit that they were not needed because they felt that they are working safely. Even more ludicrous is the submission that the workers are experienced workers and would not touch an exposed conductor on purpose. It seems clear that they would not do so; however, the point is that Mr Weekley was close enough that he could have made contact. That is the risk which triggers the requirement to apply measures to reduce the risk of electrocution. The Applicants did not do so and thereby simply waived the employer mandated system to reduce the risk of electrocution. It follows that they were not working in a safe manner and their actions put Mr Weekley, at least, at risk of electrocution.

[126] The evidence supports a finding that re-energisation was extremely unlikely but not impossible. However, the risk of electrocution could be catastrophic leading to serious injury or death. There were mandated measures to be applied to minimise that risk. They were not taken. This is the manner in which the level of risk should be assessed. It was not for the Applicants to make their own assessment that the working earths and bonds were not needed. They were needed because the rules, which are not challenged, mandated that they are needed.

Are findings 1 and 2 properly made against Mr Campbell and Mr Weekley?

[127] It is conceded that these findings are properly made against Mr Fitzgerald. The essence of the Applicants submission as to why the findings should not hold in respect to the other two men is that they were not the Access Permit Recipient (Mr Fitzgerald was) and therefore they were not responsible for installing the working earths and bonds. In respect to Mr Campbell specifically, he was not qualified to do so. With one exception (dealt with below) I do not accept this submission. I generally agree with the submissions of the Respondent that all three Applicants were required to comply with this aspect of the Electrical Safety Rules and they all understood what was required to be done. The conditions in which the Applicants were working does not excuse their failure to comply with the Electrical Safety Rules and other requirements. 185 Mr Fitzgerald stated on cross-examination that he chose time efficiency over compliance with the rules in completing the work on 21 April 2017.186 However, he also conceded that there was no practical reason why a working earth could not have been used on the day and Mr Weekley gave evidence to the same effect.187

[128] Despite this, a deliberate and conscious decision was taken to not install working earths and bonds by the three Applicants collectively. In that context, all three failed to comply with the responsibility they had to ensure that the bonds and working earths were applied. It is an overly narrow interpretation of the Electrical Safety Rules to seek to absolve Mr Weekley and Mr Campbell of responsibility for the failure to install working earths on the basis submitted by the Applicant. I agree with the Respondent a proper reading of the Electrical Safety Rules is that they all had a responsibility. The Applicants agreed that they were required to comply and work in accordance with the Electrical Safety Rules. 188

[129] To make the point clearer, had Mr Weekley or Mr Campbell said on the day that they disagreed with not installing bonds and working earths and were told by Mr Fitzgerald that they should perform the task in breach of the rules and then did so, then of course my view would be different. The two men could not, under the rules, install the bonds and working earths as they were not the Access Permit Recipient and in such a circumstance should not be held responsible. However, this is not what happened. What happened here was the three men made a collective decision to ignore the rules to install working earths and bonds when they clearly should have done so.

[130] I also agree with the Respondent that it is important in relation to each of the Applicants that their individual and collective breach of the Electrical Safety Rules was conscious and deliberate. At the time a decision was taken not to install working earths, the Applicants were aware of the Electrical Safety Rules, and the fact that in the circumstances with which they were dealing that day, the Electrical Safety Rules required the installation of working earths. The Respondent further submits and I agree that this is hardly surprising as all three Applicants had been tested on this issue only nine days before. The Applicants cannot rely on inadvertence or human error as their reason for non-compliance. Rather, all three Applicants knew the rules and decided not to follow them. I agree with the Respondent that this underlines the seriousness of the misconduct engaged in by each of the Applicants. 189

[131] The exception to which I referred above is that finding 1 specifically references a failure to comply with the Electrical Safety Rules - CEOP8030 section 5.3 (VIII). All of section 5.3 is preceded by the following: “The recipient of an Access Permit shall have the following responsibilities”. Only Mr Fitzgerald was the Access Permit Recipient. It follows that only he can be found to have breached that rule and not Mr Weekley and Mr Campbell.

[132] For these reasons I am satisfied that findings 1 and 2, with the exception re: section 5.3(VIII) of the Electrical Safety Rules, are properly made against all three Applicants, not just Mr Fitzgerald.

Was the failure to properly complete the access permit and HIRAC an honest mistake or deliberate? (Relevant to findings 3 and 4)

[133] The Applicants submit that the Commission should reject the Respondent’s submission that the Applicants were not credible and were not honest which would enable a finding that finding 3 and finding 4 was a simple mistake with the paperwork. 190

[134] Finding 3 is specifically addressed to Mr Fitzgerald as the Access Permit issuer and recipient. It is not in contest that the Access Permit was not completed properly, in particular, that it recorded that working earths and equipotential bonding had been installed when in fact they had not. The Applicant submits that this finding should not hold against Mr Fitzgerald as his failure to record the steps accurately was simply a mistake with the paper work. Further, that the Commission should reject any submission that the errors were deliberate or an attempt to misrepresent the manner in which the job was performed and that they can be described as minor procedural errors. 191

[135] Having considered the evidence, I do not accept that it was simply a mistake. To make that finding would be inconsistent with the evidence. Mr Fitzgerald completed section 3 well before the work commenced even though this should have been completed after the Access Permit had been installed. Mr Fitzgerald’s explanation as to why he completed section 3 before the work commenced was as follows:

“…Can I ask why would there be anything about this job that would have stopped you from filling out the form in the manner - well, I’m putting to you the manner it appears to require, which is to fill it out as you go, basically?---Probably the main reason for that was being able to speak to network operations at Oxley station on that particular day, so I thought - I know it was inclement weather and I was sitting in the Ute, and I thought that was the best place to do it.  So after getting the numbers off network operations, I thought I’d write it down so I wouldn’t have to forget them or misplace where - I may have written it on a piece of paper or something.  It might have got lost it the Ute in the circumstances, so I thought, “While I'm stopped here, I'm in the vehicle, I'm now in the inclement weather, I'll just make a start on the Access Permit”.” 192

[136] I agree with the Respondent that this is not a convincing explanation. A few words needed to be written and nothing more. In any case, Mr Fitzgerald had to prepare and then revisit this two page document on at least three occasions during the afternoon. In those circumstances, it is simply not believable that he was not aware of the inaccuracy in the document in section 3. Mr Fitzgerald knew that an access permit earth had to be applied and decided he was not going to apply one. I have taken into account the Applicants submissions that Mr Fitzgerald was honest in his responses to the investigator and in the Commission and I agree that this lends support to a finding that his general honesty in that regard should lead me to accept his explanation that this was a mistake. However, this has to be balanced against the consideration above. On the balance of probabilities, I am not satisfied that this was an inadvertent mistake. However, even if I am wrong about that, on a best case, Mr Fitzgerald was grossly negligent in failing to complete the document properly. In either case, finding 3 is made out against Mr Fitzgerald. Finding 3 is not relevant to the other two Applicants.

[137] As to finding 4, this applies to all three Applicants. It is submitted that in respect to all three applicants that it is accepted that the HIRAC contained an error, that the HIRAC recorded that equipotential bonding was put in place when it was not. In respect to all three Applicants, it is submitted that the errors on the HIRAC were a simple mistake and that the evidence shows that minor mistakes are not uncommon. I am unable to agree with this submission.

[138] While minor mistakes are not uncommon, this was not a minor mistake. Mr Fitzgerald told the investigator, Mr Sim, in his interview that they intended to use equipotential bonding but then they did not do it. 193 However, in his witness statement and in his evidence at the hearing, he changed his position saying it was a mistake that he ticked the box saying that equipotential bonding was or would be put in place. That he had no intention of using equipotential bonding.194 I agree with the Respondent that this change in position is hard to reconcile. I have taken into account the honesty of Mr Fitzgerald in his responses to the investigator and the Commission. However on balance I am satisfied that the failure to complete the HIRAC correctly by Mr Fitzgerald was not simply a mistake. Even if I am wrong about that he was at best grossly negligent in failing to complete the form correctly. In either case, finding 4 is made out in respect to Mr Fitzgerald.

[139] In respect to Mr Weekley and Mr Campbell, when they signed off on the HIRAC, the ticks were already there stating that equipotential bonding was or was going to be used. They had already had a discussion where they had agreed that the equipotential bonding was not going to be used. It is an agreed fact that they read the document before signing it. 195 It is not credible that all three Applicants made a mistake in relation to the completion of this document. I am satisfied having regard to the totality of the evidence that it is more likely to have been deliberate. It is not credible that all three experienced and otherwise competent employees happened to make a series of mistakes in filling out the paper work all on the one day for the same job. I have taken into account the submissions that Mr Weekley and Mr Campbell were honest in their responses to the investigator and in the Commission and I agree that this lends support to a finding that their general honesty in that regard should lead me to accept their explanation that this was a mistake. However, on balance I am satisfied that the failure to complete the HIRAC properly by Mr Weekley and Mr Campbell was not simply a mistake. Even if I am wrong about that, they were at best grossly negligent in failing to properly complete the form. In either case, finding 4 is made out in respect to Mr Weekley and Mr Campbell.

Failure to report the incident (raise a Totalsafe) (Relevant to finding 5)

[140] It is conceded that this finding is made out against all three Applicants. 196 The Applicant concedes this was a breach of procedure with the potential to cause injury, illness or environmental harm.197 The Respondent submits and I agree that given the three applicants knew at the time they were working in breach of the Electrical Safety Rules and were all well aware of the importance of the Electrical Safety Rules this was a substantive failure to meet the requirements of their employment. I do not accept that the evidence supports the Applicants submission that it was not substantial. Nor do I accept that it was not wilful. I do not accept the explanation that they thought that the job was safe or they did what thought was right at the time.198 As discussed above, the job was not safe because the Electrical Safety Rules were not followed. For each of the Applicants this is a substantial and wilful breach of the rules of the Respondent. Rules which they were well aware existed.

Failure to Act in accordance with Essential Energy’s Code of Conduct, in particular to act ethically at all times and in relation to safety excellence and failure to ‘always control your work site’ in accordance with the Electrical Safety Rules (Relevant to findings 6 and 7)

[141] It is conceded that finding 7 is made out in respect to Mr Fitzgerald but not conceded that it is made out for Mr Weekley and Mr Campbell. It is not conceded that finding 6 is made out for any of the three Applicants. I do not accept the Applicants submissions as to why findings 6 and 7 are not made out in respect to all three Applicants. 199 All three Applicants correctly answered questions about the Electrical Safety Rules just nine days before the job at Mayfield. They then consciously decided not to follow the rules and not apply working earths and bonding. I agree with the Respondent that it is clear that this amounts to a breach of the core values: Safety excellence, including to put safety as the number one priority and Act with integrity, including to follow the rules and speak up.200 In doing so they have breached the Code of Conduct and they have failed to control their work site in accordance with the Electrical Safety Rules.

[142] There are also the failures in respect to completing the Access Permit document (for Mr Fitzgerald) and the HIRAC (for all three of the Applicants) already dealt with above. These are also failures in respect to each of the Applicants obligations under the Code of Conduct in that it does not meet the standards of personal and professional conduct the Respondent challenges employees to meet.

Valid Reason

[143] There must have been a valid reason for the dismissal related to the Applicants’ capacity or conduct, although it need not be the reason given to the Applicants at the time of the dismissal.²⁰¹ To be a valid reason it must be “sound defensible or well founded”. 202 The Commission must make a finding as to whether the conduct occurred based on the evidence before it.²⁰³
[144] I note that the Applicant concedes that findings 1, 2 5 and 7 are made out in relation to Mr Fitzgerald and on that basis concedes there is a valid reason for the dismissal of Mr Fitzgerald. For the reasons set out above, I am satisfied that that all of the findings 1 to 7 are made out in respect to Mr Fitzgerald. I am satisfied that all of the findings with the exception of finding 3 and the further exception set out above re: finding 1 and section 5.3(VIII) of the Electrical Safety Rules are made out in respect to Mr Campbell and Mr Weekley. On that basis I am satisfied there is a valid reason for the dismissal of all three Applicants on the basis of those findings. The reason for dismissal is clearly sound and defensible in respect to all three Applicants.

Was the conduct serious misconduct?

[145] In this matter the Applicants were dismissed summarily. Whether or not summary dismissal was a disproportionate response is a relevant factor in considering whether a dismissal is harsh. 204

[146] The Respondent submits and I agree that the primacy of the Electrical Safety Rules within its business and the fact that the breaches of it in this case were clear and straightforward support the proposition that the conduct of the Applicants should be treated as serious misconduct justifying summary dismissal. It is clear from my findings above that:

•  Compliance with the Electrical Safety Rules and Bonding Procedure is a core responsibility;

•  All three Applicants were aware of the rules;

•  All three Applicants deliberately chose not to follow the rules;

•  Mr Fitzgerald failed to complete the Access Permit correctly and all three Applicants failed to complete the HIRAC correctly and these are documents that are central to the control by the Respondent of work practices and the maintenance of safety standards;

•  All three Applicants readily conceded that rules required working earths and bonding. The application of those rules is beyond dispute and the three Applicants knowingly and consciously chose not to follow the rules that applied to them; and

•  The actions of all three of the Applicants were repudiatory of the essential conditions of their respective employment obligations.

[147] I am also satisfied that the actions of the three men caused a serious and imminent risk to the safety of a person, most certainly that of Mr Weekley who was within 700mm of a high voltage exposed conductor. Electrocution can cause serious injury or death. I am also satisfied, again consistent with the reasons above, that a risk of electrocution can reasonably be regarded as imminent when one is working on the electricity network unless and until all the mandatory rules are followed, in this case the application of working earths and equipotential bonding. There is no challenge in this matter to the reasonableness of those rules. They should have been followed.

[148] For these reasons I am satisfied that all three Applicants engaged in serious misconduct justifying summary dismissal.

Sections 387(b) – (g) of the Act

[149] At the final hearing the Applicant submitted that subject to finding 3 not being a factor in terms of determining whether there was a valid reason for dismissal of Mr Weekley and Mr Campbell, that there is nothing in the consideration of s.387(b) - (g) that weighs towards a finding of unfairness. 205 I have adopted that submission in respect to each of the Applicants having regard to the fact that I have not determined that finding 3 is part of the valid reason for dismissal of Mr Weekley and Mr Campbell.

Section 387(h) other relevant matters

[150] The Applicants advance a common submission in relation to s.387(h) of the Act and submit that any one or more of the points below can be relied upon to demonstrate that the dismissal was unfair. I will deal with each of these matters and make relevant findings on a common basis as is submitted by the Applicant. These findings will inform the consideration below in respect to each Applicant. As to the impact of the dismissal, the circumstances are unique to each Applicant and will be dealt with accordingly.

The decision support tool and risk of harm

[151] The Applicant submits that there are two reasons the dismissals are disproportionate and accordingly harsh. The first is that the dismissal is not consistent with the Respondents own Fair and Just Culture policy. The second is that the risk of harm to the Applicants was between low to medium on proper application of the Respondent’s Health Safety and Environment Manual Risk Management document that it uses and encourages its employees to use to measure risk (and is the framework to complete documents such as HIRAC). 206

[152] The Respondent has a Fair and Just Culture Policy which Mr Jenner applied when making the decision to terminate the Applicants employment. The essence of the Applicants submissions on this is to the effect that Mr Jenner misapplied that policy because in accordance with that policy the conduct should have been determined as At Risk and not Reckless. The right response for At Risk conduct is not dismissal and that in any case, there were options other than dismissal even if the conduct was properly described as Reckless.

[153] Having regard to the consideration above, it is clear that the employees deliberately and consciously departed from the known and established rules. They did so exercising their own judgement that it was safe to do so. It was not. In ignoring the rules they have shown a disregard for the consequences to themselves. It was open to Mr Jenner to find that they did so to make it easier for themselves. Mr Fitzgerald conceded that he chose time efficiency over compliance with the rules. In any case, having regard to the consideration above, there is no doubt that the answer to the third question under At Risk is “yes”. All three employees knowingly breached the Code of Conduct. The answer to that question alone suggests that the behaviour was Reckless. In that context, the actions were most certainly in my view Reckless within the meaning of the decision support tool.

[154] I agree with the Respondent that if the decision to terminate was a decision that was in some way inconsistent with that tool then it does not of itself make the dismissals harsh. However, I agree with the Applicant that it is a matter to be properly taken into account when determining if the dismissals were in fact harsh. In the circumstances however, I do not consider it was inconsistent with the terms of the policy for Mr Jenner to determine that the actions of the Applicants were Reckless. Dismissal was an option under the terms of the decision support tool.

[155] Having considered the decision support tool and its application in this matter I do not consider it to be a factor weighing in favour of a finding that the dismissals were disproportionate. Whether or not exercising that option was harsh or indeed unfair for any other reason is of course a matter for me to decide taking into account all of the circumstances in the matter.

[156] The Applicant submits that the risk of harm to the Applicants was between low to medium on proper application of the Respondent’s Health Safety and Environment Manual Risk Management document. Therefore, that the Commission cannot find that the control measures prescribed by the Respondent, namely working earths and bonds would have protected the Applicants from the risk of that harm. I do not agree that the risk of electric shock or electrocution is such that it renders the dismissal disproportionate and accordingly harsh. There is no disagreement between the parties that the risk of re-energisation was unlikely, but it is possible and the consequences are severe.

[157] I do not consider the risk of harm to the Applicants to be a factor weighing in favour of a finding that the dismissals were disproportionate.

Have there been other comparable breaches of the Electrical Safety Rules and other rules which have had outcomes other than dismissal?

[158] The Applicant submits that there have been comparable breaches of the Electrical Safety rules that have not resulted in dismissal and that this inconsistent approach taken by the Respondent demonstrates that the dismissals are unfair.

[159] The Respondent submits it has taken a firm and consistent view to safety matters and compliance with policies, that in light of the ever present possibility of catastrophic events (including deaths) it has to take a hard line about these matters. In relation to the incident that saw the three Applicants dismissed, four managers were disciplined, and the most senior of the managers was summarily dismissed in the same manner as the Applicants, for failing to escalate the matter so that it could be properly investigated and dealt with. The three other employees received a first and final warning. The Respondent submits and I agree that this demonstrates that the Respondent displayed a consistent view across the board in relation to the conduct of all employees involved in this matter.

The incident in early 2016

[160] In 2016 an incident occurred where a number of workers failed to use working earths while working on a 66kv line (among other safety breaches) and were dismissed. Mr Jenner’s evidence was that he was mindful of this event and need to be consistent when he was considering the appropriate outcomes for the Applicants in this matter. 207 The approach taken by the Respondent in that matter demonstrates a consistent approach on the part of the Respondent to safety breaches.

The Hanwood incident

[161] As to the failure to install working earths at Hanwood, I do not consider this to be a comparable situation as a number of the employees involved maintained that they could see the access permit earths and therefore a working earth was not required. Ultimately, the employees were given the benefit of the doubt. In the case before me, there is no doubt that working earths were not installed and they should have been installed.

[162] As to the failure to install the bonds, it is clear that the Respondent found in the Hanwood Incident that the employees breached the Electrical Safety Rules by failing to do so and yet were only given an Expectations Letter as opposed to any other sanction. It is apparent this is inconsistent treatment when compared to the sanction applied to the Applicants. I have considered the Applicants submissions that the HIRAC was not investigated but do not consider that it is relevant taking into account the Respondents Submissions that the HIRAC is a working document and the bonds were eventually applied at another of the sites covered by the HIRAC.

[163] I have taken into account the submission of the Respondent that in the Hanwood matter, the employees were not consciously and deliberately ignoring or breaching the rules and were distracted by the elevated work platform breaking down and taking all that into account the employees did not deserve to have their employment terminated. That is a reasonable submission, but does not explain why the employees received only the lightest of sanctions available, indeed barely a sanction at all. In all of the circumstances, this does demonstrate an inconsistency in the treatment of the employees and in that context is a factor that weighs in favour of a finding that the dismissal is harsh, although not significantly so having regard to the findings made by the Respondent on that occasion that the actions were not deliberate.

The Great Southern incident

[164] It is clear enough that Great Southern are required to comply with the Electrical Safety Rules and that on 3 occasions they breached those rules by failing to install bonds and allowing unauthorised workers to perform work on the network. The sanction applied was that the Great Southern employees were suspended pending further training. However, the important distinguishing factor here is that this matter involves contractors who are not in the direct control of the Respondent. Mr Jenner’s evidence, which I accept, is that the Respondent took every step available to it in relation to the matter. Had they been contractors within the Respondents control they would not be working on the network. However, they are not within the Respondent’s control. In all of the circumstances, consideration of this factor does not weigh in favour of a finding of harshness.

The Facebook post on 25 July 2017

[165] Mr Main set out a number of breaches of the Respondent’s rules that can be identified from the Facebook post and was not challenged on cross-examination on this point. I accept the evidence of Mr Main on this point. Mr Nardi gave evidence that the rules do not apply to the situation depicted in the Facebook post as it was a “co-ordinated stage site”. However, Mr Jenner did not agree with Mr Nardi that the rules did not apply on the grounds that this was a co-ordinated stage site.

[166] I do not accept the evidence of Mr Nardi. I agree it is self-serving to attempt to re-characterise this event as somehow being an exception to the rules. One would have thought that the rules are there to, among other things, keep workers and the public safe. However, I do accept that there is a difference with the conduct under consideration here. The work was not on or near the network and in that sense the dangers were quite different. Nevertheless there were still dangers, and potential, albeit low, for an employee in the photograph to be in the “drop zone” due to the location of the basket and for the sign to have been dropped and fall onto the head of one or more employees on the ground. In that context, the attempts of Mr Nardi to brush the incident aside are self-serving. This is an inconsistent approach.

Conclusions on inconsistent treatment

[167] I am satisfied that the circumstances surrounding the Hanwood Incident and the Facebook post weigh towards a finding of unfairness in respect to all three Applicants. However, I have also taken into account that on another occasion in early 2016, the Respondent dismissed the employees involved in a breach of the Electrical Safety Rules. The Respondent also summarily dismissed the senior manager in this matter for failing to escalate the matter so that it could be properly investigated and dealt with. Nevertheless, employers should be consistent and the evidence of Mr Nardi regarding the Hanwood Incident and the Facebook post was troubling. I accept that the Respondent was inconsistent to some extent in relation to these two incidents; however the circumstances are not directly comparable. Notwithstanding that, the inconsistency weighs in favour of a finding of unfairness when considering if the dismissals were disproportionate.

[168] Overall, I am satisfied consideration of this matter weighs in favour of a finding of unfairness for all three Applicants but having regard to the fact that they have been consistent in other matters, not significantly so.

Impact of dismissal

[169] As mentioned above, the circumstances in relation to the impact of dismissal are unique to each Applicant and will be dealt with accordingly in my consideration below.

Were the dismissals harsh, unjust or unreasonable?

[170] The ambit of the words “harsh, unjust or unreasonable” in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd²⁰⁸ by McHugh and Gummow JJ as follows:

“. . . It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”²⁰⁹

[171] It is necessary in this matter to consider whether the decision to terminate was disproportionate to the gravity of the misconduct. BHP Coal Pty Ltd v Schmidt 210 is an authority for the correct approach to take to considering the gravity of the misconduct. I agree with this approach. In that matter, the Full Bench approached the question in terms of proportionality and not in terms of “strength” of the valid reason.211 It is clear that the Full Bench considered the significance and importance of the conduct in determining valid reason.212

[172] Ultimately, however, it is the matters set out in s.387 of the Act to which regard must be had.

[173] A great deal of the evidence is common to the three men and relevant findings have been applied to all three. In that context reference is made throughout the individual considerations to relevant findings set out above. However, ultimately, each application stands alone and must be assessed as such.

Was the dismissal of Mr Fitzgerald unfair?

Section 387(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)

[174] As set out in the consideration above, I am satisfied that there is a valid reason for the dismissal of Mr Fitzgerald.

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

[175] Mr Fitzgerald was notified of the reasons for his dismissal.

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

[176] Mr Fitzgerald was given an adequate opportunity to respond to the findings that formed the basis of the decision to dismiss him.

387 (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

[177] Mr Fitzgerald was not refused by the Respondent to have a support person at discussions that preceded the dismissal.

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

[178] Mr Fitzgerald was dismissed for serious misconduct and not unsatisfactory performance and this matter therefore does not arise.

387 (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

[179] The size of the Respondents enterprise did not impact on the procedures followed in effecting the dismissal of Mr Fitzgerald.

387 (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

[180] This criteria is not relevant in these proceedings.

[181] In relation to the above considerations I note that the Applicant does not submit that there is anything in the consideration of (b) to (g) that weighs in favour of a finding that the dismissals are unfair. 213

387(h) any other matters that the FWC considers relevant

[182] In B, C and D v Australian Postal Corporation²¹⁴ the majority noted that it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable”, notwithstanding the finding that there is a valid reason for the dismissal.²¹⁵ I agree that this is the appropriate approach.

The decision support tool and risk of harm

[183] I have dealt with the submissions regarding whether the dismissals of the Applicants were disproportionate and accordingly harsh. Having considered the decision support tool and its application and the risk of harm to the Applicants in this matter I do not consider these to be factors weighing in favour of a finding that the dismissal of Mr Fitzgerald was disproportionate.

[184] I have found that Mr Fitzgerald engaged in serious misconduct. I am satisfied having regard to the gravity of the conduct that summary dismissal was not disproportionate.

Inconsistent treatment

[185] I have dealt with the submissions regarding alleged inconsistent treatment above. For the reasons there indicated, I am satisfied consideration of this matter weighs in favour of a finding of unfairness for Mr Fitzgerald but for the reasons given above, not significantly so.

The impact of the dismissal

[186] Mr Fitzgerald was earning $1,907.25 per week in his position with the Respondent. Since being dismissed he has only been able to find two weeks work in a local club. The Applicant submits and I accept that the ongoing effect of the dismissal will be particularly acute on Mr Fitzgerald given his age, location and length of service in the one industry and incapacity to perform physical work. I agree with the Applicant that Mr Fitzgerald will have difficulty finding employment.

Previous work history

[187] Mr Fitzgerald was a long standing employee of 36 years’ experience. Virtually his whole working life has been with the Respondent. He consistently received positive feedback about his work performance from his direct supervisor Mr Duggan. He had been described by Mr Duggan as a safety champion.

Conclusion

[188] There is a valid reason for the dismissal of Mr Fitzgerald. I have found that Mr Fitzgerald was guilty of serious misconduct. His actions were willful and deliberate. There is nothing in the consideration of all of the factors in s.387(b)-(g) above that weighs in favour of a finding that the dismissals are unfair. I am satisfied having regard to the gravity of the conduct that summary dismissal was not disproportionate. Consideration of the decision support tool and its application and the risk of harm do not weigh in favour of finding the dismissal disproportionate. The consideration of inconsistent treatment weighs in favour of a finding the dismissal was unjust, though for the reasons given, only slightly so.

[189] The impact on Mr Fitzgerald of the dismissal I accept will likely be significant and this weighs in favour of a finding the dismissal was harsh. It is also the case that he had an excellent work record during a long period of service with the Respondent. However, it also has to be taken into account that Mr Fitzgerald was in a leadership position in the context of ensuring safety rules. He was the Depot Supervisor and the Access Permit Issuer and Recipient for the job. In that context, his length of service and his experience cuts both ways as it were. Overall, on balance, having regard to the long period of service and excellent work record this factor does weigh slightly in favour of a finding that the dismissal was harsh.

[190] Ultimately it is a matter of weighing up all of the factors. Having done so, I am satisfied that Mr Fitzgerald has willfully breached a most important policy of the employer. He did so knowingly having been trained in the requirements within days of the breach. He was paid a substantial allowance by the Respondent to follow the rules which he ignored. He continues to maintain that the work was done in a safe manner. My findings on inconsistent treatment do weigh in favour of a finding the dismissal was disproportionate. My findings on the impact of the dismissal weigh in favour of a finding the dismissal was harsh. However, these considerations are not so significant when considered against the seriousness of the conduct to render the dismissal of Mr Fitzgerald unfair. Considering all of these factors, including the factors considered in the context of proportionality, these do not outweigh the factors that constituted the valid reason for dismissal and the lack of any procedural unfairness in effecting the dismissal.

[191] Having considered all of the circumstances, I am satisfied that the dismissal is not disproportionate. Nor do I consider the dismissal to be otherwise harsh, unjust or unreasonable.

[192] Mr Fitzgerald’s application for an unfair dismissal remedy (matter U2017/9381) is dismissed.

[193] An order giving effect to this decision is separately issued in PR602068.

Was the dismissal of Mr Weekley unfair?

Section 387(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)

[194] As set out in the consideration above, I am satisfied that there is a valid reason for the dismissal of Mr Weekley.

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

[195] Mr Weekley was notified of the reasons for his dismissal.

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

[196] Mr Weekley was given an adequate opportunity to respond to the findings that formed the basis of the decision to dismiss him.

387 (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

[197] Mr Weekley was not refused by the Respondent to have a support person at discussions that preceded the dismissal.

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

[198] Mr Weekley was dismissed for serious misconduct and not unsatisfactory performance and this matter therefore does not arise.

387 (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures following in effecting the dismissal

[199] The size of the Respondents enterprise did not impact on the procedures followed in effecting the dismissal of Mr Weekley.

387 (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

[200] This criteria is not relevant in these proceedings.

[201] In relation to the above considerations I note that the Applicant does not submit that there is anything in the consideration of (b) to (g) that weighs in favour of a finding that the dismissals are unfair. 216

387(h) any other matters that the FWC considers relevant

[202] In B, C and D v Australian Postal Corporation²¹⁷ the majority noted that it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable”, notwithstanding the finding that there is a valid reason for the dismissal.²¹⁸ I agree that this is the appropriate approach.

The decision support tool and risk of harm

[203] I have dealt with the submissions regarding whether the dismissals of the Applicants were disproportionate and accordingly harsh. Having considered the decision support tool and its application and the risk of harm to the Applicants in this matter I do not consider these to be factors weighing in favour of a finding that the dismissal of Mr Weekley was disproportionate.

[204] I have found that Mr Weekley engaged in serious misconduct. I am satisfied having regard to the gravity of the conduct that summary dismissal was not disproportionate.

Inconsistent treatment

[205] I have dealt with the submissions regarding alleged inconsistent treatment above. For the reasons there indicated, I am satisfied consideration of this matter weighs in favour of a finding of unfairness for Mr Weekley but for the reasons given, not significantly so.

The impact of the dismissal

[206] Mr Weekley was earning $1,609.97 per week in his position with the Respondent. Since being dismissed he has obtained some work as a rouseabout for a Shearer. In that role he is earning about $700 less per week. The Applicant submits and I accept that the ongoing effect of the dismissal will be particularly acute on Mr Weekley given his age, location and length of service in the one industry and incapacity to perform physical work. I agree with the Applicant that Mr Weekley will have difficulty finding comparable employment.

Previous work history

[207] Mr Weekley was a long standing employee. He had been employed by the Respondent or one of its predecessors for a total period of 23 years over 3 stints. His most recent stint was for about 14 years as a Powerline Worker. I agree with the submissions of the Applicant that he had never received a warning or other disciplinary action during his employment with the Respondent. Mr Fitzgerald at one point described Mr Weekley as one of the best powerline workers in Australia.

Conclusion

[208] There is a valid reason for the dismissal of Mr Weekley. I have found that Mr Weekley was guilty of serious misconduct. His actions were wilful and deliberate. This clearly weighs against a finding that the dismissal is unfair.

[209] There is nothing in the consideration of all of the factors in s.387(b)-(g) above that weighs in favour of a finding that the dismissals are unfair. I am satisfied having regard to the gravity of the conduct that summary dismissal was not disproportionate. The consideration of inconsistent treatment weighs in favour of a finding the dismissal was unjust though for the reasons given only slightly so. Consideration of the decision support tool and its application and the risk of harm do not weigh in favour of finding the dismissal is disproportionate.

[210] I accept the impact on Mr Weekley of the dismissal will likely be significant and this weighs in favour of a finding the dismissal was harsh. It is also the case that he had, albeit in a series of separate engagements, a long period of good service with the Respondent. His most recent engagement was 14 years which is significant. However, it also has to be taken into account that he was a long serving and experienced Powerline Worker. He was trained as an Access Permit Issuer and Recipient. In that context, his length of service cuts both ways at it were. Overall, on balance, having regard to the long period of service and excellent work record this factor does weigh slightly in favour of a finding that the dismissal was harsh.

[211] Ultimately it is a matter of weighing up all of the factors. Having done so, I am satisfied that Mr Weekley has willfully breached a most important policy of the employer. He did so knowingly having been trained in the policies requirements within days of the breach. He was paid a substantial allowance by the employer to follow the rules that he ignored. He continues to maintain that the work was done in a safe manner. My findings on inconsistent treatment do weigh in favour of a finding the dismissal was disproportionate and my findings on the impact of the dismissal on Mr Weekley weigh in favour of a finding the dismissal was harsh. However, considering all of these factors, including the factors considered in the context of proportionality, these do not outweigh the factors that constituted the valid reason for dismissal and the lack of any procedural unfairness in effecting the dismissal.

[212] Having considered all of the circumstances, I am satisfied that the dismissal is not disproportionate. Nor do I consider the dismissal to be otherwise harsh, unjust or unreasonable.

[213] Mr Weekley’s application for an unfair dismissal remedy (matter U2017/9379) is dismissed.

[214] An order giving effect to this decision is separately issued in PR602067.

Was the dismissal of Mr Campbell unfair?

Section 387(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)

[215] As set out in the consideration above, I am satisfied that there is a valid reason for the dismissal of Mr Campbell.

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

[216] Mr Campbell was notified of the reasons for his dismissal.

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

[217] Mr Campbell was given an adequate opportunity to respond to the findings that formed the basis of the decision to dismiss him.

387 (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

[218] Mr Campbell was not refused by the Respondent to have a support person at discussions that preceded the dismissal.

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

[219] Mr Campbell was dismissed for serious misconduct and not unsatisfactory performance and this matter therefore does not arise.

387 (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures following in effecting the dismissal

[220] The size of the Respondents enterprise did not impact on the procedures followed in effecting the dismissal of Mr Campbell.

387 (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

[221] This criteria is not relevant in these proceedings.

[222] In relation to the above considerations I note that the Applicant does not submit that there is anything in the consideration of (b) to (g) that weighs in favour of a finding that the dismissals are unfair. 219

387(h) any other matters that the FWC considers relevant

[223] In B, C and D v Australian Postal Corporation²²⁰ the majority noted that it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable”, notwithstanding the finding that there is a valid reason for the dismissal.²²¹ I agree that this is the appropriate approach.

The decision support tool and risk of harm

[224] I have dealt with the submissions regarding whether the dismissals of the Applicants were disproportionate and accordingly harsh. Having considered the decision support tool and its application and the risk of harm to the Applicants in this matter I do not consider these to be factors weighing in favour of a finding that the dismissal of Mr Campbell was disproportionate.

[225] I have found that Mr Campbell engaged in serious misconduct. I am satisfied having regard to the gravity of the conduct that summary dismissal was not disproportionate.

Inconsistent treatment

[226] I have dealt with the submissions regarding alleged inconsistent treatment above. For the reasons there indicated, I am satisfied consideration of this matter weighs in favour of a finding of unfairness for Mr Campbell but for the reasons given above, not significantly so.

The impact of the dismissal

[227] Mr Campbell was earning $1,532.68 per week in his position with the Respondent. Since being dismissed he has obtained work with Forestry NSW and is now paid $1,233.65 per week. Prior to that Mr Campbell did some casual farm work. Summary dismissal for serious misconduct has meant that Mr Campbell did not receive payment for his accrued long service leave in accordance with the Agreement.

Previous work history

[228] Mr Campbell was employed as an electrical worker by the Respondent for a period of about 6.5 years. He had an excellent work record because he had never received a warning or any other disciplinary action during his period of employment and received positive feedback as to his work performance from Mr Fitzgerald his supervisor.

Conclusion

[229] There is a valid reason for the dismissal of Mr Campbell. I have found that Mr Campbell was guilty of serious misconduct. His actions were wilful and deliberate. Consideration of this factor clearly weighs against a finding that the dismissal is unfair.

[230] There is nothing in the consideration of all of the factors in s.387(b)-(g) above that weighs in favour of a finding that the dismissals are unfair. Consideration of the decision support tool and its application and the risk of harm do not weigh in favour of finding the dismissal is disproportionate. I am satisfied having regard to the gravity of the conduct that summary dismissal was not disproportionate. The consideration of inconsistent treatment weighs in favour of a finding the dismissal was unjust though for the reasons given only slightly so.

[231] There is some impact on Mr Campbell of the dismissal. He is earning less in his new role than he was earning with the Respondent and he did not receive payment for his accrued long service leave. This impact weighs in favour of a finding the dismissal was harsh but not significantly so. Mr Campbell at 6.5 years of employment does not have a particularly long period of service.

[232] Ultimately it is a matter of weighing up all of the factors. Having done so, I am satisfied that Mr Campbell has willfully breached a most important policy of the employer. He did so knowingly having been trained in the policies requirements within days of the breach. There was a valid reason for his dismissal. He was paid an allowance by the employer to follow the rules that he ignored. He continues to maintain that the work was done in a safe manner. There is nothing in the consideration of all of the factors in s.387(b)-(g) above that weighs in favour of a finding that the dismissals are unfair. I do not consider summary dismissal to have been a disproportionate response. My findings on inconsistent treatment do weigh in favour of a finding the dismissal was disproportionate. There is some impact of the dismissal on Mr Campbell but it is not a significant factor in the consideration. Considering of all of these factors, including the factors considered in the context of proportionality, these do not outweigh the factors that constituted the valid reason for dismissal and the lack of any procedural unfairness in effecting the dismissal.

[233] Having considered all of the circumstances, I am satisfied that the dismissal is not disproportionate. Nor do I consider the dismissal to be otherwise harsh, unjust or unreasonable.

[234] Mr Campbell’s application for an unfair dismissal remedy (matter U2017/9382) is dismissed.

[235] An order giving effect to this decision is separately issued in PR602070.

COMMISSIONER

Appearances:

A Walkaden for the Applicants

A Joseph of Counsel for the Respondent

Hearing details:

2017/2018

Wentworth/Sydney:

19, 20, 21 December, 7 February.

Final written submissions:

30 January 2018.

Printed by authority of the Commonwealth Government Printer

<PR601067>

 1   PN2569 – PN2575

 2   Exhibit AR1, Statement of Agreed Facts at [1] – [7]

 3   Exhibit AR1, Statement of Agreed Facts at [30] - [31]

 4   PN476 – PN477, PN955, PN1035, PN1872

 5   Applicants’ outline of submissions dated 13 November 2017 at [13]

 6   Exhibit A1, Witness Statement of Gavin Campbell at [24], Exhibit A3, Witness Statement of Nicholas Fitzgerald at [40], Exhibit A5, Witness Statement of Jeff Weekley at [19], [23], Applicants’ final submissions dated 23 January 2018 at [6](i)

 7   Exhibit AR1, Statement of Agreed Facts at [32], [39]

 8   Exhibit R1, Volume 1 of Exhibits, CEOP8030 - Electrical Safety Rules at Tab 1, Exhibit AR1, Statement of Agreed Facts at [39], Applicants’ final submissions dated 23 January 2018 at [6](s) – (v)

 9   Exhibit A5, Statement of Jeff Weekley at [40]

 10   Exhibit R1, Volume 1 of Exhibits, Investigation Report para 2.3 at Tab 24, PN1968

 11   Exhibit R2, Volume 2 of Exhibits, Investigation Letters at Tab 46, 55 and 64

 12   Exhibit R2, Volume 2 of Exhibits, Show Cause Letters at Tab 47, 56 and 65

 13   Applicants’ outline of submissions dated 13 November 2017 at [15]

 14   Exhibit R2, Volume 2 of Exhibits, Findings Following Investigation at Tab 47, 56 and 65

 15   Exhibit R2, Volume 2 of Exhibits, Termination Letters at Tab 49, 58 and 67

 16   Applicants’ outline of submissions dated 13 November 2017 at [116]

 17   Applicants’ final submissions dated 23 January 2018 at [60] – [62]

 18   Applicants’ final submissions dated 23 January 2018 at [60] – [61], [63]

 19   Applicants’ final submissions dated 23 January 2018 at [64]

 20   Respondent’s final submissions dated 30 January 2018 at [5] – [6], [85]

 21   Exhibit AR1, Statement of Agreed Facts at [9]

 22   Exhibit R1, Volume 1 of Exhibits, CEOP8030 - Electrical Safety Rules at Tab 1

 23  Exhibit R1, Volume 1 of Exhibits, CEOP2377 - Operational Procedure Equipotential and Personal Protective Bonding at Tab 2

 24   Exhibit R1, Volume 1 of Exhibits, CEOP2045 - Access Permit Procedure at Tab 3

 25   Exhibit R1, Volume 1 of Exhibits, CEOP3000.01 - Code of Conduct at Tab 4

 26   Exhibit R1, Volume 1 of Exhibits, CEOM8047 - Electricity Network Safety Management System at Tab 8

 27   Exhibit R1, Volume 1 of Exhibits, CECM1000.02 - Health, Safety and Environmental Manual Risk Management at Tab 9

 28   Exhibit R1, Volume 1 of Exhibits, CEOF1002.02 - De-energised Safe Work Method Statement & Hazard Identification, Risk Assessment and Control (SWMS & HIRAC) at Tab 10

 29   Exhibit R1, Volume 1 of Exhibits, Rules We Live By - Network Fatal Risk Program at Tab 11, see Exhibit AR1, Statement of Agreed Facts at [10]

 30   Exhibit AR1, Statement of Agreed Facts at [13] – [14]

 31   Respondent’s outline of submissions dated 13 November 2017 at [16] – [17]

 32   Exhibit R3, Witness Statement of David Britten at [11] – [13]

 33   PN114 - PN119

 34   PN803 – PN809

 35   PN1702 – PN1703

 36   Exhibit AR1, Statement of Agreed Facts at [9]

 37   Exhibit AR1, Statement of Agreed Facts at [11]

 38   Exhibit AR1, Statement of Agreed Facts at [12]

 39   Exhibit AR1, Statement of Agreed Facts at [15] and Exhibit R2, Volume 2 of Exhibits, Assessments at Tabs 30 and 31

 40   Exhibit AR1, Statement of Agreed Facts at [16]

 41   Exhibit AR1, Statement of Agreed Facts at [17]

 42   PN508, PN527, PN1147, PN1169, PN1384, PN1809, PN2222 and PN3727, Respondent’s final submissions dated 30 January 2018 at [41]

 43   HIRAC documents take the form of the document at Exhibit R1, Volume 1 of Exhibits at Tab 10, see Exhibit AR1, Statement of Agreed Facts at [37]

 44   Exhibit AR1, Statement of Agreed Facts at [18] – [19]

 45   Exhibit AR1, Statement of Agreed Facts at [20] – [28], Exhibit R2, Volume 2 of Exhibits, Training records at Tabs 31, 50, 51, 52, 59,60, 61, 68, 69 and 70

 46   Exhibit AR1, Statement of Agreed Facts at [29]

 47   Exhibit AR1, Statement of Agreed Facts at [30]

 48   Exhibit AR1, Statement of Agreed Facts at [31]

 49   Exhibit A3, Witness Statement of Nicholas Fitzgerald at [40]

 50   Exhibit A3, Witness Statement of Nicholas Fitzgerald at [27] – [28], Applicants’ final submissions dated 23 January 2018 at [6](i)

 51   Exhibit A3, Witness Statement of Nicholas Fitzgerald at [30], [41] – [43], PN1448, Applicants’ final submissions dated 23 January 2018 at [6](i)

 52   Exhibit A3, Witness Statement of Nicholas Fitzgerald at [38]

 53   Respondent’s final submissions dated 30 January 2018 at [13]

 54   PN1039 – PN1040

 55   PN1152 – PN1153 and PN1991 – PN1992 and PN2236

 56   Applicants’ final submissions dated 23 January 2018 at [6](j), Exhibit A3, Witness Statement of Nicholas Fitzgerald at [44] – [45]

 57   Applicants’ final submissions dated 23 January 2018 at [6](j), PN2331 – PN2349

 58   Exhibit AR1, Statement of Agreed Facts at [32]

 59   Exhibit A5, Witness Statement of Jeff Weekley at [69], PN1856, PN2038, Exhibit AR1, Statement of Agreed Facts at [44]

 60   Exhibit A3, Witness Statement of Nicholas Fitzgerald at [53]

 61   Exhibit A5, Witness Statement of Jeff Weekley at [69]

 62   Exhibit A1, Witness Statement of Gavin Campbell at [29]

 63   Exhibit R4, Further Witness Statement of William Britten at [12], see also PN609, PN654, PN655, PN719

 64   Exhibit AR1, Statement of Agreed Facts at [41]

 65   Exhibit AR1, Statement of Agreed Facts at [42], Exhibit R1, Volume 1 of Exhibits, photo with labels added by Mr David Nardi at Tab 25

 66   PN1856, PN2038, Exhibit A5, Witness Statement of Jeff Weekley at [69], Exhibit AR1, Statement of Agreed Facts at [44]

 67   Respondent’s final submissions dated 30 January 2018 at [42]

 68   Applicants’ final submissions dated 23 January 2018 at [6](p) – (q)

 69   Respondent’s final submissions dated 30 January 2018 at [15], Exhibit AR1, Statement of Agreed Facts at [10], [16], see also [5], [8]

 70   PN657 – PN662 and PN1697 – PN1726

 71   Exhibit R1, Volume 1 of Exhibits, CEOP8030 - Electrical Safety Rules p.6 at Tab 1 and CEOM8047 – Electricity Network Safety Management System Plan, p.13 at Tab 8

 72   Respondent’s final submissions dated 30 January 2018 at [38]

 73   Respondent’s final submissions dated 30 January 2018 at [39]

 74   Respondent’s final submissions dated 30 January 2018 at [40] – [41]

 75   Exhibit AR1, Statement of Agreed Facts at [33]

 76   Exhibit AR1, Statement of Agreed Facts at [34]

 77   Exhibit AR1, Statement of Agreed Facts at [35]

 78   Exhibit AR1, Statement of Agreed Facts at [39] – [40]

 79   Applicants’ final submissions dated 23 January 2018 at [6](n)

 80   Respondent’s final submissions dated 30 January 2018 at [17], Exhibit AR1 Statement of Agreed Facts at [34] - [38] PN2184 – PN2188, PN394, PN395, PN404, PN671, PN672

 81   Respondent’s final submissions dated 30 January 2018 at [18]

 82   Exhibit AR1, Statement of Agreed Facts at [36]

 83   Exhibit AR1, Statement of Agreed Facts at [38]

 84   Respondent’s final submissions dated 30 January 2018 at [18]

 85   Applicants’ final submissions dated 23 January 2018 at [11] – [13], [20] and [29]

 86   PN2862 – PN2869, Applicants’ final submissions dated 23 January 2018 at [14]

 87   PN4128 – PN4129

 88   Exhibit AR1, Statement of Agreed Facts at [36] and [38]

 89   Respondent’s final submissions dated 30 January 2018 at [54] – [59]

 90   Exhibit R5, Witness Statement of Brian Sim, Annexure C (Mr Fitzgerald) at p.28, Exhibit A3, Witness Statement of Nicholas Fitzgerald at [40] and PN1311 - PN1323

 91   PN1324 – PN1325

 92   PN4102

 93   PN4455

 94   PN4125

 95   Applicants’ final submissions dated 23 January 2018 at [13] – [14]

 96   Respondent’s final submissions dated 30 January 2018 at [45] – [50]

 97   PN4180

 98  Applicants’ final submissions dated 23 January 2018 at [6](w) - (x)

 99   Exhibit A5, Witness Statement of Jeff Weekley at [69], PN1856, PN2038, Applicants’ final submissions dated 23 January 2018 at [6] (q)

 100   Respondent’s final submissions dated 30 January 2018 at [21]

 101   Respondent’s final submissions dated 30 January 2018 at [22] – [27]

 102   Exhibit AR1, Statement of Agreed Facts at [46], [58]

 103   Applicants’ final submissions dated 23 January 2018 at [8] , [21] and [30]

 104   Applicants’ final submissions dated 23 January 2018 at [22]

 105   Respondent’s final submissions dated 30 January 2018 at [62] and [63]

 106   Exhibit R8, Witness Statement of Luke Jenner at [16]

 107   Applicants’ final submissions dated 23 January 2018 at [6](y), PN2405, PN2415, PN3612

 108   Applicants’ final submissions dated 23 January 2018 at [6](z)

 109   Applicants’ final submissions dated 23 January 2018 at [6](aa)

 110   Exhibit A4, Witness Statement in reply of Nicholas Fitzgerald at [7] and [9], Exhibit A2, Witness Statement in reply of Gavin Campbell at [4] and[ 8], Exhibit A6, Witness Statement in reply of Jeff Weekley at [8], PN482, PN1158, PN1520, PN2069 and PN2070

 111   PN2723 - PN2735, PN2745, PN2748 – PN2749, PN2751, PN2762 – PN2764, PN2779 – PN2817

 112   PN3590 – PN3954, PN3604

 113  Applicants’ final submissions dated 23 January 2018 at [6](bb)

 114  Applicants’ final submissions dated 23 January 2018 at [6](cc)

 115   Applicants’ final submissions dated 23 January 2018 at [6](dd)

 116   PN4264

 117   PN1897

 118   PN2236

 119   PN2250 see also PN1949

 120   PN1608

 121   Applicants’ final submissions dated 23 January 2018 at [30], PN720

 122   PN4271

 123   PN4273

 124   Applicants’ final submissions dated 23 January 2018 at [6](ee), PN3595 – PN3627

 125  Applicants’ final submissions dated 23 January 2018 at [6](ff), PN2820 – PN2826

 126   Respondent’s final submissions dated 30 January 2018 at [30] – [33]

 127   Exhibit R8, Witness Statement of Luke Jenner at [18]

 128   Exhibit R6, Witness Statement of David Nardi at [52](c)

 129   PN4651, PN4653

 130   PN4859

 131   Applicants’ final submissions dated 23 January 2018 [16], [24] and [31]

 132   Applicants’ final submissions dated 23 January 2018 [8]

 133   Applicants’ final submissions dated 23 January 2018 [25] and [32]

 134   Respondent’s final submissions dated 30 January 2018 at [65]

 135   Respondent’s final submissions dated 30 January 2018 at [66] see also [29] – [31]

 136   Respondent’s final submissions dated 30 January 2018 at [69]

 137   Respondent’s final submissions dated 30 January 2018 at [67] – [68]

 138   Exhibit AR1, Statement of Agreed Facts at [47] – [48]

 139   PN3743 – PN3744

 140   Exhibit R8, Witness Statement of Luke Jenner at [85](e), PN3741, Respondent’s outline of submissions dated 13 November 2017 at [156](g), Respondent’s final submissions dated 30 January 2018 at [96], PN4763

 141   PN3742

 142   Exhibit AR1, Statement of Agreed Facts at [49]

 143   Exhibit R5, Witness Statement of Brian Sim, Annexure C (Mr Fitzgerald), D (Mr Weekley) and E (Mr Campbell)

 144   Exhibit R5, Witness Statement of Brian Sim, Annexure C (Mr Fitzgerald) at p.31

 145   Exhibit R5, Witness Statement of Brian Sim, Annexure C (Mr Fitzgerald) at p.28, Exhibit R5, Annexure E (Mr Campbell) at p.9

 146   Exhibit AR1, Statement of Agreed Facts at [50] – [53], Exhibit R5, Witness Statement of Brian Sim, Annexure C (Mr Fitzgerald) at p.32

 147   Exhibit AR1, Statement of Agreed Facts at [54] – [57]

 148   Exhibit R1, Volume 1 of Exhibits, Fair and Just Culture Policy at Tab 7

 149   Applicants’ final submissions dated 23 January 2018 at [6](gg)

 150   Applicants’ final submissions dated 23 January 2018 at [37] – [42]

 151   Respondent’s final submissions dated 30 January 2018 at [86] – [89]

 152   Respondent’s final submissions dated 30 January 2018 at [98]

 153   Exhibit R8, Witness Statement of Luke Jenner at [20]

 154   Exhibit R8, Witness Statement of Luke Jenner at [72]

 155   Respondent’s final submissions dated 30 January 2018 at [95] – [98]

 156   Applicants’ final submissions dated 23 January 2018 at [6](hh)

 157   Applicants’ final submissions dated 23 January 2018 at [45]

 158   Applicants’ final submissions dated 23 January 2018 at [50], PN3292 – PN3310

 159   Respondent’s final submissions dated 30 January 2018 at [90] (a) - (h)

 160   Respondent’s final submissions dated 30 January 2018 at [91]

 161   Applicants’ final submissions dated 23 January 2018 at [51]

 162   Applicants’ final submissions dated 23 January 2018 at [52]

 163   Respondent’s final submissions dated 30 January 2018 at [92]

 164   Exhibit A7, Witness Statement of Jamie Main at [29] - [32]

 165   Exhibit A7, Witness Statement of Jamie Main at [29], Annexure JTM-11 – JTM-12

 166   Exhibit A7, Witness Statement of Jamie Main at [30], [31], Annexure JTM-10

 167   Exhibit A7, Witness Statement of Jamie Main at [31](b),(d)

 168   PN3079 - PN3085

 169   Exhibit A7, Witness Statement of Jamie Main at [31](e) – (g)

 170   Applicants’ final submissions dated 23 January 2018 at [53], PN3027 – PN3033

 171   PN2608 – PN2618

 172   PN3571 – PN3573

 173   PN3104 – PN3119, PN3163 – PN3175

 174   Applicants’ final submissions dated 23 January 2018 at [54]

 175   Respondent’s final submissions dated 30 January 2018 at [93] – [94]

 176   Applicants’ final submissions dated 23 January 2018 at [56] – [58]

 177   Respondent’s final submissions dated 30 January 2018 at [101] – [105]

 178   Applicants’ final submissions dated 23 January 2018 at [6](a)-(b)

 179   Applicants’ final submissions dated 23 January 2018 at [6](d), Exhibit A3, Witness Statement of Nicholas Fitzgerald at [17]

 180   Applicants’ final submissions dated 23 January 2018 at [6](e)-(f)

 181   Applicants’ final submissions dated 23 January 2018 at [6](g), Exhibit A3, Witness Statement of Nicholas Fitzgerald at [18]

 182   Applicants’ final submissions dated 23 January 2018 at [6](y)

 183   Respondent’s final submissions dated 30 January 2018 at [31] – [32]

 184   Respondent’s final submissions dated 30 January 2018 at [33]

 185   Respondent’s final submissions dated 30 January 2018 at [13]

 186   PN1039 – PN1040

 187   PN1152 – PN1153, PN1991 – PN1992 and PN2236

 188   Exhibit AR1, Statement of Agreed Facts at [10], [16]

 189   Respondent’s final submissions dated 30 January 2018 at [40] – [41]

 190   PN4180

 191   Applicants’ final submissions dated 23 January 2018 at [13] – [14]

 192   PN955

 193   Exhibit R5, Witness Statement of Brian Sim, Annexure C (Mr Fitzgerald) at p.28

 194   Exhibit A3, Witness Statement of Nicholas Fitzgerald at [40] and PN1313 - PN1325

 195   Exhibit AR1, Statement of Agreed Facts at [35]

 196   Applicants’ final submissions dated 23 January 2018 at [8], [21] and [30]

 197   Applicants’ final submissions dated 23 January 2018 at [22]

 198   PN720

 199   Applicants’ final submissions dated 23 January 2018 [16], [24], [25], [31] and [32]

 200   Exhibit R1, Volume 1 of Exhibits, Code of Conduct at Tab 4, p.3, see also page 5 as it relates to standards of personal and professional conduct and Respondent’s final submissions dated 30 January 2018 at [65]

201 Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21 (4 June 1931), [(1931) 45 CLR 359] at 373, 377‒378

 202   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

203 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at para. 24

 204   Potter v WorkCover Corporation PR948009 (Ross VP, Williams SDP, Foggo C, 15 June 2004) at para. 55, [(2004) 133 IR 458]. See also Annetta v Ansett Australia Ltd Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at para. 10, [(2000) 98 IR 233]

 205   PN4086 – PN4089

 206   Exhibit R1, Volume 1 of Exhibits, CECM1000.02 - Health, Safety and Environmental Manual Risk Management at Tab 9

 207   Exhibit R8, Witness Statement of Luke Jenner at [72]

208 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410

209 (1995) 185 CLR 410 at [465]

 210   BHP Coal Pty Ltd v Schmidt (2016) 257 IR 11

 211   (2016) 257 IR 11 at [24] – [25]

 212   (2016) 257 IR 11 at [17]

 213   PN4088 – PN4089

214 B, C and D v Australian Postal Corporation [2013] FWCFB 6191

215 [2013] FWCFB 6191 at [41]

 216   PN4088 – PN4089

217 [2013] FWCFB 6191

218 [2013] FWCFB 6191 at [41]

 219   PN4088 – PN4089

220 [2013] FWCFB 6191

221 [2013] FWCFB 6191 at [41]