[2016] FWC 7010

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Goran Petreski
v
Sydney Water Corporation T/A Sydney Water
(U2016/6930)

DEPUTY PRESIDENT DEAN

SYDNEY, 22 DECEMBER 2016

Application for relief from unfair dismissal – alleged safety breach –conduct not proved – no valid reason for dismissal.

[1] On 13 May 2016 Mr Goran Petreski (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Sydney Water Corporation T/A Sydney Water(the Respondent).

[2] The Applicant had been employed on a full time basis by the Respondent since February 2008 as a Civil Production Employee. His employment was terminated after an investigation found that he had breached a Safe Work Method Statement (SWMS21), and that his actions in doing so constituted serious and wilful misconduct and a breach of trust.

[3] The matter was the subject of conciliation on 14 June and 10 August 2016 and remained unresolved. The matter was then listed for arbitration in Sydney on 8 and 9 September 2016. Final written submissions were provided by the parties by 4 October 2016.

[4] At the hearing, Mr C Lowe and Mr J Mattson appeared, with permission, for the Applicant and the Respondent respectively.

[5] Evidence was given by:

a. The Applicant;

b. Mr Gregory Burke – Civil Maintenance Manager;

c. Mr Steven Coles – Field Supervisor;

d. Mr Geoffrey Fuller – Trainer and Assessor;

e. Mr Liam Connolly – Employee Relations Specialist;

f. Mr Loenardo Varela – Field Supervisor;

g. Mr Tony Cannard – Manager Civil Delivery (not required for cross examination);

h. Mr Peter Vickers – Production Employee Civil Maintenance;

i. Mr Paul Stevenson – Field Supervisor; and

j. Mr Brendan McNally – Acting Team Manger – Civil Delivery.

[6] Messrs Burke, Coles, Fuller, Connolly, and Varela gave evidence in response to orders that were issued at the request of the Applicant.

Factual background

[7] The majority of the factual background, set out below, was not contested.

a. On 25 February 2016 the Applicant and other employees of the Respondent were required to attend Bourke Street, Redfern (the site), after a main pipe was damaged by a contractor who was digging the up the footpath (the Incident).

b. The Applicant was scheduled to work with a colleague, Mr John Hamilton. Mr Hamilton was a level 5 employee and the Applicant a level 3 employee (ie two levels below Mr Hamilton).

c. Mr Hamilton was scheduled to be the team leader, however the Applicant’s supervisor, Mr Paul Stevenson, contacted the Applicant earlier in the week to tell him that he would be the team leader instead of Mr Hamilton. No reason was provided to the Applicant for this change.

d. On the day of the Incident, the Applicant arrived at the site at approximately 2pm. Mr Hamilton and another employee, Mr Vickers, were already at the site.

e. At this time, Mr Vickers was attempting to shut the water main off, as water was flowing freely from the broken main pipe. Mr Vickers left the site shortly thereafter, leaving the Applicant and Mr Hamilton to complete the job.

f. The Applicant was able to put a wooden cork in the main pipe to stem the flow of water, then set up a pump to pump the water out of the hole which had been caused by the digging undertaken by the contractors of the footpath.

g. Mr Hamilton left the site to return to the depot to get a ‘saddle’ which would be needed for the repairs.

h. Mr Hamilton returned with the incorrect sized saddle, and so he again left the site to obtain a different sized saddle.

i. When Mr Hamilton returned to the site with the wrong part for the second time, the Applicant decided to go to the depot and get the parts needed to undertake the necessary repairs.

j. Mr Stevenson attended the site while the Applicant was away. When Mr Stevenson arrived he took a photo of the site with his phone 1. He then called the Applicant and asked the Applicant to return with a clamp to fit a 25mm hole for a main tap. The Applicant advised that he was only a few minutes away with various parts, and should have a clamp that would fit.

k. At some point after the Applicant returned to the site, Mr Stevenson asked Mr Hamilton and the Applicant who had fitted a new elbow to the copper pipe. Mr Hamilton stated that he had fitted the new elbow, and had worn safety gloves whilst doing so.

l. Mr Stevenson remained at the site until the job was completed. No other safety concerns were raised with the Applicant until the conclusion of the job. Mr Stevenson did not stop the job at any stage to raise any safety concerns.

m. After the job was completed at approximately 5.30pm, Mr Stevenson asked the Applicant to return to the depot to fill out a statement about what had occurred regarding the replacement of the elbow. The Applicant told Mr Stevenson he was not on site when this happened, and did not want to return to the depot, however he subsequently did so.

n. Mr Stevenson told the Applicant and Mr Hamilton that they were being stood down pending an investigation and they needed to return the trucks to the depot.

o. As at the date of the Incident, Mr Hamilton had been deemed ‘electrically incompetent’. The Applicant was not made aware of this by the Respondent.

p. The following day, 26 February 2016, the Applicant was provided with a letter from Mr Brendan McNally (the Allegations Letter).

q. The Applicant attended a meeting on 3 March with Mr McNally and Mr Liam Connolly of the Respondent. The Applicant had his religious pastor as his support person during this meeting.

r. The Respondent interviewed Mr Hamilton on 15 March 2016. Mr Hamilton also provided the Respondent with a written statement.

s. A second meeting was held with the Applicant on 15 March 2016. He did not have a support person with him on this occasion.

t. On 17 March 2016 the Respondent interviewed Mr Stevenson.

u. A Disciplinary Investigation Report (the Discipline Report) dated 7 April 2016 was prepared by Mr Connolly and Mr McNally. It recommended termination of the Applicant.

v. On 8 April 2016 the Respondent held a third meeting with the Applicant who was supported by Mr Mick Woods of the Australian Services Union (ASU). The Applicant was given a letter that outlined findings of the Respondent regarding the allegation, which it indicated had been substantiated. The letter also outlined the proposed outcome, being the termination of the Applicant’s employment with notice (the Proposed Outcomes Letter). The Proposed Outcomes Letter invited the Applicant to put anything to the Respondent that should be considered before it made a final determination.

w. Mr Woods of the ASU responded on behalf of the Applicant by letter dated 18 April 2016 (the Response Letter).

x. On 19 April 2016, the ASU received an email from Mr Connolly asking a clarification question, which the Applicant declined to answer on the ground that he believed the Respondent had already made a decision to implement the proposed outcome of the investigation (ie the termination of his employment).

y. Mr McNally provided a copy of the Discipline Report and the Response Letter to Mr Greg Bourke, who made the decision to dismiss the Applicant on 20 April 2016.

z. On 26 April 2016 the Respondent held a short meeting with the Applicant who was accompanied by his partner. He was given a letter advising him that his employment was terminated on the basis that his actions constituted serious and wilful misconduct and a breach of trust (the Termination Letter). The termination was stated to be ‘effective immediately with payment of notice’.

[8] There is no dispute about the importance of safety, the requirement to follow safety processes, or the consequences of a failure to follow such processes.

Key issues for determination

[9] The Respondent’s case relies on a finding that, on the balance of probabilities, the Applicant 2:

a. undertook work by removing the old elbow, testing the size of ‘saddles’ and undertaking excavation activities without appropriate safety controls in place, as required by SWMS21; and

b. was ‘wilfully dishonest’ during the investigation.

[10] These matters go to whether the Respondent had a valid reason to dismiss the Applicant, and are disputed by the Applicant.

[11] The Applicant also disputes a number of additional matters, which he argues support a finding that the dismissal was unfair. These include:

a. The Applicant was only given a very broad outline of the alleged reasons for his dismissal;
b. The Applicant had undertaken the same work in the same manner on previous occasions with no action by the Respondent;
c. The Applicant was not notified of the reasons to terminate before the decision to terminate was made;
d. The Applicant was not given a proper opportunity to respond because he was not given proper particulars of the allegations, including what part(s) of SWMS21 he was alleged to have breached;
e. The Respondent did not follow its own Discipline Policy and Procedure in that it did not put the allegations clearly, one at a time, and allow the Applicant adequate time to respond, and did not provide the Applicant with a written record of proceedings (ie. interviews with the Applicant); and
f. The Respondent was inconsistent in its enforcement of its safety policies and did not take account of the Applicant’s length of service and exemplary employment record.

[12] Given the substantial agreement about a large part of the factual background, the evidence and submissions outlined below only deal with the issues I need to determine.

Requirements of SWMS21

[13] SWMS21 is a safe work method statement dealing with electrical safety for water main to water meter maintenance and repair 3. The general requirements, which are referred to as ‘Four Preliminary Steps’ are set out on the first page of the statement and apply to all ‘main to meter’ tasks.

[14] The preliminary steps include the inspection and testing of gloves, electrical tester (PVM) and bridging conductors, and the inspection of the worksite for risks. The controls in relation to inspection of the worksite include a visual inspection, conducting a risk assessment, digging to locate services as per the SWMS dealing with excavation, establishing the size of the water service, and checking for voltage in metallic water services using PVM.

[15] The SWMS21 then provides six ‘methods’ for undertaking work, with Method 3A being applicable in this case. This applies after the preliminary steps are undertaken. Method 3A specifically refers to conducting ‘pre-work’, as distinguished from ‘work’.

[16] Gloves are described as the ‘first level of control’ which must be worn for the entire job. The second level of control, being the establishment of the bridging conductor around the work area, is not required in Method 3A until after a number of other steps are conducted. Those steps include:

a. excavating to expose the water main and main tap,
b. cleaning the water main of excessive dirt,

c. installing and tightening the bridging saddle,

d. cleaning the attachment points and bare metal using an emery cloth, and

e. then installing the bridging conductor on the bridging saddle and customer water service.

The evidence on behalf of the Applicant

The work

[17] The Applicant’s evidence is that he initially believed that the job (the subject of the Incident) involved repairing the main pipe, in which case Safe Work Method Statement number 22 (SWMS22) would apply, rather than reattaching a pipe to a main pipe which is covered by SWMS21. He gave evidence that he believed it was a repair to the main pipe because it was unnecessary to re-attach an active pipe to the main at that point in time. He said ‘we don’t really need to connect this … we can always come back tomorrow; we can put the saddle on and then you can put a new main tap on the saddle at any time. You didn’t have to do it then and there’ 4.

[18] After some considerable cross-examination, it was again put to the Applicant that he was going to connect a main tap. His reply 5 was:

“No. I still maintain that I was never going to connect this – like I said to you before at the beginning of this conversation, I said to John we could just apply a clamp and we can cap it off, and if we need to come back tomorrow we can come back tomorrow, or someone can come back tomorrow, because I’m not convinced that this is actually going anywhere inside that building. So no, we don’t put main taps in the middle of driveways, which is what I tried to say at the beginning of the conversation.”

[19] The Applicant was asked about the time at which he realised that there was a copper pipe which may need re-attaching (and that SWMS21 would therefore apply). Consistent with what he told the Respondent during the investigation, he said that he did not wear a watch and simply did not recall exactly when the water level had receded to the point where this became obvious.

[20] The Applicant also gave evidence in cross-examination that when he left the site to go to the depot, there was no PVM installed and there were no bridging conductors around the work area. His explanation for this is that they were not ready to undertake any work at that time 6.

[21] His evidence confirmed that after he returned to site, Mr Stevenson was there. With gloves on, he then installed the PVM, installed the bridging conductors, then undertook the repair work 7, which involved a re-connection of a main tap. This was undertaken with Mr Stevenson supervising the work.

[22] The Applicant said that he did use the PVM to check for voltage, which is one of the requirements of the preliminary steps of SWMS21. This was not disputed by the Respondent.

[23] The Applicant distinguished undertaking ‘work’ and getting ready to perform work 8, or pre-work.

[24] He was cross-examined about the requirements of SWMS21. The basis for a number of the questions about the requirements of SWMS21 was based on ‘work’ being undertaken.

Testing the saddle

[25] The Applicant confirmed that he ‘dropped the saddle on the main’ to ascertain whether it was the correct size 9. It was put to the Applicant that he would have had to get into the work area to do this. The Applicant’s evidence was that it was necessary to access the work area before work began to do the ‘preliminary steps’ outlined in SWMS21, which did not require safety controls other than wearing electrical gloves. It was not suggested by the Respondent that the Applicant did not wear gloves as required.

[26] It was put to the Applicant that the saddle he tested was to be used to connect the main tap, but this was denied by the Applicant. His evidence was that this was used if the main pipe was broken, as was the case here 10.

[27] The Applicant was adamant that testing the size of the saddle in this context was not a safety breach. He likened it to excavation work which was necessary to expose the main pipe, and which was undertaken without two safety controls in place.

[28] In re-examination, the Applicant said that he had dropped saddles on pipes in the presence of supervisors before, while wearing gloves, and no-one had said that this was in breach of SWMS21 11.

Removal of old elbow

[29] The Applicant denied removing the old elbow, and was cross-examined about this.

[30] It was put to him that if the old elbow had been knocked off, then there would have been damage to the pipe. His answer to this proposition was ‘possibly’. He disagreed with the proposition that a new elbow would not have been able to be screwed back on if it had been knocked off. The Applicant had also flagged as a possibility during the investigation that it may have been the contractors (who had damaged the pipe with their digging) who may have removed the old elbow 12.

Excavation

[31] The evidence of the Applicant was that excavation could be done as part of the pre-work and he was not in breach of SWMS21 by undertaking some excavation of the site.

Investigation and requirement to provide statement

[32] In cross-examination the Applicant denied that he had entered into the computer system the list of materials used for the job. His evidence was that he was annoyed that he had been directed to return to the depot to write out a statement of events, and so he switched off his computer and left it for his supervisor to complete the administrative requirements. His evidence was that the only question he was asked (and subsequently asked to write a statement about), was in relation to the attachment of the new elbow 13. He explained that he was annoyed about the request to return to the depot (at approximately 6.30pm) because he was not on site when the elbow was attached by Mr Hamilton, and that he had a statutory declaration in his truck and could complete the statement on site, rather than having to return to the depot to do this14.

[33] The Applicant was cross-examined about what the Respondent asserted to be ‘inconsistencies’ in his responses during the investigation. These inconsistencies involved the time the site would have been clear of water. When asked about the time it would have taken for the water to be clear of the site, the Applicant disputed that the water was clear in 20-40 minutes 15. He did not accept the Respondent’s description of the site as sandy and sloping to the extent that the water could have drained this quickly.

[34] The Applicant maintained during the investigation and the hearing that he was unclear about how much water was in the hole at any particular point in time 16 and the time it took for the water to drain.

[35] He denied being dishonest during the investigation.

Other matters

[36] The Applicant stated that during the investigation process he sought clarification from the Respondent about which part(s) of SWMS21 he had breached but was not provided with a response 17.

[37] The Applicant agreed that he had attended training on electrical safety whilst employed with the Respondent.

[38] He confirmed that he had never had any safety or performance issues during his employment.

[39] He also gave evidence that he was unaware of the allegation of ‘wilful dishonesty’ until the Proposed Outcomes Letter.

[40] The Response Letter, sent by the ASU, outlined the background to the Incident, the facts as viewed by the Applicant, and a number of ‘personal considerations’ such as the Applicant’s personal focus on safety, his family circumstances, and his excellent performance record. In addition, the Response Letter raised concerns that the Applicant had not been informed of Mr Hamilton’s status as ‘not competent’, and further, that the Respondent had only conducted a disciplinary investigation rather than (or in addition to) an investigation by the Water Investigation ICAM Team. I take this to mean a form of root cause analysis investigation to determine the cause of the incident from a safety perspective. There is no evidence that any ICAM-style investigation was undertaken. While nothing turns on this in terms of my decision, it is a matter which in the circumstances should have warranted serious consideration by the Respondent, particularly where the Respondent considered that the potential outcome of the Incident was death or serious injury.

Mr Bourke

[41] Mr Bourke was called to give evidence for the Applicant. He confirmed he made the decision to dismiss the Applicant. He was asked why the Applicant was not informed that Mr Hamilton had been deemed incompetent. His evidence made it clear that there was no process by which other employees would be advised of a colleague being ‘not competent’ and said that the Respondent would rely on Mr Hamilton to only ‘assist’ in respect of the work required to be done.

[42] Mr Bourke was asked whether it was commonplace for a supervisor, upon becoming aware of an apparent safety breach, to allow a job to be completed rather than stopping the job. Mr Bourke’s answer was that it was a discretionary decision for the supervisor. However he indicated that he would have stopped the job if he were in the position of Mr Stevenson.

Mr Coles

[43] Mr Coles, a Field Supervisor and certificate IV assessor, was called to give evidence. He was the Applicant’s previous supervisor. He confirmed that he had never had any safety concerns about the Applicant, and there were no ‘on the job issues’. He gave evidence that he considered the Applicant to be an honest person 18.

[44] Mr Coles confirmed that if he had become aware of a potential safety breach, he would have stopped the job and dealt with the issue, before deciding whether to continue.

[45] Mr Coles was asked about the requirement for two levels of control (ie gloves and a bridging conductor). He said that to excavate around the main or if an employee was required to touch the water main, only gloves are required to be worn. He gave evidence that bridging apparatus was required when an employee had to put two pieces of pipework together 19.

[46] In cross-examination, Mr Coles said he would expect that controls were to be put in place as soon as possible after it was possible to do so. He also said that this was his expectation, rather than an expectation specifically stated by the Respondent 20.

Mr Fuller

[47] Mr Fuller, a trainer and assessor with the Respondent, was called to give evidence. He was shown the photo taken by Mr Stevenson of the site, and asked what Mr Stevenson should have done when he saw the site (as portrayed by the photo). Mr Fuller said that the field supervisor (ie. Mr Stevenson in this case) should have come up with a site specific safety plan 21.

Mr Connolly

[48] Mr Connolly, the Respondent’s Employee Relations Specialist who undertook the investigation with Mr McNally, was also called by the Applicant to give evidence.

[49] Mr Connolly was asked about the Respondent’s disciplinary procedure and policy. In response to a question about whether the procedure required the Respondent to provide a copy of any transcript or records of meetings to the Applicant, he stated that this was the case only if asked by the Applicant. He confirmed that the Applicant was not provided with any records of meetings or transcripts, and he did not explain the policy or procedure to the Applicant.

[50] Mr Connolly was asked about the allegation of wilful dishonesty, and whether it was raised with the Applicant prior to handing him the Proposed Outcomes Letter. Mr Connolly said that it was put to the Applicant that there appeared to be some inconsistencies in his evidence, which were identified as being the state of the site at various points in time 22.

[51] He gave evidence that he formed the opinion that the Applicant was wilfully dishonest because of his preference for Mr Hamilton’s version of events, and his view that there were inconsistencies in the Applicant’s own version of events.

[52] In cross-examination, Mr Connolly disagreed that the stressful environment the Applicant was in (being the investigation process) may have been the reason his recollection was not accurate. Mr Connolly confirmed that he had had no dealings with the Applicant prior to the investigation and was aware that he had an unblemished record. Mr Connolly confirmed that he did not put it directly to the Applicant that he thought he was lying, saying instead that ‘there was a tone of that in the second meeting’ 23.

[53] Mr Connolly was also asked why he preferred the version of events by Mr Hamilton given Mr Hamilton’s statement in response to the investigation that he was ‘suffering severe stress’ and ‘at that time I should not have been at work’. His response was that the Applicant’s evidence was inconsistent with himself 24.

[54] In cross-examination Mr Connolly also stated that he preferred Mr Hamilton’s version of events because Mr Hamilton’s version did ‘match the way the site would have drained’. He said he went to the site to check the slope and nature of the site, and did not feel that it could have been underwater after two hours 25.

Mr Varela

[55] Mr Varela, a Field Supervisor, was called to give evidence on behalf of the Applicant. Mr Varela was questioned about an incident involving an electrical safety breach that had taken place in Five Dock in March 2016. His evidence, as it relates to this matter, is that had he arrived at a site and found a potential non-compliance with SWMS21, he would have stopped the job and put in place a site specific safety plan.

[56] In cross-examination, Mr Varela was asked whether he would expect to see a connected plum guard and bridging conductors in place if he were at the site. His answer was yes, but he qualified this by saying ‘depending, I guess, what stage they’re at’ 26.

The evidence on behalf of the Respondent

[57] The Respondent called 3 witnesses, and a statement by Mr Tony Canard was admitted without the need for cross-examination.

Mr Vickers

[58] Mr Vickers, who is a production employee with the Respondent, gave evidence. Mr Vickers was on site on the day of the Incident, and confirmed that there was still water around the site when he left. He gave evidence that in his experience, it would have taken 20-40 minutes to pump the water out of the hole after the cork had been placed in the main pipe.

[59] In cross-examination, Mr Vickers said that he had not been interviewed prior to the Applicant’s dismissal, and he had made his statement for the purpose of these proceedings in July 2016.

Mr Stevenson

[60] Mr Stevenson, the Applicant’s supervisor, gave evidence concerning the importance of electrical safety, training of all production employees with respect to electrical safety, ‘warnings’ issued to employees generally of the consequences of not following safety procedures, and details around the Incident.

[61] Importantly, Mr Stevenson gave evidence that when he arrived at the site, he did not notice that a new elbow had been attached, despite confirming he looked at the site and took a photo of it 27. He gave evidence that there was no work being undertaken when he arrived at the site28.

[62] He was asked in cross-examination whether he said anything to the Applicant or Mr Hamilton about there being no plumb guard (ie. PVM) in place and no bridging conductors installed after the Applicant returned to site. His answer was that he had not. He later agreed that it was his job as a supervisor.

[63] He said that after the Applicant returned to the site, the Applicant then moved to implement safety controls 29. It was not until part way through this process that Mr Stevenson said he noticed the new elbow, at which time he asked Mr Hamilton and the Applicant who had put the elbow on, and Mr Hamilton confirmed that he had done so. Mr Stevenson said he then called Mr McNally, and subsequently asked Mr Hamilton and the Applicant to return to the depot after the job was completed.

[64] Mr Stevenson agreed that the Applicant had asked to provide a statement at the site, rather than returning to the depot.

[65] Mr Stevenson confirmed that it was Mr Hamilton’s responsibility to inform the Applicant that he had been deemed electrically incompetent. Mr Stevenson’s evidence was that the Applicant was not supervising Mr Hamilton 30. In answer to questions from the Commission, Mr Stevenson stated that he was supervising Mr Hamilton, and when he wasn’t on site it would be the team leader, which in this case was the Applicant. I asked who was supervising Mr Hamilton whilst electrically incompetent when Mr Stevenson was not on site, and his response was ‘possibly Goran’ (the Applicant).

[66] He denied that he should have stopped the job in the face of a serious safety breach, because he was on site and the job was finished in a safe manner.

Mr McNally

[67] Mr McNally, who undertook the investigation with Mr Connolly, gave evidence that he received a phone call from Mr Stevenson, to the effect that Mr Stevenson had arrived on site, there were no electrical controls in place, and a new elbow had been placed on the service. Mr Stevenson said he had taken some photos and would send them to Mr McNally. Mr McNally says he asked Mr Stevenson who was on site, and the response was ‘John Hamilton, Goran is on his way back to site’.

[68] Mr McNally’s evidence about the investigation is conveniently summarised in the Discipline Report, which was the basis for the decision to dismiss the Applicant.

[69] The Discipline Report identified two ‘facts supporting the allegation’ of a failure to follow SWMS21. The first was a photo taken by Mr Stevenson when he arrived on site, which showed an excavated worksite with main and service exposed, and no electrical controls in place. The second ‘fact’ related to Mr Hamilton and is not relevant here.

[70] The Discipline Report summarised the responses from the employees (being the Applicant and Mr Hamilton) which are not repeated here.

[71] The key considerations in the Discipline Report, as they relate to the matters in dispute are:

a. The Applicant had given differing accounts during the investigation process of the water level at different points in time;

b. Considering the slope of the land and the sandy nature of the ground and the length of time for pumping, Mr McNally believed that the water would have cleared before Mr Hamilton returned to site the first time, and therefore the Applicant was making false statements;

c. The purpose of these false statements was to disguise that the worksite was in a state that should have had electrical controls in place;

d. It was not possible for the old elbow to be forced off in the absence of damage to the thread on the service. The Applicant was on site from the time the water stopped flowing, he had consistently identified the service without an elbow attached and he did not recall seeing the old elbow and main tap. Mr McNally concluded that on the balance of probabilities it was likely that the Applicant removed the old elbow;

e. When Mr Stevenson arrived on site and took photos, he was okay with the absence of electrical controls up until he realised work had been carried out. This suggested that the expectation was that electrical controls are put in place after excavation, any time up to work being carried out;

f. Mr McNally believed that the work carried out without electrical controls in place included excavation (although this may be acceptable), removing the old elbow (most likely by the Applicant), placing the saddle across the main (by the Applicant), and attaching a new elbow (by Mr Hamilton);

g. On this basis he found the allegation substantiated.

[72] Under the heading of Mitigating Circumstances, the Discipline Report said:

a. It was a particularly hot day;

b. There were no time pressures for those at the worksite;

c. The Applicant had been declared competent in undertaking electrical work;

d. He had been interviewed twice and his evidence had changed between the two interviews;

e. The Applicant was considered to be ‘deliberately not truthful’ in his account of the events, based on his lack of clear recollection as to the time it took for the water to be cleared from the site;

f. On the balance of probabilities, the Applicant removed the old elbow from the service without proper controls in place;

g. The purpose of the Applicant’s untruthfulness was to hide work he had undertaken without controls in place; and

h. Mr McNally considered the Applicant’s actions constituted misconduct in failing to implement electrical controls, and his behaviour during the investigation was wilfully dishonest.

[73] Mr McNally’s witness statement at paragraph 57 states that the Applicant said he tapped the plumb guard on the service to check for electrical current but in his view he should have kept it on the service.

[74] At paragraph 58 of his statement, Mr McNally refers to the Applicant’s efforts to try to fit the saddle on the main pipe as ‘work’ which should not have been done without all controls in place – specifically, bridging cables installed around the work area.

[75] In cross-examination, Mr McNally confirmed that he was not aware Mr Hamilton had been deemed electrically incompetent as at the date of the Incident. He also confirmed that there was no procedure for advising the Applicant that Mr Hamilton had been deemed electrically incompetent.

[76] Mr McNally gave evidence that he was happy for the job to continue, after a serious safety breach, as long as the controls were put in place and the supervisor was on site 31.

[77] It was put to Mr McNally that there was a period of approximately 2.5 hours between when the contractors ripped up the footpath and hit the pipe, and when the crew began work. He was asked whether there was any other possibility as to how the old elbow may have been removed, other than by the Applicant. His answer was that based on Mr McNally’s experience, he could not see any other reason.

[78] Mr McNally was asked whether he attended the site and looked at the thread himself, or whether anyone else looked at it as part of the investigation. He said that this did not occur, as the Respondent relied on the statement of Mr Hamilton that he did not have any issues screwing on the new elbow 32.

[79] Mr McNally was cross-examined about the responses provided to him by the Applicant during the investigation. He confirmed that the Applicant had asked him for clarification as to exactly what was being alleged by the Respondent. Mr McNally’s evidence was not clear as to whether any clarification was provided prior to the Proposed Outcomes Letter.

[80] He also stated in cross-examination that the only reason for the Applicant’s dismissal was that he did not set up electrical controls 33.

[81] Mr McNally was asked questions about the minutes taken during his interview with Mr Hamilton. Part of the minutes say: ‘the main tap and elbow were sitting on the footpath, thought pulled off’. Mr McNally said he did not know what Mr Hamilton meant 34, despite the notes being Mr McNally’s minutes of the meeting. The minutes go on to say: ‘when screwed the elbow on, was pretty well stressed out’.

[82] In relation to the allegation of wilful dishonesty, Mr McNally confirmed that the first time this was specifically raised was in the Proposed Outcomes Letter 35. He was asked whether he had ever raised with the Applicant his view that the Applicant’s evidence was inconsistent. His response was: ‘I think in the second interview it was mentioned’. When taken to his notes of the second interview and asked where this was recorded, Mr McNally conceded that he ‘mustn’t have pointed it out’.

[83] In response to a question about the required controls while excavating, Mr McNally said that two levels of control were not required while excavating. The Termination Letter was raised with Mr McNally, as it identified ‘excavation’ as part of the ‘work’ that had been undertaken without electrical controls in place. Mr McNally sought to distinguish between excavation that may have been done after the controls ought to have been in place.

[84] Mr McNally was asked whether he had ever asked the Applicant if he had removed the old elbow. His response was: ‘The second interview, I’m sure we discussed it with him’ 36.

[85] Mr McNally was also asked to point out where in SWMS21 it states that testing the size of the saddle required two levels of control. Mr McNally’s evidence was that SWMS21 would not refer to ‘saddle’ specifically. He was asked: ‘So how are employees meant to know that they’re not to test a saddle without two levels of control in place?’ He answered:

“Because they should – it’s the main to meter. Once you’ve done the excavation to a point where controls can be set up, with the gloves worn you put your bridging cables in place and put those controls in place prior to carrying out any further work” 37.

Mr Canard

[86] Mr Canard’s evidence does not go to the matters I need to determine and so I do not need to deal with his evidence.

Consideration of the evidence and submissions, and findings

[87] The Respondent and Applicant both provided detailed and helpful submissions, which I have carefully considered.

[88] The Respondent argued that the Applicant was an argumentative and defensive witness. I disagree. He was certainly focussed on ensuring that he explained his position and the facts as he saw them, but I did not find him to be defensive or argumentative.

[89] There are a number of aspects of this case which are concerning.

Mr Hamilton’s ‘electrical incompetence’

[90] The Respondent had deemed Mr Hamilton ‘electrically incompetent’ some three months earlier. Mr Hamilton had been an employee for some 30 years. Mr Hamilton’s ‘incompetence’ was not communicated to the Applicant, and on the day of the incident the Applicant was not aware of this. Clearly there was an opportunity to inform the Applicant of this when Mr Stevenson called him to advise that he would be the team leader instead of Mr Hamilton. The evidence of Messrs McNally and Stevenson made it clear that there was no formal process for this type of information to be communicated to fellow employees or in this case to the Applicant who was supervising Mr Hamilton. The evidence of the Respondent is that they assumed Mr Hamilton should have told the Applicant.

[91] The Respondent contends in its submissions that this is irrelevant and a red herring because there is no evidence the Applicant would have acted differently had he known that Mr Hamilton was deemed incompetent.

[92] While this does not affect my finding as to whether there is a valid reason for the Applicant’s dismissal, I do not agree with the proposition by the Respondent that this is irrelevant because of a lack of evidence of what the Applicant may have done differently. I consider this to be a clear failing in the Respondent’s safety processes, and inconsistent with the Respondent’s stated position on the importance of safety in the workplace.

The finding that the Applicant was wilfully dishonest

[93] In this written statement Mr Hamilton said that at the time of the Incident, he was:

“suffering severe stress due to my daughter diagnosed with debilitating Post Natal Depression with her recent 3 week old newborn baby and at that time I should not have been at work, but I wanted to complete my shift before commencing my long service leave ...”

[94] Despite evidence of Mr Hamilton’s ‘severe stress’, and the fact that he was not interviewed by the Respondent until 19 days after the Incident and that he had been deemed electrically incompetent, the Respondent still stated in the Termination Letter that it preferred the evidence of Mr Hamilton over the Applicant regarding the time it took for the water level in the hole to recede.

[95] The finding by the Respondent of wilful dishonesty was also based on the opinion formed by Mr Connolly (Employee Relations Specialist) regarding the time he believed the water should have taken to be cleared from the site. In the absence of any evidence to establish Mr Connolly’s qualification or expertise to make a determination about such a matter, I do not consider his opinion persuasive.

[96] It was the statement of Mr Hamilton that formed the primary basis for the finding by the Respondent of ‘wilful dishonesty’ of the Applicant during the investigation. I find the reliance on Mr Hamilton’s statement in these circumstances difficult to accept.

[97] I accept the evidence of the Applicant that he did not recall with specificity the time it took for the water to drain from the site. There was no evidence of any reason in the normal course of his work that he would have needed to recall such information to the level of specificity the Respondent expected.

[98] In weighing up all of the evidence in this regard, I find that the Applicant was not wilfully dishonest during the investigation.

Removal of the old elbow

[99] The Applicant denied removing the old elbow and he was not seen by anyone removing the old elbow.

[100] The Respondent argued that ‘it was more likely than not’ that the Applicant removed the old elbow. This was based on a number of factors set out in their written submissions, including the evidence of Mr Hamilton that he was able to screw on the new elbow and that he saw the old elbow sitting on the footpath, that the Applicant had the time and opportunity to remove the old elbow, that it was unlikely it had been removed by the contractor or Mr Hamilton.

[101] The removal of the old elbow by the Applicant was certainly one explanation as to how this occurred, and it was the one that the Respondent decided that most likely had occurred. While it was what the Respondent considered to be the most likely answer, in my view this allegation has not been proved by the Respondent on the balance of probabilities.

Allegation of testing the size of the saddle in breach of SWMS21

[102] The Applicant agrees that he tested the saddle to determine the size on the main pipe. In my view, SWMS21 does not set out a process to determine the size of a pipe where this is not otherwise able to be ascertained.

[103] The evidence overall demonstrates a number of inconsistencies and a lack of clarity around the requirements of SWMS21, the difference between what is considered to be pre-work compared to work, and timing as to when controls must be put in place.

[104] The Respondent argued that by dropping a saddle on the main, the Applicant was undertaking work in the absence of two levels of electrical controls. The Respondent also argues that to accept the proposition that testing the saddle does not constitute work, it would mean accepting the proposition that he was permitted to undertake activity (other than implementing safety controls) in the very area that places him at risk of electrocution. The evidence before me, which has been summarised earlier, does not make this out. If this is what is intended by SWMS21, then it is by no means clear.

[105] I accept the evidence of the Applicant that he had ‘dropped’ saddles on pipes in the presence of supervisors on previous occasions without incident. I also find that his actions in doing so on the day of the Incident did not constitute a breach of SWMS21.

The work that was required to be undertaken, including excavation

[106] The Applicant’s evidence, which I accept, is that when he first arrived on site and was able to evaluate the work that needed to be done, he believed that he could repair the main and if necessary, at a later point in time, re-connect the pipe 38.

[107] The Applicant distinguished undertaking ‘work’ and getting ready to perform work (or pre-work) 39, and in my view this is consistent with SWMS21. Method 3A, which the Respondent argued applied to the work, specifically refers to conducting pre-work, which included exposing pipes and testing for electricity40. It also specifically allows excavation before a second level of control is required, which is consistent with the evidence of the Applicant and Messrs Coles and McNally outlined earlier.

[108] SWMS21 specifically contemplates that employees will undertake ‘pre-work’ which is carried out without two levels of control in place. This is consistent with the Applicant’s evidence and I accept his evidence in this regard. The preliminary steps in SWMS21 also contemplate establishing the size of the water service. There are no instructions as to how to do this set out within SWMS21. Given that sizing in this context is in millimetres, it is unreasonable in my view not to include a process by which sizing is able to be determined in a safe manner, and specifically by not having to drop a saddle on a pipe if the Respondent considered this to be an unsafe activity.

[109] The preliminary steps use the phrase ‘check for voltage’ using the PVM. ‘Checking’ for voltage in my view does not mean ‘continuously monitoring’ using the PVM. The evidence is clear that the Applicant did check for voltage using the PVM when he was able to do so, and before he undertook work.

Mr Stevenson’s evidence

[110] The evidence of Mr McNally and Mr Stevenson is inconsistent in an important respect. Mr McNally’s evidence makes it clear that Mr Stevenson called him before the Applicant returned to site. Mr Stevenson said it was sometime after the Applicant returned to site and work was underway before he noticed the new elbow and called Mr McNally.

[111] The photo taken by Mr Stevenson and relied upon as a ‘fact supporting the allegation’ in the Discipline Report shows a shiny new elbow. In my view it is not plausible that Mr Stevenson looked at the worksite, took a photo, and did not notice the new elbow immediately. I prefer Mr McNally’s version of events, that being he received the call from Mr Stevenson before the Applicant returned to site.

Inconsistency in possible response to a safety breach

[112] The evidence of a number of the Respondent’s supervisors and managers as to whether they would have ‘stopped the job’ in the face of a potential safety breach so serious as to subsequently warrant termination, was inconsistent. At least three of the Respondent’s employees said they would have stopped the job (Messrs Bourke, Coles and Varela), Mr Stevenson said he would not have stopped the job, and Mr McNally said he was OK for work to continue. It seems to me that if a clear process was in place, such inconsistency would not arise.

[113] Further, there was inconsistent evidence about what should have occurred other than stopping the job. Messrs Fuller and Varela both gave evidence that a site specific safety plan should have been developed, but this was not what other employees of the Respondent said.

Inconsistency as to when controls are to be put in place

[114] The evidence of the Respondent’s employees was not consistent regarding the timing for safety controls to be put in place after a site is cleared of water, and the pre-work processes are completed. For example, Mr McNally’s evidence was that controls should be put in place as soon as possible, Mr Coles said it was his expectation that controls would be put in place as soon as possible (as distinguished from an expectation of the Respondent), and Mr Varela said that it would depend. Importantly, the Discipline Report recognises that Mr Stevenson was comfortable with the absence of electrical controls up until the point in time where work was to be carried out.

[115] The Respondent submitted that from the evidence, it could be concluded that the Applicant had the time and opportunity to implement the safety controls in SWMS21 41. It probably was the case that the Applicant had the time and opportunity to implement safety controls before Mr Stevenson arrived at site, however given the contradictory evidence outlined in the paragraph above, I cannot find that this was a requirement of the Applicant that he failed to meet. As a result of this finding, a conclusion as to when the water was clear of the site or when the Applicant became aware that there was a copper service42, is somewhat irrelevant.

Other concerns about the investigation process

[116] I consider the request of the Applicant to complete a statement on site, rather than have to return to the depot, to be a reasonable request in the circumstances, particularly given the Applicant had a statutory declaration with him, and it was getting late. It was unfortunate that the Respondent did not accede to this request.

[117] There is no evidence that Mr McNally or Mr Burke attended the site themselves. Their reliance on some photos taken by Mr Stevenson to conclude that the site was sloping and sandy and therefore the water would have drained faster than the Applicant indicated, is in in my view a stretch.

[118] It is surprising that Mr Vickers was not interviewed as part of the investigation, given he was on site initially.

[119] Knowledge of the Respondent’s discipline policy and process ought to be well known to Mr Connolly as this is his area of expertise. Mr Connolly’s evidence was that the Respondent would provide copies of the minutes of any meetings if requested by an employee, however this is not what the disciplinary procedure states. Mr Connolly confirmed that the Applicant had not been given the minutes of any of the meetings with the Applicant, which it was required to do under its own policy.

[120] The evidence of Messrs Connolly and McNally as to whether they put to the Applicant their view that he was being dishonest during the meetings with the Applicant (and prior to the Proposed Outcomes Letter), which is set out above, was hardly compelling. I am not satisfied that this was made clear to the Applicant prior to the Proposed Outcomes Letter.

[121] I have considered the Respondent’s written closing submissions in regard to its obligation to put the allegation of dishonesty to the Applicant. It argues at paragraph 102 that there was ‘no basis for the proposition that the allegation of dishonesty had to be put to him in the investigative process. It must be remembered that, at common law, there is no duty to afford natural justice in employment and such a term is not implied in the employment contract’. Whether there is a basis for this proposition at common law or not is in my view irrelevant here. Clearly, the Respondent is bound by its own discipline policy and procedure, which require it to ‘put the allegations clearly, one at a time, and allow the employee adequate time to respond’. If it wants to defend an unfair dismissal claim under the Act, this is not an approach that should be adopted.

[122] I accept that the Applicant asked the Respondent during the investigation process to clarify which part(s) of SWMS21 it alleged he had breached. In my view, the Respondent did not provide any specificity about this. Given that SWMS21 is comprised of 9 pages in small font, it was a reasonable request and the Respondent should have done so.

Protection from Unfair Dismissal

[123] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal 43. There is no dispute and I am satisfied that the Applicant was protected from unfair dismissal.

[124] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the Act.

Was the dismissal unfair?

[125] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

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.

[126] There is no dispute that the Applicant was dismissed and that subsections (c) and (d) do not apply.

Was the dismissal harsh, unjust or unreasonable?

[127] The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

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.

[128] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 44as 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.”

[129] In considering the criteria for assessing fairness, a Full Bench in Metro Quarry Group Pty Ltd v John Ingham 45, said:

“[24] The criteria for assessing fairness, although not exhaustive, are clearly intended by the legislature to guide the decision as to the overall finding of fairness of the dismissal and are essential to the notion of ensuring that there is ‘a fair go all round’. This is particularly important in relation to safety issues because the employer has obligations to ensure the safety of its employees, and commitment and adherence to safety standards is an essential obligation of employees – especially in inherently dangerous workplaces. The notion of a fair go all round in relation to breaches of safety procedures needs to consider the employer’s obligations and the need to enforce safety standards to ensure safe work practices are applied generally at the workplace.”

[130] I am under a duty to consider each of these criteria in reaching my conclusion 46, which I now do.

Valid reason - s.387(a)

[131] The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. 47 The reasons should be ‘sound, defensible and well founded’48 or justifiable on an objective analysis of the relevant facts, and should not be ‘capricious, fanciful, spiteful or prejudiced’.49

[132] The question I must address here is whether there was a valid reason for the dismissal related to the Applicant’s conduct (including its effect on the safety and welfare of other employees).

[133] In cases concerning conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred 50. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct and therefore acted in the belief that the termination was for a valid reason. The Commission must make a finding as to whether the conduct occurred based on the evidence before it51.

[134] Further, the Commission does not ‘stand in the shoes’ of the employer but will need to be satisfied that the termination of the employee was for a valid reason 52.

[135] In this case, the Respondent dismissed the Applicant for serious misconduct, that misconduct being the failure of the Applicant to follow its safety procedures as set out in SWMS21, and his wilful dishonesty during the investigation.

[136] In my view, there is no doubt that a serious safety breach will provide a valid reason for dismissal. However the issue here is whether the Applicant did actually breach SWMS21.

[137] I have given careful consideration to all of the evidence presented in this matter. For the reasons set out earlier in my consideration of the evidence and submissions, I am not satisfied that the Applicant breached the safety requirements of SWMS21, nor am I satisfied that the allegation of wilful dishonesty has made out on the evidence before me.

[138] In my view it is incumbent on employers to ensure that their safety processes are clear, and easy to understand and follow. That is not the case here.

[139] Consequently, I find that there was no valid reason for the dismissal.

Notification of the valid reason - s.387(b)

[140] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 53 in explicit terms54 and in plain and clear terms.55 In Crozier v Palazzo Corporation Pty Ltd56 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 57

[141] While I am satisfied that the Applicant was notified of a reason for the dismissal, I have found above that the reason for dismissal was not a valid one.

Opportunity to respond - s.387(c)

[142] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 58

[143] The evidence in this case which has been dealt with above clearly demonstrates that there were flaws in the process followed by the Respondent. Overall, while I consider that the process undertaken by the Respondent was not ideal, the evidence is sufficient to conclude that procedural fairness was afforded to the Applicant.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[144] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present

[145] The evidence is clear and the Applicant does not dispute that he was provided with the opportunity to have a support person.

Warnings regarding unsatisfactory performance - s.387(e)

[146] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 59

[147] Given this is not a case in which the Applicant’s performance was unsatisfactory, this consideration is not relevant.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[148] I am satisfied that the size of the Respondent’s enterprise and its dedicated human resource expertise, did not impact on the procedures followed by the Respondent in effecting the dismissal.

Other relevant matters - s.387(h)

[149] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.

[150] I recognise the Applicant’s length of service and exemplary employment record, and I do not consider that there are additional matters I need to consider.

Conclusion

[151] Having considered each of the matters specified in s.387, I am satisfied that the dismissal of the Applicant was harsh, unjust and unreasonable. The Respondent’s decision to dismiss the Applicant was made on inferences which could not have reasonably been made based on the material before it. Accordingly, I find the Applicant’s dismissal was unfair.

[152] I reiterate that safety in the workplace is of paramount importance. There is no doubt that employers should take strong disciplinary action, including dismissal, where there are serious breaches of safety obligations by employees. However, disciplinary action will be difficult to defend where the employer’s policies are not clear and easy to understand. The differing understanding of safety requirements by the Respondent’s employees should be a matter of concern to the Respondent.

Remedy

[153] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:

390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).

(2) The Commission may make the order only if the person has made an application under section 394.
(3) The Commission must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

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

[154] I have already dealt with the issues at s.390(1)(a)–(b) above. I am satisfied the Applicant was protected from unfair dismissal pursuant to s.382 of the Act and the Applicant was dismissed unfairly. Accordingly, I am required to determine whether to order the reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate, an order for compensation if it is satisfied such an order is appropriate in all the circumstances.

[155] The application made by the Application indicated that reinstatement was the remedy sought. The opening submissions made on behalf of the Applicant in the hearing indicated that redeployment and backpay was sought 60.

[156] In light of my finding as to the unfairness of the Applicant’s dismissal and the lack of a clear position by the Applicant regarding remedy, I will separately issue directions to the parties to provide submissions regarding remedy. A further decision with regard to remedy will be issued once those submissions are considered.

DEPUTY PRESIDENT

Appearances:

C Lowe for the Applicant.

J Mattson for the Respondent.

Hearing details:

2016.

Sydney:

September 8, 9.

Final written submissions:

Applicant, 27 September 2016.

Respondent, 4 October 2016.

1 Witness statement of Paul McNally at page 57.

2 Respondent’s closing submissions at paragraph 2, dated 4 October 2016.

3 Exhibit A1 at page 28-36.

4 Transcript PN99-102.

5 Transcript PN564.

6 Transcript PN359-360.

7 Transcript PN364-368.

8 Transcript PN475-477.

9 Transcript PN538.

10 Transcript PN562.

11 Transcript PN789-793.

12 Transcript PN642-653.

13 Transcript PN665.

14 Transcript PN378.

15 Transcript PN497.

16 Transcript PN667.

17 Transcript PN794-798.

18 Transcript PN944-949.

19 Transcript PN961-963.

20 Transcript PN1023-1026.

21 Transcript PN1080-1081.

22 Transcript PN1110-1112.

23 Transcript PN1121.

24 Transcript PN1128.

25 Transcript PN1161.

26 Transcript PN1282.

27 Transcript PN1402.

28 Transcript PN1549.

29 Transcript PN1587.

30 Transcript PN1467-1475.

31 Transcript PN1659.

32 Transcript PN1663-1665.

33 Transcript PN1689.

34 Transcript PN1694.

35 Transcript PN1722-1723.

36 Transcript PN1796.

37 Transcript PN1804.

38 Transcript PN99-102.

39 Transcript PN475-477.

40 Exhibit A1 page 28.

41 Respondent’s closing submissions at para59.

42 Ibid at para 58 and 60.

43 Section 382 of the Act.

44 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

45 [2016] FWCFB 47.

46 Sayer v Melsteel[2011] FWAFB 7498.

47 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

48 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

49 Ibid.

50 Edwards v Giudice (1999) 94 FCR 561.

51 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

52 Miller v University of New South Wales (2003) 132 FCR 147

53 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

54 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

55 Previsic v Australian Quarantine Inspection Services Print Q3730.

56 (2000) 98 IR 137.

57 Ibid at 151.

58 RMIT v Asher (2010) 194 IR 1, 14-15.

59 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

60 Transcript PN20.

Printed by authority of the Commonwealth Government Printer

Goran Petreski v Sydney Water Corporation T/A Sydney Water

[2016] FWC 7010

22 DECEMBER 2016

DECISION