Girolamo Facchin v Tasmanian Networks Pty Ltd T/A TasNetworks

[2020] FWC 2796

[2020] FWC 2796

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Girolamo Facchin
v
Tasmanian Networks Pty Ltd T/A TasNetworks
(U2018/2585)

DEPUTY PRESIDENT BARCLAY HOBART, 29 MAY 2020

Application for an unfair dismissal remedy.

[1] The Applicant has applied for reinstatement as a result of the dismissal of his employment with the Respondent. He was employed by the Respondent for 12 years prior to his dismissal. He was dismissed for misconduct in the course of his employment.

[2] He was employed as a Distribution Operator. The industry is the electrical industry. The Respondent is a state-owned corporation that supplies power from the generation source to homes and businesses through a network of transmission towers, substations and power lines.

[3] He alleges that there was no valid reason for the dismissal and that the dismissal was harsh, unjust and unreasonable.

Preliminary matters

[4] The Applicant gave evidence and otherwise relied on a number of witness statements. The Applicant also wrote emails relating to his version of the incident, and there are notes of meetings and a recording made within a few minutes of the incident detailing what the Applicant had to say about the incident.

[5] The Respondent led evidence relating to how the task being carried out by the Applicant is to be carried out together with evidence and documents relating to the events subsequent to the incident and leading up to the decision to terminate the employment.

[6] It is apparent that the credit of the Applicant is a significant matter in determining this case, and in particular what occurred during the incident leading to the dismissal and what the Applicant knew about what was occurring. I have carefully reviewed and considered the evidence. I have listened to the evidence of the material witnesses, particularly where issues of credit arise in addition to taking into account the written material. I should add that I do not refer to all of the evidence tendered at the hearing. I refer to the evidence which is significant in reaching my decision.

The Circumstances leading to dismissal

[7] On 20 August 2017 the Applicant was carrying out switching as a result of a discharge issue at the Launceston Magistrates Court Substation.

[8] The purpose of switching is to provide safe access to the network for maintenance or construction purposes. The purpose of switching work is to isolate the work area from any source of energy.

[9] The switching task is a detailed set of steps to be followed to de-energise the part of the network to be worked on. The work is safety critical. Indeed, the person carrying out the physical work of switching wears a protective suit and the area in which that person works was described in evidence as the explosion zone.

[10] The steps to be undertaken are contained in a switching sheet. The switching sheet goes through a development process and requires peer approval before it is approved for the work to be done. The switching sheet contains a set of sequential steps to be followed to de-energise the part of the network to be worked on. The work is in incremental steps. Each switch step is actioned, the operators sign off on the step and include a time at which the step was completed. That is done at the time each step is carried out.

[11] The steps must be followed in exact sequence to prevent risk to the persons carrying out the switching, the parties carrying out the maintenance and the public. Additionally, carrying out the work in sequence also prevents damage to the network physical assets as well.

[12] Switching is the most critical fatality prevention control in the operations of the Respondent.¹ Mr Craig Mackey described that process as follows: 2

“And I guess to describe isolation in simple terms, what you are doing is if you think about a piece of continuous cable, we have these switches which we can see in here which form part of that electrical circuit. Inside of those are essentially the capacities to put an air gap between part of the – yes, put an air gap in the continuous section of cable. So if you think about a cable at both ends, it's connected to a power source at point A, and connected to a power source at point B. By actioning this line switch what you actually do is put a physical air gap in that cable. You are essentially taking away part of the cable and it's discontinuous now. And what you've done is remove the energy source. You would then go to the other end of that cable, do the same thing, so you've now got essentially a piece of cable sitting in air. There's no potential for energy – you know, there's no potential for anywhere for that to be connected back to the circuit. You then apply earths after testing for dead to ensure that if there were something to happen that there's a possibility that the energy – well, not a possibility, provide a path for the energy to go down to the ground rather than into people interfacing with the apparatus and/or cause damage to the apparatus.

THE DEPUTY PRESIDENT: But that's earthed, that piece of isolated cable?---Sorry?

The earth is for that piece of isolated cable?---Yes, that's right.

What happens to the electricity that is stopped?---Basically that's diverted so part of the switching sequence, and this is why they're at times quite complicated, is a lot of the switching sequence is about diverting the energy sources around to - - -

But you do that first before you isolate?---Yes. It is part of the whole sequence to make sure there's continuity of supply to the rest of the network whilst you're isolating that piece of cable.

Yes?---And essentially the upshot of all of that is you are providing a safe workplace for people to now work on that cable, you know, touch it, feel it, cut it, do whatever you need to do, because it is essentially a piece of conduit or conductor isolated for any other energy source.

MR COLLINSON: So what's the difference between the line switch and the earth switch in the photo, in the left and the right, in terms of what they do?---So the line switch is as described before, that is the thing that actually breaks the circuit, provides that actual discontinuous gap in the circuit. The earth switch is essentially - on that cable provides now a pathway for that cable to go down into the earth, so it's bonded to the earth. And if you have a – whether it be a large full current or something else that's happened and introduced energy into that piece of cable it gives a pathway for that energy to dissipate into essentially the ground, without it going through whether it be people or other equipment.

So paragraph 18 of your statement you refer to it as "safety of a critical nature"?---Yes.

Why do you refer to it as that?---Well, we're dealing with very large energy sources in this industry. And the need to follow these sequences, you know, absolutely one step after another step after another step, is to preclude the situation where you inadvertently energise a part of a circuit that people may be working on. In lay terms, this is the stuff that kills people. It's got the potential to explode and have large arc flashes or draw an arc, and you assume that with arc flash burns with fatal capacity – it's why these guys wear, in the – in the blast zone, where bomb suits because of that actual risk.

So why it's a safety critical nature is it's the energies that you're dealing with so we – even to develop a switching sequence it goes through a lot of rigorous steps of development. It's cross checked, it's referenced, peer reviewed, it is then taken out into the field. You have two people assisting in performing this work and that is to ensure – and the reason for the second person is to ensure that they're at the right apparatus, they're at the right step of the sequence, and everything else is in place before they actually move to the next step of that switching sequence. So it's there to assist our people in ensuring that they don't have a moment of lapse of judgment or, you know, some other – something else has diverted their attention. It is so that they can – I guess so that we are confident that they can always follow the switching sequences in order.

MR COLLINSON: And so why is there an operator in charge of that work? Like, why not just have one operator doing it?---All right, so switching operations can occur where you've got people at all different distances across the network, sometimes separated by kilometres, and essentially it's critical that one person is in control of all of the switching sequence.

Because a number of those communications for switching sequences to be done need to be given from one person, so you might standing at the – like, for in this example you're standing at the magistrate headquarters. You then call the two guys that are at the police headquarters to execute their switching duties. You require them to call back and tell you that, "yes, we've completed switching sequence 64, 65, 66." They have got a duplicate copy of the switching sheet. They sign and countersign it, the two operators at the other end. The operator in control acknowledges that by signing and putting the times on. They would then need to communicate with the distribution control room, again to do the similar process.

So everybody across that network that's working on the apparatus is essentially crystal clear of where the switching sequence is up to. Because again if you're interfacing with this sort of energy obviously you don't want to be interfacing when there could be energy on that part of the circuit. So that's why you have an operator in control.”

[13] As can be seen the task is carried out by two workers. One who does the physical work (in this case Alistair Jessup) and the other the Operator in Charge (OIC), who was the Applicant. The OIC is responsible for ensuring the switching is done in sequence and for completing the switching sheet. The role is to ensure the task is carried out in sequence and therefore safely.

[14] On the day in question the Applicant and Mr Jessup were working through the switching sheet until they came to earth the lines. Line A was successfully switched. However, when trying to earth line B Mr Jessup had difficulties. The switch gear appeared to be jammed. As a result, Mr Jessup removed a Do Not Operate tag, inserted a handle into the line switch (which is different to the earth switch) and manipulated the lever in the line switch. The removal of the Do Not Operate tag was in breach of the rules and manuals applicable to the task³. The risk of manipulating the lever is to effectively remove the isolation point and to re-energise the lines.

[15] What transpired here is that by jiggling the lever the line became re-energised and caused a feeder at the Trevallyn Power Station to trip. In short, a potentially very dangerous situation was caused.

[16] The conduct is a serious safety breach. Mr Jessup’s employment was terminated as a result of the conduct.

[17] For his part the Applicant accepts that the conduct of Mr Jessup was very dangerous. He agreed that if he as seen the conduct of Mr Jessup, he would have told him to stop.⁴ The issue is what did the Applicant know about what Mr Jessup was doing and what should he have done.

The Parties Contentions

[18] The Applicant maintains that he did not see what Mr Jessup was doing because Mr Jessup was obstructing his view of the Switch Gear. In essence the Applicant says he did not engage in any conduct which caused the incident, could not have known, because of the distance between himself and Mr Jessup, what Mr Jessup was doing an did not see the conduct. In consequence the Applicant asserts that there was no valid reason for the dismissal because he was not in a position to do anything about the conduct of Mr Jessup. In addition, the Applicant submits that in any event the dismissal was harsh, unjust or unreasonable.

[19] The Respondent however submits that the Applicant did know what Mr Jessup was doing, that he should have known it was dangerous and out of sequence and as OIC he should have stopped Mr Jessup. In essence the Respondent says the Applicant was a part of and party to the serious safety breach and that dismissal as appropriate.

The Evidence of the Applicant

[20] In his witness statement the Applicant said the following: 5

To free up a jam, they remove the cover and lubricate the switch gear and slightly move things around, this normally causes the switch gear to fix itself. However, I did not discuss removing the cover with Alastair and I did not advise to do this.

Alastair then removed the Do Not Operate tag, inserted the line switch handle and began jiggling the line switch.

I did not see any of these actions physically occur because Alastair was obstructing my vision.

However, I could hear him rattling something and I assumed it to be the line switch to try get the earth and line switch interlocks to line –up.”

[21] When first giving an account of what had occurred, which was to a Distribution Operations Officer (DOO) shortly after the incident, the Applicant said that at the time of the tripping he was not looking at Mr Jessup.

[22] A few minutes later the Applicant told the DOO the following: 6

“DOO rings Operator and the following transcript was recorded.

“Operator 2 (O2) how ya going.

DOO ooh mate the phone is just ringing off the hook in here I’m trying to catch up with this switching.

O2 I think I know what is going on there. So at Item, 50 we proved de-energised with all the lights are off there LED’s n that, then at item 71 we are trying to close the earth the Earth Switch would not move over far enough and we tried to manipulate the line switch a bit. Trying to lift it up so we could get this Earth Switch open and obviously we have probably gone over the its gone its closed on, if you know what I mean? It is gone over the cam or what ever.

DOO like a 3 position close, open, earthed.

O2 Yeah no it’s just a normal Line Switch it must have like a cam on it and looks like we have moved it up too high to get this Earth Switch open I mean Closed sorry and its closed onto the bus I reckon, that is what has happened.

DOO ooh its gone onto the bus ooh.

O2 You know the Line Switch closed onto the bus.

DOO so when you do that ok.

O2 yeah because this Earth Switch we could not get it to could not get it to close, its got like a leaver there a pin that goes into the Line Switch and it was jammed so we tried to lift the Line Switch up a little bit to get this pin out it must have gone over the cam I reckon its closed on to the bus in the switchgear. So its looks like there is an issue with this Line Switch. We can I, suppose we can I will earth it now and do what we need to do but we are going to have to open the earths off the other end of this cable and just see. Yeah this line switch is going to need looking at I think with the earthing. I think they have had trouble with this line Switch before.

DOO I wonder if we can leave it open at the end of the switching providing the loads are too great for Mowbray, Harvey Norman, there is a bit of load through there.

O2 we will need to get this Line Switch replaced I reckon, it not good like it is.

DOO so at the moment you have a line switch “B” open at 250, Line Switch “B” open at Police Head Quarters

O2 And we will just connect the earths on here now this Line Switch hang on just close the earth on. Yep so the cable is earthed.

DOO tranny still humming

O2 its just cause that Line Switch you could not, (??? Not auditable) its got like an interlock on it so when is its off.

DOO you are at the magisterial Court sub 250 and you have just put that into the earthed position.

O2 so we have done item 71.”

[23] It may be seen that the Applicant uses the phrase “we”. In an email statement of 24 August 2017, the Applicant said: 7

“We proved that de cable was indeed the energised by the leds on the switchgear and that the open symbol was displayed in the status indicator area. We tried to earth the cable but the earth lever would not move.

We took the cover off the top of the cubicle to see what was happening. For some reason the earth lever was jammed. We found that the earth interlock was not lining up properly. Alastair was trying to jiggle the line switch in an attempt to line up the earth interlock bar.

I left Alastair to try to sort it and went to fill in the times from ops on the sheet. I was around the side of the transformer when I noticed that the power went off and everything was quiet.”

[24] Again, the Applicant uses the term “we”. He also says that “Alistair was trying to jiggle the line switch in an attempt to line up the earth interlock bar”.

[25] In a further interview the next day the Applicant continues to use the word “we” and describes leaving Mr Jessup to work on switch B and that Mr Jessup was “giggling (sic) the leaver (sic) trying to get it to work.⁸”

[26] The Applicant subsequently attended a meeting that Lachlan Baird attended who took notes. The notes of that meeting say the following⁹:

“Gerri said: I didn’t actually see him do it. So the handle is on this side and Ally is here, so I’m standing here. He took the cover off and we are looking into it. Then I see him jiggle the line handle. Well I saw him from the side. He took the top off it, so I have gone over to have a look at what was going on, so then I have noticed he’s jiggling the line handle a little bit. So I thought oh well, he is sorting it out. Yeah I understand there was a DNO on. No I don’t believe the handle was protected by a DNO tag. The tag is there so you don’t close the switch, he was trying to prove that it was open, he’s trying to engage the earth, he’s trying to line the interlock up so that the earth would close by jiggling the line handle. No I didn’t open the switch. Yes we put a tag on.

Keith said it’s a lock out regardless of the type of tag or lock it is. It means don’t operate.”

[27] At a further meeting on 4 December whereby the Applicant was given further information and was taken through his previous statements the Applicant said:¹⁰

“AH: you can remove the cover without taking the tags off.

GF: I am aware that he would have removed the cover I am only referring to the cover not the tag.

KF: Moving down then, the next point VH makes is that you removed the switch and put a DNO tag on. Then we took the tag off to try and operate the switch.

GF: It’s not saying I tlook it off, I am saying that would have had to have happened.

KF: This first two statements are saying that you are aware of what happened.

AH: We are struggling to see where these differences are.

KF: When we get 5/10 and this is your response to the interview here. To reiterate it, I didn’t remove the tag, nor did I see the tag was removed. Quiet clearly you would have seen him insert the handle and removed the tag.

GF: All I saw was AJ was him trying to jiggle it a little bit to try and get the earth handle to operate. I did not see him remove the tag of the earth handle.”

[28] A further meeting took place on 10 January 2018 the noted of which reveal the following:¹¹

“GF: He was jiggling the switch, he was trying to earth it, I saw him doing that and I thought oh well. He knows what he is doing, jiggling should not have closed it, I wasn’t comfortable, but he knows what he is doing. I know he knows the gear so I left him to it.”

[29] It may be seen that the Applicants account was not consistent. Initially the Applicant reports a joint process whereby both he and Mr Jessup were engaged in the process (“we”). That transformed into Mr Jessup carrying out the activities and the applicant not seeing what Mr Jessup did at all. The Applicant was cross examined about these issues.

[30] The Applicant in cross examination about these issues was in my opinion unconvincing. He gave answers which were inconsistent with his witness statement. For example is his witness statement he said that he did not see any physical actions which Mr Jessup carried out in respect to the switch. . However, when pressed he conceded that he could have been standing next to Mr Jessup when he was taking the cover off and lubricating the mechanism¹².

[31] Further when faced with the answer he gave which I have set out above from the meeting of 23 October (in which he says he’s standing near Mr Jessup while Mr Jessup is jiggling the line) he denied he said it. However, no issue was taken with the veracity of the notes.

[32] I also note that the Applicant was, when tested about where he was standing and what he was seeing, claimed he was unable to remember.¹³ I found that unconvincing.. Again when it was put to him that he had said at the meeting on 10 January (also set out above) that he saw Mr Jessup trying to earth the switch he retreated to the position that he could not remember.

[33] Overall, I find the Applicants evidence at the hearing regarding the incident as unconvincing. I do not accept the explanation that he assumed these things happened. His evidence during the investigation had been that he had involvement in the removal of the cover and the lubrication of the mechanism. I do not accept that the Applicant did not see what Mr Jessup was doing. He was aware, because he saw it (and most certainly heard it) that the lever in the line switch was being jiggled. I find that the Applicant was aware of what Mr Jessup was doing. I find that at least on one occasion the Applicant was next to Mr Jessup finding out what was going on. I find that his explanation for using the term “we” as not intended to include his state of knowledge unconvincing.

[34] As the Respondent points out in its closing the Applicant also raised some new issues which he had not raised before. Those were that his entire focus was on the switching sheet and, that while Mr Jessup was struggling with the earth switch he went up to Mr Jessup to find out what was going on and even though the Applicant could not see what Mr Jessup was up to he did not move to get a better view. The Respondent submits that going up to Mr Jessup to see what was going on but then not moving for a better view does not make sense. I agree. I also find it significant that the Applicant conceded he did go up to the Applicant notwithstanding he had previously said he had not.

[35] I also agree that recourse to the version of events, inconsistent with earlier statements, that he did not know what Mr Jessup was doing other than jiggling the handle are an attempt to minimise his involvement rather than evidencing a genuine lack of understanding of what was going on.

[36] Significantly the Applicant was aware that putting the lever into the line switch and jiggling it was contrary to the switching sheet as was removal of the Do Not Operate tag. He agreed that the removal of the tag was out of sequence and contrary to the relevant safety rules. The Applicant gave evidence that while he was aware that the line was being jiggled, he left it to Mr Jessup to fix. That is not consistent with the responsibility as OIC to ensure the switching remained in sequence.

[37] I find that the Applicant was aware of what Mr Jessup was doing, was aware that what was happening was out of sequence and dangerous. I find that he failed to fulfil his role as OIC and prevent the conduct from continuing. I find that the Applicant was directly involved in a serious safety breach, failed to act safely and was in breach of relevant safety rules.

Was there a valid reason for dismissal

[38] The Applicant submits that the conduct of the Applicant must be serious misconduct in accordance with regulation 1.07(2) of the Fair Work Regulations 2009. However, I note that the dismissal in this case was not a summary dismissal. The Applicant nevertheless was dismissed on notice for misconduct. In my opinion however the Applicants failure to intervene when he knew that the switching was out of sequence and should not have continued caused serious and imminent risk to the health and safety of a person and did amount to serious misconduct. It is to be remembered that the case involves electricity.

[39] The Applicants failure to intervene was deliberate. Even on his case he was aware, because he had heard it, that Mr Jessup was jiggling the switching line. He was aware that was out of sequence. He was aware the line had not yet been successfully earthed and was therefore still live (because that was why Mr Jessup was doing what he was doing). Those circumstances created a situation of potential danger. The situation also developed over time. It was not an incident which happened is a split second. There was opportunity for the Applicant to stop the process upon which Mr Jessup had embarked.

[40] It is to be noted that Mr Jessup was wearing a bomb suit and that there is an area at the workplace known as a blast zone. It is also to be noted that the Applicant gave evidence of a serious previous incident where switching had not occurred properly. It cannot be overlooked that one is dealing with electricity and the proper isolation of it. While the risk of a catastrophic event occurring is low, if something does go wrong then the consequences will be severe. Failing to properly isolate electricity could cause serious and imminent risk to health and safety.

[41] I should also address a matter which was significant during the hearing which was that the jiggling of the lever in the line switch was not likely to cause the incident. It must be accepted on the balance of probabilities that the jiggling of the lever did cause the incident. The Respondent carried out testing which could not identify the manner in which the jiggling caused the tripping at the Trevallyn Power Station. However, when dealing with the civil burden, in the absence of any other plausible explanation it must have been the jiggling which caused the event. Certainty no other cause has been identified and it is noted the tripping occurred at the same time as the manipulation of the switching line.

[42] In any event in my opinion the difficulty with the Applicants conduct is not to be measured against whether the jiggling would be likely to cause the tripping. His failure to prevent the work getting out of sequence and permitting the jiggling of the line switch was the problem. If it was the case that an employee was permitted to act or allow someone else to act in a way which could cause serious consequences albeit that the chances of the consequences occurring was unlikely then a lot of conduct could go unchecked. The point about these protocols is to remove that risk, not to permit the risk to be run because a potentially dangerous outcome is not likely.

[43] I find there was a valid reason for the termination of the Applicants employment. I find that the Applicant knew what was occurring. I find he was a party to it in that he jointly involved in what was occurring. He knew that the cover of the switch had been taken off. He knew that the Do Not Operate tag had been removed (albeit he may not have known precisely when it was removed) and he knew that the lever had been inserted into the (live) line switch. He knew the lever was being manipulated in the line switch. He should have acted to prevent the manipulation of the line switch. He could have done that at a number of stages but failed to act. Had he acted the incident would not have occurred.

[44] All of these considerations are to be made against the background that the Applicant was dealing with a very dangerous thing, namely electricity. The need to ensure the tasks are done safely cannot be overlooked. I find that the reason based on the conduct of the Applicant was sound, defensible and well founded.

[45] The Applicant in his closing submissions deals with the issue of lack of trust and confidence. It is true that the Respondent relied on a lack of trust and confidence as a ground to terminate the Applicants employment. As I have found that the conduct at the substation was sufficient to establish a valid reason for termination, I do not need to consider that here. Suffice it to say that the Applicants failure to understand that a failure to act can be as serious as committing an act (his case relies in part on the fact he did not commit an act), and that the apparent complete absence of acceptance of any responsibility for the incident is troubling and seems to indicate a lack of understanding of the significance of the switching and the role of the OIC.

Procedural Unfairness

[46] The Applicant in his closing submissions deals with the matters referred to in sections 387(b) to (e) of the Fair Work Act 2009 together. I will do the same.

[47] The Applicant submits that the procedure adopted by the Respondent was fundamentally flawed causing the dismissal to be unjust and/or unreasonable

[48] When considering the matters of harshness, unjustness and unreasonableness I have regard to the authorities referred to by the parties.

[49] The Applicant submits that he was not afforded a genuine opportunity to respond to the allegations and/or the reasons for dismissal.

[50] The Applicant asserts that the Respondent was unwilling to properly consider the Applicants versions of events in respect to the incident. I do not agree. The Applicant held a number of meetings and the Applicant provided a number of written responses. There were meetings in August 2017, January 2018 and February 2018. The Applicant had raised two disputes regarding the investigation process. There were some meetings about that. There were also four meetings dedicated to the incident (including the meeting at which the Applicant was notified of his dismissal on 21 February 2018). The penultimate meeting on 15 February 2018 was for the purposes of allowing the Applicant to provide any final information.

[51] It can also be seen from the lengthy termination letter of 21 February 2018 that the Respondent considered a range of matters put to it including written material and information provided at the meetings.

[52] There is no evidence that the Respondent failed to consider any of the material provided by the Applicant. The complaint essentially seems to be one that the Respondent did not accept the Applicants version of events and failed to appreciate that the Applicant did not do anything. I have dealt with this when considering the evidence and valid reason. In my view it was open for the Respondent not to accept the material provided by the Applicant or to take a different view of that material in light of its investigation.

[53] The Applicant asserts that the Respondent was guilty of misleading conduct throughout its investigation. The allegation is broken down into 4 matters.

[54] Firstly, that Mr Hall, who contrary to the wishes of the Applicant, covertly recorded a meeting. The Respondent accepted that Mr Hall was dishonest about the recording. The Applicant noted that Mr Hall had an ongoing role in the investigation (albeit that the recording was not used). It is submitted that this is misleading. It is certainly the case that continuing to record the meeting when the applicant refused his consent may be misleading. However, it does not follow that anything else is misleading. It also does not follow that the misleading conduct of Mr Hall by recording the meeting affected the investigation as the recording played no role.

[55] In cross examination of Mr Hall, it was put that he prepared a list of other matters which had come to the notice of the Respondent about the Applicants conduct. It was also put that Mr Hall had prepared part of the risk matrix for the investigation report. No doubt this was an attempt to infect those tasks with the dishonesty which affected the recording. However, that was not put to Mr Hall. He was taken through each entry for the previous matters and it was explained that they did not amount to formal disciplinary matters. It was not put to the witness however that he drafted the list of prior matters with a view to misleading anyone. It is also of note that the Applicant was asked to respond to those matters when responding to the show cause letter dated 16 January. If the list of matters was misleading then the Applicant had an opportunity to make representations about that in his response.

[56] Whilst Mr Hall was guilty of misleading conduct in recording an interview, I do not regard his involvement as having any material effect on the investigation. It certainly has not been put that the recording of itself amounted to procedural unfairness, presumably because it was not used and therefore there was no consequence to that failure of procedural fairness.

[57] Next the Applicant submits that there was procedural unfairness in that a Mr Falconer who was involved in the matter was not called as a witness. Further two other persons were not called as witnesses. The particular complaint is that Mr Falconer and Mr Mackey made enquiries of other distribution operators to find out how they would have handled the scenario which confronted the Applicant and Mr Jessup. None of those operators were called. It is submitted that I should draw an inference that their evidence would not have assisted the Respondent.

[58] I note that the enquiries were made during the course of the investigation. The material gleaned is not referred to as a reason for termination although it is referred to in the Investigation Report.

[59] The difficulty with the Applicants submission is that he seeks to conflate the making of an adverse inference with misleading conduct. There is no evidence that the inquiries were not made. Mr Mackey said they were. If an inference is to be drawn it can only be that the evidence would not have helped. There is no material available to make the inference the applicant seeks – that they did not provide that feedback. The only evidence in that regard is from Mr Mackey who is in fact one of the persons who spoke to other operators. He gave evidence that he was confident that had the witnesses been called they would have supported that Respondents case. Mr Mackey was not challenged on that answer.

[60] This is one reason why inferences are limited to an inference that the evidence would not have helped. If any further more specific inference is to be drawn there needs to be evidence for the tribunal of fact to act on to draw that inference. The inference that the witnesses evidence would not have assisted may be no more than saying the effect of the not calling the witness is neutral. It will depend on each individual case. In this case even if an inference is to be drawn, I do not find that the Applicant has been misled. Rather the issue is properly to be dealt with on the basis of inferences.

[61] In this case if any weight was given to those enquiries it is not clear what weight was given to that material. In any event I do not accept that there is an absence of procedural fairness is the form of misleading conduct as claimed by the Applicant. As stated the matter is to be dealt with by way of appropriate inferences and not on the basis that a failure to call a witness is misleading. In my opinion even if the inference is drawn it does not affect my finding that there was a valid reason for the termination of employment. The evidence goes to whether the Applicant should have done something else (i.e. contacted the DOO). I have disregarded that material for the purposes of my findings.

[62] The Applicant also asserts that he was misled in that the Respondent asserted that a Health and Safety Representative (HSR) had been involved in the investigation. It is clear that no HSR had been involved. To that extent the representation was misleading. However as with all failures to accord procedural fairness I must determine whether the absence of procedural fairness in the form of the misleading conduct had an adverse consequence for the Applicant. It was not submitted that there was a consequence of not there being no HSR. I am unable to find a disadvantage to the Applicant arising from the absence of an HSR.

[63] Throughout the investigation the Applicant was assisted by a person of his choosing. He made written and oral representations to the Respondent. No submissions have been made to me as to how the failure of an HSR has affected the investigation to the Applicants disadvantage.

[64] There is no want of procedural fairness due to their having been no HSR appointed in this case.

[65] I do not find that the misleading conduct so infected the investigation that the dismal was unjust.

[66] The Applicant submits that the Respondent failed to investigate the Applicants claim that the tripping out at the Trevallyn Power Station was caused by faulty equipment.

[67] In my view the submission is misconceived. The claim is that this would not have happened had the equipment not been faulty. In my view that is a misapprehension of what occurred. The reason the incident occurred was because the lever was placed into the line switch and jiggled. That should not have occurred. Had the proper procedure been followed the Do Not Operate tag would not have been removed, the lever would not have been inserted into the line switch and the line switch would not have been jiggled.

[68] In any event, an assessment was carried by Mr Hughes who is an engineer with appropriate qualifications. His inspection did not reveal any defects.

[69] The Applicant asserts that the machine should have been fully striped down. However, there is no evidence upon which the Applicant relies for that proposition. It does not appear that Mr Hughes recommended a full strip down. On the facts of this case I cannot determine that a full strip down was warranted. Mr Hughes gave evidence that usually one would not commonly take apart the mechanism. He said this: 14

“In undertaking your assessment did you pull apart the switch gear?---Yes. So we pulled apart the top panel to have, I guess, a brief look at the components and see if there were any major issues. With the operational checks that we did do, we identified issues with unit A and C, so there wasn't any need to go any further with those units, we were aware that there was issues with them and, at the time, I was like, "Yes, this is something that we'll have to follow up on and likely replace these units." It's not common and it's probably unsafe that we would actually take apart a mechanism. It doesn't happen in our industry that you would take apart things with complex springs and latches and mechanisms because there's potentially stored energy there which can cause injury in taking it apart and putting it back together could be quite complex. We don't have manufacturer's instructions on how to do something like that so taking all of the mechanisms apart is not something that we would do.”

[70] When he was cross examined in answer to a question from the Applicant’s counsel he said: 15

“So you weren't able to do a thorough examination of the actual mechanism itself?---I still believe that we did a thorough examination. We couldn't take all the components out, lay them out and look at each individual one, but I still think the investigational work that we did was thorough and probably more thorough that we would usually go to in a incident investigation, normal process.”

[71] The evidence does not warrant a finding that the machine should have been stripped down.

Harshness

[72] The Applicant submits that he did not undertake any of the actions which led to the incident or encouraged Mr Jessup to undertake the actions. He submits that his conduct is limited to failing to intervene when the operator removed the DNO tag and manipulated the line switch. As a result it is submitted that the termination is harsh. I have commented on the significance of acting and not acting previously in these reasons.

[73] It will be obvious from my reasons that I have found that there is a valid reason for termination in relation to the Applicants failure to intervene as he should have as OIC. This was a serious safety breach.

[74] The Applicant points out that to the knowledge of the Respondent no employee had been dismissed for witnessing a breach of the safety rules. I note that the applicant was not merely witnessing a safety breach. He was a party to it and had a significant role to play in ensuring no safety breaches occurred.

[75] The Applicant also submits that the Respondent failed to take account of the otherwise good record of the Applicant as evidenced by performance reviews. I take into account the matters relied on by the Applicant is his submissions. Particularly that he was 55, had worked for 12 years and had a positive employment history.

[76] I also note that Mr Hall was not dismissed for recording the meeting which had been referred to above. Clearly Mr Hall’s case is very different to this case. Nothing can be taken for the disparity of sanction. This case is a serious safety breach. Mr Hall’s was not, even though it was a serious matter.

[77] Further I accept the Respondents submission that enforcing health and safety obligations are important as a breach could lead to serious consequences. As I have said above the workplace is inherently dangerous. There is daily risk of injury by electrocution. Consequences of a breach could be significant. The potential consequences of the Applicants conduct were severe. It cannot be overlooked that the switching sheet is no mere formality. It sets out a strict process to follow to ensure the health and safety, not only of the Applicant, but others who may work in the area which has been isolated.

[78] All terminations are harsh. The question is whether the serious safety breach is outweighed by the harshness of the termination. Taking account of all of the evidence in regard to harshness and the Applicants submissions in that regards, giving the parties a fair go all round I do not accept that the termination was harsh in all the circumstances of the case.

Outcome

[79] I do not regard the termination of the Applicant’s employment as unfair. I find there was a valid reason for termination. I find that, notwithstanding some issues with the process, that overall the termination was not harsh, unjust or unreasonable.

[80] The Application is dismissed.

[81] I add that had the termination been unfair I would not have been likely to reinstate the Applicant. There are significant issues of trust and confidence relating to the manner in which that Applicant responded to his employer during the process and the failure to understand that he had done anything wrong. I did not consider these matters as part of my assessment of valid reason as, in light of my findings I was not required to do so. However there is merit to what the Respondent submits in regard to trust and confidence as it relates to reinstatement.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR719731>

1 Statement of Craig Mackey (R2) Court Book p 699.

 2   Transcript PN 751 to PN 763.

3 Power System Safety Rules clause 7 and 8; Distribution Network Operation Manual clause 7 referred to in Respondents submissions at Court Book p 397.

4 Transcript PN 554-555.

 5   Statement of Applicant (A1) Court Book p 31.

 6   Statement of David Egan (R3) Court Book p 580.

 7   Attachment to Statement of Applicant (A1) Court Book p 102.

8 Attachment to statement of Applicant (A1) Court Book p 103.

9 Statement of Lachlan Baird (A7) Court Book p 433.

10 Statement of Lachlan Baird (A7) Court Book p 482 – 483.

11 Statement of Lachlan Baird (A7) Court Book p 511.

12 Transcript PN 368.

13 See for example transcript PN 412 – 420.

 14   Transcript PN 1477.

 15   Transcript PN 1494.