Justin McCabe v UGL Engineering Pty Ltd
[2025] FWC 1478
•29 MAY 2025
| [2025] FWC 1478 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Justin McCabe
v
UGL Engineering Pty Ltd
(U2024/14761)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 29 MAY 2025 |
Application for relief from unfair dismissal – electrician shut down generators on power project – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed
Introduction
Mr Justin McCabe was employed by UGL Engineering Pty Ltd as an Electrician grade 6 to work on the Hunter Power Project. Mr McCabe was also an elected Health and Safety Representative for the work group comprised of all employees in the electrical and instrumentation team on day shift at the HPP. On 27 June 2024, Mr McCabe deliberately shut down three generators at the HPP. As a result, he was summarily dismissed. Mr McCabe contends that his dismissal was harsh, unjust and unreasonable. UGL denies that Mr McCabe’s dismissal was unfair.
I heard Mr McCabe’s unfair dismissal case against UGL on 18 and 19 March 2025 and 19 May 2025. Mr McCabe gave evidence in support of his case, as did Mr Ash Bamford, Organiser of the Electrical, Energy and Services Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU). UGL adduced evidence from Mr Lindsay Olsson, HR/IR Manager, Mr Daniel Ellul, Project Director, Mr David Hill, Electrical & Instrumentation Superintendent, and Mr Niall Stenson, Electrical and Instrumentation Project Manager.
Initial matters to be considered
Section 396 of the Fair Work Act2009 (Cth) sets out four matters which I am required to decide before I consider the merits of an unfair dismissal application.
There is no dispute between the parties and I am satisfied on the evidence that:
(a)Mr McCabe’s application for unfair dismissal was made within the period required by s 394(2) of the Act;
(b)Mr McCabe was a person protected from unfair dismissal;
(c)the Small Business Fair Dismissal Code did not apply to Mr McCabe’s dismissal; and
(d)Mr McCabe’s dismissal was not a genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr McCabe’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.
Valid reason (s 387(a))
General principles
It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.[1] In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced.”[3]
The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[4] The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).[5]
In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.[6] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[7]
The employer bears the evidentiary onus of proving that the conduct on which it relies took place.[8] In cases such as the present where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.[9]
In Patrick Stevedores Holdings Pty Ltd v CFMMEU,[10] Justice Lee made the following useful observations about the Briginshaw standard and its impact on fact finding and the state of satisfaction required [references omitted]:
“Fact Finding and the State of Satisfaction Required
14.It is trite that both Patricks and Qube are required to prove their case on this liability hearing to the civil standard having regard to the degree of satisfaction required by s 140 of the EA. This section requires the court, in a civil proceeding, to find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. In deciding, in a civil case, whether it is satisfied that the case has been proved, the court is to take into account: (a) the nature of the cause of action or defence; (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. Although the standard of proof remains the balance of probabilities, the degree of satisfaction varies according to the seriousness of the allegations made and the gravity of the consequences (if the allegations are found to be correct): see EA s 140.
15.Importantly, the factual allegations made by both Patricks and Qube are not only foundations for the nature of the relief dealt with at this liability hearing (that is, declarations of contraventions of the FW Act), but are also the foundations for the deferred relief, that is, the imposition of pecuniary penalties.
16.It is well-established that s 140 reflects the common law as explained seminally by Dixon J in Briginshaw v Briginshaw. As the Full Court noted in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission:
The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.
Even though he spoke of the common law position, Dixon J’s classic discussion in Briginshaw...at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the [EA] now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact. But he recognised that (Briginshaw 60 CLR at 361-262):
‘No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences...
Dixon J also pointed out that the standard of persuasion, whether one is applying the relevant standard of proof on the balance of probabilities or beyond reasonable doubt, is always whether the affirmative of the allegation has been made out to the reasonable satisfaction of the tribunal. He said that the nature of the issue necessarily affected the process by which reasonable satisfaction was attained. And, so, he concluded that in a civil proceeding, when a question arose whether a crime had been committed, the standard of persuasion was the same as upon other civil issues. But he added, weight must be given to the presumption of innocence and exactness of proof must be expected (Briginshaw 60 CLR at 362-363).
17.It is also clear that so-called “Briginshaw principles” apply to civil penalty proceedings (which is a particular example of the application of s 140(1) of the EA)…”
It follows that for UGL to succeed in relation to its allegations of misconduct against Mr McCabe I am required to reach a state of satisfaction or an actual persuasion that UGL has proved its allegations of misconduct, while taking into account the seriousness of the allegations and the gravity of the consequences that could follow if the allegations were to be accepted.[11]
Alleged valid reason
UGL contends that it had a valid reason to dismiss Mr McCabe because:
(a)despite Mr McCabe asserting that there was a breach of section 163 of the Work Health and Safety Regulation 2017 (NSW) (Alleged Safety Breach) and issuing a Provisional Improvement Notice1408 dated 27 June 2024, there was no objectively reasonable basis for Mr McCabe to believe that the Alleged Safety Breach gave rise to an immediate risk to health and safety;
(b)in the circumstances of subparagraph (a), Mr McCabe:
(i)deliberately and knowingly shut down the generators powering the main compound when he was not approved or directed to do so; and
(ii)refused to follow lawful and reasonable directions given by Mr Stenson, not to shut down the generators;
(c)this was a dangerous act that could have led to serious injury to Mr McCabe or other employees, or members of the public or damage to property and assets;
(d)these actions constituted a serious breach of Mr McCabe’s contract of employment dated 8 June 2023 and UGL’s Workplace Behaviour Policy;
(e)a thorough and fair investigation and disciplinary process was undertaken by UGL; and
(f)Mr McCabe has shown no remorse or acceptance of responsibility for his actions.
Relevant facts
The HPP is a large and important project. It involves the construction of two gas turbines at Loxford, in the Hunter Valley of New South Wales. Snowy Hydro Limited owns the HPP. It has engaged UGL as the principal contractor to construct the two gas turbines and associated infrastructure.
The HPP commenced in early 2022.
In mid-2024, there were around 850 workers engaged to work on the HPP. About 500 of those workers were employed by UGL.
Approximately 50 generators provide power on the HPP. Three of those generators are synced together to provide power to UGL’s site office, stores, facilities, first aid room, toilets, and nurse call system.
At the time of the incident which led to Mr McCabe’s dismissal, he was covered by the UGL NSW Enterprise Agreement 2020.
In the period between June 2023 and July 2024, a significant number of safety issues were raised on the HPP, and over 40 improvement notices were issued by SafeWork to UGL. In his capacity as an Organiser of the ETU, Mr Bamford has been involved in a number of those safety issues.
On 27 February 2024, SafeWork issued an improvement notice (7-470240) to UGL. It relevantly stated:[12]
“… Workers and others are exposed to a risk of health and safety from an electric shock as UGL Engineering Pty Ltd has failed to ensure that ongoing earth continuity testing has been conducted on the sync board that is fed from Generator 1, 2, 3 in compliance with AS/NZS 3012.
…1. You must ensure that earth continuity testing has been completed in accordance with AS/NZS 3012, specifically, Section 3.6, on all electrical construction wiring and plant.
2. You must ensure, so far as is reasonably practicable, to consult with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by complying with Direction 1.
…Your attention is drawn to clause 163 of the WHS Regulation 2017 and Section 46, 47 of the WHS Act 2011. In complying with the direction refer to: SafeWork NSW Code of Practice ‘Managing electrical risks at the workplace’, and AS/NZS 3012 – Construction and demolition sites.
…This contravention must be remedied before: 26/03/2024…”
Mr McCabe gave evidence that SafeWork cleared the improvement notice issued to UGL on 27 February 2024 (7-470240).[13] Mr Bamford gave evidence that this improvement notice was “closed out” by SafeWork.[14] Mr Hill gave evidence that this improvement notice was “closed out” within a couple of weeks of being issued and UGL provided both SafeWork and the ETU (Mr Bamford) with a large bundle of documents recording the test results from the tests conducted in compliance with the improvement notice.[15] Accordingly, I am satisfied that, during March 2024, UGL did what was necessary to comply with improvement notice 7-470240.
On 18 June 2024, Mr Bamford attended the HPP. He informed UGL that he would be seeking “earth testing results next time” he attended the HPP.[16] Mr Bamford was concerned that UGL “may not have done the earth testing”.[17]
On 27 June 2024, Mr Bamford exercised a right of entry to HPP pursuant to s 117 of the Act. Mr Bamford was signed in to the site at 6:47am. Mr Bamford asked Mr Olsson for Mr McCabe and Mr John Ramsay, another HSR, to attend a safety walk with him around the HPP. Mr Ramsay could not attend because he was in training. Mr McCabe had slept through his alarm and was running late. Mr McCabe joined Mr Bamford on the safety walk not long after 7:15am.
While Mr Bamford and Mr McCabe were at the main distribution board for the stores area on the HPP (known as DB1), Mr Bamford made a request to Mr Brad Willis, UGL Electrical Supervisor, for earth testing results, emergency lighting discharge test results and installation test results for works that complied with the requirements of Australian Standard 3012 Section 3 and AS3000 Section 8.
After inspecting other areas of the HPP, Mr Bamford and Mr McCabe returned to the main compound area to await the testing documentation requested by Mr Bamford. At about this time, Mr Bamford asked Mr Willis for copies of the SafeWork improvement notices issued in February 2024 relating to the same issues and the documentation issued by UGL to have those notices lifted.
At about 9am on 27 June 2024, Mr Willis provided Mr Bamford with a copy of an improvement notice (7-470240) issued by SafeWork in February 2024, some LV cable termination checklist sheets, and a number of general inspection forms.
Mr Bamford asked Mr Willis whether this was all the paperwork issued and all the testing completed because he had noticed a number of things missing such as earth continuity test results for the distribution switchboards and construction wiring. Mr Bamford said that there appeared to be no test results from DB1 in the stores area to the main earth stake and that this was a considerable distance that would likely be too high or beyond the allowable limit in the standards for electrical safety. Mr Willis responded by saying that he had provided what he was handed, he thought that was it but he would go and reconfirm.
Between 9am and 9:30am, Mr Willis provided Mr Bamford with documents recording test results for testing conducted on 26 June 2024 on various parts of the HPP. These test results did not relate to any tests concerning the connection from the main electrode down to the Main Earth Neutral point. The test results showed the connection from the outlet to the distribution board but did not show the continuity of the earth from the distribution board back to the generator.
At around 9:30am, Mr Bamford made his way around to the crib area where the electrical crews were having their morning break. Mr Bamford asked whether anyone was aware of any earth continuity testing being done between the main earth stake and DB1 in the stores area or the compound switchboards. None of the electrical workers to whom Mr Bamford spoke could recall this testing having been done.
At 10:10am on 27 June 2024, Mr McCabe issued the first of three PINs to UGL. The first PIN was issued to “Mr Tegan Johnstone”. It included the following relevant information:
“DETAILS OF CONTRAVENTION
…you are contravening a provision … of the… Work Health and Safety Regulation 2017, regulation 147 & 163.
BRIEF DESCRIPTION OF HOW THE PROVISION IS BEING OR HAS BEEN CONTRAVED
PCBU has failed to ensure that mandatory earthing testing has been completed as per AS 3012 Section 3 and AS 3000 Section 8 requirements. Imminent risk to health and safety.
DATE PIN ISSUED DATE COMPLIANCE WITH PIN REQUIRED
27.06.2024 05.07.2024”
When Mr McCabe provided this PIN to Ms Johnstone, she said that it was addressed to “Mr Johnstone” and made a light-hearted joke about this. Mr McCabe apologised and indicated that his original intention was to issue the PIN to one of her male colleagues. Mr McCabe then wrote out another PIN, addressed to Ms Johnstone, at 10:35am, but was informed by Mr Olsson that Ms Johnstone was not available because she was in a meeting. The second PIN written by Mr McCabe and addressed to Ms Johnstone included the following relevant information:
“DETAILS OF CONTRAVENTION
…you are contravening a provision … of the… Work Health and Safety Regulation 2017, regulation 163.
BRIEF DESCRIPTION OF HOW THE PROVISION IS BEING OR HAS BEEN CONTRAVED
PCBU has failed to ensure that mandatory testing of main earth continuity for main compound and stores installation has occurred prior to energisation as outlined in AS 3012 Section 3 and AS 3000 Section 8.
DATE PIN ISSUED DATE COMPLIANCE WITH PIN REQUIRED
27.06.2024 05.07.2024”
At 10:50am on 27 June 2024, Mr McCabe issued his third PIN. It was issued to Mr Stenson. Mr McCabe told Mr Stenson that the PIN was to supersede and nullify the originally submitted PINs. The PIN issued to Mr Stenson included the following relevant information:
“DETAILS OF CONTRAVENTION
…you are contravening a provision … of the… Work Health and Safety Regulation 2017, regulation 163.
BRIEF DESCRIPTION OF HOW THE PROVISION IS BEING OR HAS BEEN CONTRAVED
PCBU has failed to ensure that mandatory testing of main earth continuity for main compound and stores installation prior to energisation as outlined in AS 3012 Section 3 and AS 3000 Section 8.
DATE PIN ISSUED DATE COMPLIANCE WITH PIN REQUIRED
27.06.2024 05.07.2024”
Mr Bamford then said to Mr Stenson that, based on the information or lack thereof that UGL had produced to establish that the installation was installed safely and to the appropriate standard, the installation needed to be isolated so that the appropriate testing could occur. Mr McCabe said, “Like we have done with everything else, we turn it off, do the test and away you go.” Mr Bamford then said that this should have all occurred already and the results should be readily available. Mr Bamford considered that he had been requesting these results for over a week and UGL knew that he would be asking for them. Mr Bamford said, “Whatever you need to do to shut down computers and save documents it is probably a good time to start.” Mr Stenson responded by saying that the improvement notice gave the company 8 days to comply with it. Mr Bamford responded by saying, “The risk is still imminent. Just because your house is on fire doesn’t mean you let it burn for 8 days before you do anything about it. I have been asking you all morning for the documentation and evidence you’ve done the tests. I’m willing to review anything you can present and be proven wrong. You’ve not provided me or SafeWork anything to demonstrate to the contrary.” Mr Stenson said,
“The company believes the installation to be safe.”
Mr Hill says that during this discussion Mr McCabe and Mr Bamford were threatening to turn off the generators, to which Mr Hill said, “Please don’t turn the generators off. Please don’t do it because I think you’re doing it for the wrong reasons”.[18] Mr Hill also says that Mr Stenson said words of similar effect to Mr McCabe.[19]
Mr Stenson gave the following evidence about this discussion:[20]
“… I think Mr Bamford suggested that they were going to turn off the generators because they hadn’t got testing. I suggested that wasn’t a good idea. I asked Justin not to turn off the generator…”
Mr Stenson also gave evidence that Mr Hill:[21]
“…asked them not to turn off the generator. He questioned whether he was doing things for the right reasons or his motives around why he was turning them off. Yeah, it was pretty much along the same lines as what – as what I had said to him as well.”
Mr Olsson was not present during this discussion,[22] but he gave evidence that he had a number of discussions with the electrical team throughout the day about what was taking place.[23]
Mr McCabe and Mr Bamford gave evidence denying that Mr Hill or Mr Stenson asked or told Mr McCabe not to turn the generators off.[24] They say that Mr Stenson said to Mr McCabe, “Be careful what you do here.”[25]
Mr McCabe says that in response to his requests for production of the test results, Mr Stenson kept saying that he didn’t have to provide them and was not going to provide them. Mr Stenson denies this account and says that he told Mr McCabe and Mr Bamford that the Certificates of Compliance for Electrical Work were available and would be provided.[26] Mr McCabe says that Mr Stenson did not mention anything about the CCEWs until after the generators were shut down.[27] Mr Hill gave oral evidence that the CCEWs were raised with Mr McCabe before the generators were shut down, albeit Mr Hill gave an explanation, which I accept, that in his earlier oral evidence he understood the questions to relate to physical copies of the CCEWs.[28] Mr Hill also gave evidence that Mr Stenson told Mr Bamford that they had certificates of the compound when it was first installed by Coates and although they did not have the actual test results, the contractor (Coates) had certified that they had done the tests. Mr Hill further says that Mr Stenson offered to provide the CCEWs to Mr Bamford, to which Mr Bamford said that the CCEWs were not what they were after.[29] Mr Bamford did not deny this evidence given by Mr Hill,[30] nor did he deny Mr Stenson’s evidence that he told Mr McCabe and Mr Bamford that UGL were getting the CCEWs.[31] Instead, Mr Bamford said that he and Mr McCabe were willing to review and consider any additional testing documentation that could be provided, they waited a number of hours for UGL to locate and produce such documentation and they did not do so, and it was only after the generators were shut down that UGL produced the CCEWs.[32]
Mr Hill gave evidence that he went back to the office to print out the CCEWs and while he was in the middle of printing them, the power went out because Mr McCabe had switched the generators off.[33] Mr Stenson gave evidence to the same effect.[34] Mr Hill then waited until the power was reinstated and proceeded to print the CCEWs.[35] Copies of the printed CCEWs were given to Mr McCabe and Mr Bamford in the meeting after power had been restored to the HPP.[36]
I prefer the evidence of Mr Stenson and Mr Hill to the effect that Mr Stenson said, before the generators were shut down, that they had the CCEWs and would get them, over Mr McCabe’s denial of this evidence. First, the evidence given by Mr Stenson and Mr Hill was consistent on this issue. Secondly, unlike Mr McCabe, Mr Bamford did not deny that Mr Stenson made these comments. Thirdly, one of the CCEWs was directly responsive to the third and final PIN issued by Mr McCabe at 10:50am. This increases the likelihood that Mr Stenson made reference to the CCEWs when he says he did. Fourthly, I accept Mr Hill’s evidence that he was attempting to print-out the CCEWs when the power went out as a result of Mr McCabe shutting down the generators. It would be an unusual coincidence for Mr Hill to be printing the CCEWs at that time if Mr Stenson had not just made mention of them and the fact that they would be obtained in his discussions with Mr McCabe and Mr Bamford.
Mr McCabe and Mr Bamford then walked to where the main generators were located. Mr McCabe began writing out of service tags on the water filled barricades in the immediate vicinity. The following people were in this area at the time: Mick Peters, UGL Civil Superintendent, Mr Olsson, Rosalie from AiGroup, Dave Hill, CoMade Superintendent, and others. Mr McCabe stated that the electrical installation, based on all available information, fails to meet the minimum requirements for energisation and therefore poses an imminent threat to anyone in and around where this electrical installation is energised [emphasis added].[37] The statement by Mr McCabe that the installation “fails to meet the minimum requirements for energisation” is consistent with the third and final PIN issued by Mr McCabe, which referred to a failure to ensure “mandatory testing of main earth continuity for main compound and stores installation prior to energisation” [emphasis added].[38]
The discussion continued in words to the following effect:[39]
Mr Bamford said:
“If no test results can be produced then the installation is deemed to be non-compliant, unsafe, and posing an imminent risk to health and safety for anyone utilising the area that this installation is powering.”
Mr McCabe said:
“Have you informed the workforce this will need to be shut down?”
Mr Olsson said:
“No, I haven’t because you’re not shutting it down.”[40]
Mr McCabe said:
“Yes I am.”
Mr Bamford said:
“If any computers needed to be isolated or made safe now is the time to do so.”
Mr Olsson said:
“Be mindful of what will follow if you do this.”
Mr Bamford said:
“What do you mean? What electrical qualifications do you hold to be making an assessment on electrical safety? He is a licensed electrician and a fully trained electrical HSR. He has an obligation not only as an electrician licence holder but also as an electrical HSR to not leave unsafe electrical installations in service.”
Mr Olsson then walked off.
Before walking off, Mr Olsson says that he asked Mr McCabe if he understood the consequences if he chose to shut down the generators. Further, Mr Olsson says that he said to Mr McCabe, “You have been given a reasonable instruction not to shut down the generators” and “Do you understand that there’s no imminent risk to the health and safety of any employee and do you understand that if you shut down that generator what the consequences will be?” Mr Olsson also says that he asked Mr Bamford whether he was giving Mr McCabe instructions to shut down the generators, to which Mr Bamford said, “No, I’m not Lindsay. I’m not giving instructions at all. I’m just letting him know what his safety obligations are and what the requirements are under the divisions of the Act.” Mr Olsson claims that he continued to ask Mr McCabe not to turn off the generators.[41] Mr McCabe and Mr Bamford do not agree with Mr Olsson’s account of this discussion.[42]
At about this time, after he had issued the three PINs, Mr McCabe says that he noticed that there was some galvanising paint on the main earth electrode but not as much galvanising paint as is shown on the photograph which is exhibit R2.[43] This concerned Mr McCabe and contributed to his suspicion that there was no MEN connection.
Prior to the generators being isolated, both Mr McCabe and Mr Bamford identified that
generator 2 was the generator that was running. Mr Bamford said to Mr McCabe that based on his knowledge of the installation and given no access to switchboards was being provided, the only option available was upstream, meaning that the generators were the isolation point. Mr Bamford said that the changeover switch was automatic so all three generators would need to be isolated or subsequent generators would start up automatically. Mr Bamford said that, given that generator 2 was running, both generators 1 and 3 would need to be isolated first before generator 2.
At about 11:15am, Mr McCabe isolated generator 1, paused generator 2, isolated generator 3, and then returned and isolated generator 2. At that time, there were about 500 employees and contractors working on the HPP.[44]
Various members of UGL management then came out of their offices including Mr Steven Banks (Senior Manager), Mr Sean Ridderford (Construction Manager), Mr Stenson and Mr Jason Ell (CoMade). Mr Ridderford said, “I want him in my office immediately.” Mr Bamford also says that he heard Mr Riddiford say either “he is done” or “he is gone”. Mr Bamford then walked around to where the managers were, and said words to the following effect:
“Hang on, you have had every opportunity to provide evidence that this has been done. You haven’t, because it hasn’t been done. It is unsafe and the HSR has made a call as a licenced electrician based on that information.”
Mr Riddiford then asked Mr McCabe whether he was acting under the direction of the union. Mr McCabe denied that he was doing so and said he was performing the work as a licenced electrician and an electrical HSR. After a further short discussion, Mr McCabe continued to install the out of service tags.
The generators were turned back on gradually, commencing about 20-30 minutes after they were turned off by Mr McCabe.[45]
At around 12:15pm, Mr McCabe and Mr Bamford entered a meeting room with various members of UGL management. There is an issue as to whether the lights came on at the commencement of this meeting or at some time during the meeting. The outcome of that dispute is not material to the issues I need to determine in this case. During this meeting, Mr Bamford was handed five CCEWs by Mr Riddiford. Mr Bamford read the CCEWs and said, “There is no continuity value for the earthing system as required by the standards.” Mr Riddiford responded by saying, “We have had a competent person sign these CCEWs and we have met our obligations.” There was then a discussion about the relevant requirements and the sufficiency of the results. Mr Bamford then said to Mr Riddiford, “Who will accept liability for turning this back on and not having completed the minimum mandatory tests? Who is going to stand up in front of the coroner and accept liability if someone gets killed?” Mr Riddiford said, “I am.” Mr Bamford then said, “Righto note that down – Sean is accepting liability.” Mr McCabe and Mr Bamford left the meeting room shortly after that.
Consideration of valid reason
Mr McCabe eventually accepted in his oral evidence that the CCEWs provided to him and Mr Bamford after the generators were shut down on 27 June 2024 satisfied the third and final PIN issued by him at 10:50am on 27 June 2024. Even though the relevant CCEW stated that the licensed electrician who had completed the pre-energisation testing on 21 September 2023 had carried out the relevant tests and the installation had passed the requirement for ‘earthing system integrity’, Mr McCabe repeatedly made the point that he had not seen the underlying results of the tests which the electrician carried out before completing the CCEW. It became apparent from Mr McCabe’s evidence that he was reluctant to accept any test results carried out by other licensed electricians. Mr McCabe referred to the test results given to him and Mr Bamford on 27 June 2024 in relation to an area of the HPP known as ‘tools store DB1’. When Mr Bamford was originally questioned about these test results in the investigation undertaken prior to his dismissal, he told the investigator that the test results made sense but they were not the ones he was looking for.[46] Then, in Mr McCabe’s first witness statement, he said the test sheets caused him to have a number of concerns, including particularly in relation to the 0.1 ohm result.[47] But it was established at the hearing that Mr McCabe had the pages of the test results mixed up in his first witness statement. Then, in his witness statement in reply to Mr Stenson’s oral evidence, Mr McCabe stated that he was not concerned about the 0.1 ohm result, but his “main concern was that the results showed an insulation resistance between the neutral and earth of greater than 500MΩ, because this suggested in the circumstances that there was no main earth to neutral connection”.[48] When he was questioned about this at the hearing on 19 May 2025, Mr McCabe changed his evidence in relation to his concern regarding the insulation resistance between the neutral and earth of greater than 500MΩ and said that this would be a concern if the testing was not undertaken properly with the cables disconnected. Mr McCabe accepted that the correct method of testing involved the cables being disconnected, but said he had seen other electricians do the test without disconnecting the cables. Mr McCabe was not aware of whether the cables had been disconnected when the testing was done. The end result is that Mr McCabe was speculating that the testing may not have been done correctly, and if it had not been done correctly, the results would not have been valid.
Much was made in Mr McCabe’s final submissions about what he contended was a failure by UGL to have the top of the main earth stake covered with galvanised paint. It was contended in final submissions that this gave Mr McCabe a right under clause 9.7.1 of the Enterprise Agreement and the relevant AS to isolate the generators. Mr McCabe gave the following evidence in his first witness statement in relation to this issue:
“30. Despite me issuing the PIN, I was not shown any results. I kept asking for them. At 10:50 am, I issued another PIN in the same terms. This time, I issued it to Niall Stenson. A copy of that PIN is annexed and marked JM-6.
31. Around this time, I also noticed that there was no galvanising paint on the main earth electrode. According to the regulations, you have to have galvanising paint on it to
protect from the weather. That Main/Earth connection has to be under 0.5 Ω, and it was
shown to be under that on the testing sheet. Assuming there was a Main/Earth
connection, a result of 0.5Ω is very unlikely and almost impossible in circumstances
where there was no galvanising paint on the electrode. The reason is that the electrode
would have been out in the weather for at least 2 years and several recent severe weather
events. The earth stake is not copper. It’s only a steel rod. Without the galvanising paint
and in circumstances where it had been exposed to the elements for 2 years, the tests
would have almost certainly returned a result greater than 0.5Ω. This is unless there
was no Main Earth to Neutral connection at all, which is what I was strongly suspecting
by this point.
32. In response to my requests for the production of the tests, Niall just kept saying that he
didn’t have to and wasn’t going to. Later, UGL produced some CCEWs (which are
compliance certificates). But at this point, he didn’t mention anything about the
CCEWs. His only response was that he doesn’t have to produce the tests. He also told
me to ‘be careful what you do’.
33. Around this time, I also asked Lindsay Olssen if he could open up the main box so I
could at least do a visual inspection to confirm that there was a main earth neutral
connection. Lindsay Olssen repeatedly refused.
34. As a result of all this, I formed a view that there was either not a main earth neutral
connection, or if there was it was seriously compromised. I formed this view based on
the following;
a. UGL had not provided the mandatory testing of the earth continuity despite
repeated requests;
b. The test sheets UGL provided (which only showed the connection upstream to
the distribution board) showed serious discrepancies and was consistent with
there being no main earth neutral connection;
c. The fact that there was no galvanising paint made it more likely that the results
on the test sheet were what they were because there was no MEN and not
because there had been a disconnection at the source; and
d. UGL was stopping me from conducting a visual inspection that would have
quickly ruled out the lack of an MEN connection.
35. When UGL wouldn’t give me the access to the main box to do a visual inspection, I
concluded that there must be no MEN connection.
36. After I was refused access to conduct the visual, I said I would need to shut down the
generators so that testing could occur. You cannot do earth continuity tests on a live
generator. At this point I considered there to be an imminent risk because it appeared
that there was either no main earth neutral or the continuity was not good. If there was
no testing on the earth continuity, then you wouldn’t know whether the other upstream
tests were reliable. For a person with a bad heart, it only takes a few milliamps to kill
them. The only way to remove such an unsafe situation is to shut down the generator
so that testing can occur.
37. I then went to shut down the generator and put a tag on it.”
Mr McCabe did not raise any concern about the absence of some galvanising paint on the main earth electrode with anybody on behalf of UGL before shutting down the generators on the HPP. Further, Mr McCabe did not make any reference to the galvanising paint issue, or the AS that relate to it, in any of the three PINs he issued to UGL on 27 June 2024 shortly before shutting down the generators. Having regard to these matters, together with the explanation given in Mr McCabe’s first witness statement about his suspicion that there was no MEN connection at all (as set out in the previous paragraph), I find, on the balance of probabilities and having regard to the Briginshaw standard, that Mr McCabe did not shut down the generators because there was an absence of some galvanising paint on the main earth electrode. Instead, the absence of such paint was one of the factors that led Mr McCabe to suspect that there was no MEN connection at all, or the continuity was not good, which formed the basis of his belief that there was an imminent risk to safety. Mr McCabe’s written submissions support this finding; they contend that Mr McCabe was concerned that earth continuity testing had not been conducted.[49]
In light of my finding that Mr McCabe did not, in fact, shut down the generators because there was an absence of some galvanising paint on the main earth electrode, I do not need to decide whether he had a right under the Enterprise Agreement or the relevant AS to shut down the generators for that reason. In any event, my findings and conclusions in relation to whether Mr McCabe had a right under the Enterprise Agreement or the relevant AS to shut down the generators are set out below.
Clause 9 of the Enterprise Agreement provides:
“9. GRIEVANCE PROCEDURE – OPERATIONAL HEALTH & SAFETY
9.1 The parties to this Agreement agree to do all things practicable to maintain the site
in a safe condition.
9.2 If a safety problem has been identified in a particular work area, an Employee
elected OHS representative or OHS Committee representative will inspect the
area with management representatives and they will determine the appropriate
action to be taken and report back to the Employees concerned.
9.3 Work shall cease only in areas immediately affected by a reasonable concern and
imminent risk to health and safety.
9.4 Work in other areas shall continue without interruption, and all Employees shall
remain available on site to carry out work in areas not immediately affected and/or
to carry out rectification works. Priority will be given to safety rectification.
9.5 No Employee will be required to work in any unsafe area or situation, as
determined by the work area OHS representative or OHS Committee
representative(s).
9.6 Work may continue where an appropriate level of additional PPE is used to counter
any risk to safety, therefore making it safe to work.
9.7 Should a safety dispute arise over whether one or more work areas are safe or
not, the Company and the Employees agree the following procedure shall apply:
9.7.1 When an Employee becomes aware of an unsafe situation, the Employee
must rectify the situation, if it is within their competence to do so.
9.7.2 Where the situation cannot be rectified, immediate inspection of the affected
areas will be carried out by site safety management and the work area OHS
representative or OHS committee representative;
9.7.3 As safety rectification work is agreed for each area, all Employees shall
immediately commence such rectification work;
9.7.4 Upon agreement that such rectification has been completed, normal work
will resume progressively in each area;
9.7.5 Employees shall not leave the project site unless directed to do so;
9.7.6 Should any dispute arise as to the rectification, or failure to rectify the work
required to any area, or in determining whether work can continue safely
taking into consideration any revised safety arrangements or addition PPE
requirements introduced to counteract a safety concern, the safety
committee chairperson, Client representative or the Company may call
upon WorkCover NSW to assist. Where WorkCover NSW is called in, the
parties agree to be bound by that determination. Further, the parties shall
abide by the Building Code 2016, or if it is replaced, any successor Code,
the New South Wales Code of Practice for Procurement, the
Implementation Guidelines to the New South Wales Code of Practice for Procurement: Building and Construction, or other legislative obligation, in regards to settling safety disputes.”
The right or obligation conferred or imposed on an employee by clause 9.7.1 of the Enterprise Agreement to “rectify” an “unsafe situation” of which they become aware must be construed in context, including the balance of clause 9. Accordingly, the right or obligation conferred on an employee by clause 9.7.1 to “rectify” an “unsafe situation” of which they become aware must be construed in conjunction with the requirement in clause 9.3 that “work shall cease only in areas immediately affected by a reasonable concern and imminent risk to health and safety”. It follows that if an employee becomes aware of an “unsafe situation” and their proposed rectification will cause work to cease, the proposed rectification could only be put in place if there was a “reasonable concern and imminent risk to health and safety”.
Clause 9.7.1 of the Enterprise Agreement is clearly focused on the idea that employees should not ignore unsafe situations of which they are aware. The clause does not address concerns or potential concerns about an unsafe situation. There must actually be awareness of an unsafe situation before an employee may “rectify the situation” under clause 9.7.1. The rectification is also qualified by the requirement that the employee must be competent to undertake the rectification steps. The procedure under clause 9.7 provides for rectification steps to be taken upon the employee becoming aware of an unsafe situation, assuming it is within the competence of the employee to take such steps, and before there is an inspection of the affected areas by site safety management and the work area OHS representative or OHS committee representative under clause 9.7.2. Once the process moves beyond the initial potential rectification by the employee under clause 9.7.1 and moves to an inspection by management and the relevant OHS representative under clause 9.7.2, the process requires an attempt to reach agreement on the safety rectification work to be undertaken in accordance with clause 9.7.3. The emphasis on reaching agreement on the appropriate action to be taken is reinforced by clause 9.2. In the event that there is no agreement on the safety rectification work to be undertaken or whether work can continue safely, clause 9.7.6 contains a mechanism for the resolution of such disputes. The mechanism involves SafeWork being called upon to determine the matters in dispute.
Mr McCabe’s observation about the absence of some galvanising paint on the main earth electrode was one of the factors he took into account in forming the belief that there may not be a MEN connection. Other factors which led to Mr McCabe forming that belief were that he had not been provided with all the test results requested by him and Mr Bamford and he was denied access to the main board.
To the extent that Mr McCabe says his concerns about the MEN connection could have been resolved if Mr Olsson had granted his request to be given access to the main board, Mr Olsson only spoke to Mr McCabe quite late in the piece on 27 June 2024. Mr Olsson saw that Mr McCabe was holding an out-of-service tag and believed he was about to shut down the generators.[50] Mr Olsson had not been present for the earlier discussions between Mr McCabe and Mr Stenson.[51] Mr Olsson spoke to Mr McCabe about his intention to shut down the generators. It was in that discussion that Mr McCabe asked Mr Olsson to give him access to the main board, otherwise known as the sync board.[52] Mr Olsson denied the request and explained in his evidence that he did not have the power to grant Mr McCabe access to the main board.[53] Given that Mr Olsson was HR/IR Manager on the HPP, I accept his evidence that he did not have the power or authority to give Mr McCabe access to the main board.
Although Mr McCabe had suspicions and a belief, I am satisfied that he did not have actual knowledge or awareness that there was not a MEN connection, it was seriously compromised, or testing had not been undertaken as required by the relevant AS. The following evidence from Mr McCabe demonstrates this distinction between actual knowledge and Mr McCabe’s suspicions:[54]
“Mr McCabe, you said there was no testing from the DB2 back to the main compound?---Yes.
You don’t know whether there was testing done or not. You just hadn’t seen any test results, is that right?---That is correct and we were asking for them and we were refused.”
Mr Bamford gave evidence to a similar effect:
(a) in his witness statement:[55]
“It was around this time that Justin and I began to discuss with various UGL management (including Brad) and AiG representatives to the effect that if these results could not be produced, and had in fact not occurred, that the installation would need to be isolated…” [emphasis added]
(b) in the witness box:[56]
“… You asked for test results but you did not know whether or not the tests had been done?--- Correct.”
Mr McCabe had a belief that there may not be a MEN connection, but I do not consider that he was actually “aware of an unsafe situation” within the meaning of clause 9.7.1 of the Enterprise Agreement. Further, when Mr McCabe observed that there was some galvanising paint missing from the top of the main earth electrode, he did not proceed straightaway to “rectify the situation”. Mr McCabe raised his concern about there being no MEN connection with Mr Stenson. However, Mr McCabe should have also arranged, or requested, for an immediate inspection of the affected areas, including the main earth electrode, with Mr Stenson or other site safety management under clause 9.7.2 of the Enterprise Agreement. No such inspection took place and Mr McCabe did not mention the issue with the galvanising paint on the main earth electrode in his discussions with Mr Stenson or anyone else from UGL. Mr McCabe participated in those discussions in his capacity as a HSR on the HPP. The object of the discussions between Mr McCabe and Mr Stenson was to agree on the appropriate action to be taken. No such agreement was reached. In those circumstances, the appropriate course of action would have been to engage the mechanism in clause 9.7.6 to resolve the dispute. Mr McCabe could have done this by taking steps to arrange for the safety committee chairperson, Client representative or the Company to call on SafeWork to assist. I do not consider that this was a situation where work should have ceased on the basis that there was a reasonable concern and imminent risk to health and safety (clause 9.3 of the Enterprise Agreement). Mr McCabe had a concern about whether there was a MEN connection, but I do not consider that there was an objectively reasonable basis for Mr McCabe to believe that his concern gave rise to an imminent risk to health and safety. At the time Mr McCabe shut down the generators, he had not seen the CCEW which proved that the compound was earth tested before it was energised, Mr McCabe was aware that SafeWork had closed out the improvement notice it issued to UGL in February 2024 in relation to earth testing, Mr McCabe had not seen all the documents provided by UGL to SafeWork in relation to that improvement notice, Mr McCabe had only requested those documents on the morning of 27 June 2024, and Mr McCabe was not aware of what earth testing had been done since the relevant part of the project was energised. Mr McCabe’s actions in shutting down three generators powering the main administration hub at the HPP had the inevitable consequence that some work on that part of the project ceased, at least temporarily, when the power was shut off. For all of these reasons, Mr McCabe did not have a right or obligation under clause 9.7.1 of the Enterprise Agreement to shut down the generators on 27 June 2024.
The relevant AS are AS3000 and AS3012. AS3000 is entitled, “Electrical Installations (known as the Australian/New Zealand Wiring Rules)”. The scope of AS3000 is described in section 1.1 as follows:
“This Standard sets out requirements for the design, construction and verification of electrical installations, including the selection and installation of electrical equipment forming part of such electrical installations.
These installations are intended to protect persons, livestock, and property from electric shock, fire and physical injury hazards that may arise from an electrical installation that is used with reasonable care and with due regard to the intended purpose of the electrical installation…”
Section 5.5.5.3 of AS3000 provides:
“5.5.5.3 Protection against corrosion
Earthing conductors, and any associated fixing devices, shall be protected from corrosion, including the effects of moisture or contact with dissimilar metals.
Earthing conductors and associated fittings and fixing devices shall comply with the following requirements:
(a) Underground and damp situations All joints and terminations installed in an underground location or other damp situation shall be sealed to prevent the entry of moisture. All associated fittings and fixing devices in such locations shall be constructed of, or protected by, corrosion resistant material.
(b) Exposed to the weather All joints, terminations, fittings and fixtures in locations exposed to the weather shall be constructed of, or protected by, corrosion-resistant material in such a manner that will prevent the entry of moisture affecting the conductor.”
Section 8 of AS3000 requires certain tests and verifications take place before an electrical installation can be put into service. This includes earth continuity testing. Section 8 also requires testing if an alteration or repair is undertaken.
AS3012 is entitled, “Electrical Installations – Construction and demolition sites”. The objective of AS3012 is to establish sound practices for the safe use of electricity at construction and demolition sites. The preface to AS3012 states that it is to be “used in conjunction with AS/NZS 3000”. The scope of AS3012 is described in section 1.1 as setting out “minimum requirements for the design, construction and testing of electrical installations that supply electricity to appliances and equipment on construction and demolition sites, and for the in-service testing of portable, transportable and fixed electrical equipment used on construction and demolition sites”.
Section 1.2 of AS3012 provides:
“Electrical installations on construction and demolition sites shall be carried out in accordance with AS/NZS 3000, except as modified herein, and with the applicable additional requirements of this Standard.
This Standard shall be read and used in conjunction with the requirements of relevant legislation.”
Regulation 163 of the Work Health and Safety Regulation 2017 (NSW) requires a person conducting a business or undertaking that includes the carrying out of construction work to comply with AS3012.
Section 3 of AS3012 is entitled “Verification”. Section 3.1 provides:
“3.1 APPLICATION
This Section describes the verification (i.e. assessment, inspection and testing) procedures and frequency to be followed on all components of the electrical installations of construction and demolition sites. It applies to—
(a) construction wiring;
(b) switchboards;
(c) RCDs and RCD type;
(d) transportable structures;
(e) the connection between generator windings and the equipotential bonding system on
generators fitted with an RCD;
(f) the connection between the frame and the equipotential bonding system of an isolated winding generator;
(g) inverters; and
(h) any other electrical equipment used on construction and demolition sites.”
Section 3.7 of AS3012 provides:
“3.7 ACTIONS RESULTING FROM INSPECTION AND TEST
3.7.1 Construction wiring
Where a visual inspection identifies damage or non-compliance with this Standard, that part of the installation shall be isolated, repaired or replaced and tested as required.3.7.2 Non-compliant equipment
Where inspection or testing identifies equipment that fails to comply with the criteria given in this Standard, the equipment shall be—
(a) withdrawn from service immediately, have an out-of-service tag attached to it warning against further use; and
(b) sent for repair, disposal or destruction by an authorized repair agent or service personnel.3.7.3 Compliant equipment
New equipment, after inspection and tests, shall be fitted with a durable, non-reusable, non-metallic tag. Construction wiring, switchboards, fixed RCDs, fixed and transportable electrical equipment need not be tagged.
Following periodic verification, compliant equipment shall be re-tagged. The items covered in Clause 3.3.2 need not be tagged.
The tag, which may be colour coded to identify the period in which the test was performed, shall include the—
(a) name of the person who performed the tests; and
(b) test and re-test dates.
NOTE: Appendix D gives a recommended colour coding schedule for tags on compliant equipment.”
In my view, the obligations set out in section 3.7 of AS3012 to isolate, repair or replace and test (s 3.7.1) and withdraw from service immediately, have an out-of-service tag attached to it warning against further use (s 3.7.2) do not apply to the main earth electrode observed by Mr McCabe on 27 June 2024. First, sections 3.7.1 and 3.7.2 of AS3012 refer to “compliance with this Standard” and “comply with the criteria in this Standard” respectively. The obligation to have an earthing conductor such as the main earth electrode in question in this case protected by corrosion-resistant material arises under section 5.5.3 of AS3000. I consider that the reference to “this Standard” in sections 3.7.1 and 3.7.2 of AS3012 is clearly intended to refer to AS3012, not AS3000. Although section 1.2 of AS3012 requires that electrical installations on construction and demolition sites to be carried out in accordance with AS3000, that provision does not incorporate AS3000 into AS3012. The distinction between “this Standard” and AS3000 is apparent from the reference to both terms in section 1.2 of AS3012. In addition, the obligation in section 3.7.2 of AS3012 to “comply with the criteria in this Standard” sits comfortably with provisions of AS3012 which set minimum criteria, such as section 3.5.4 of AS3012 which requires insulation resistance to be not less than the criteria given in Table 7 beneath section 3.5.4, but does not sit well with an obligation under section 5.5.5.3 of AS3000 to ensure that earthing conductors are protected by corrosion-resistant material. Secondly, the obligation imposed by section 3.7.2 of AS3012 applies to non-compliant “equipment”. I do not consider that an earthing conductor such as the main earth electrode in question in this case is “equipment” within the meaning of section 3.7.2 of AS3012. AS 3000 distinguishes between equipment and conductors,[57] as does AS3012.[58] In addition, it would not make much sense to take the step required by section 3.7.2(a) of AS3012 and place an out-of-service tag on a main earth electrode “warning against further use” because a main earth electrode is not a piece of equipment which can be used or not used.
Mr Stenson gave evidence that if an issue in relation to galvanising paint on the main earth electrode had been raised by Mr McCabe or any other person, it would have been dealt with as part of a planned maintenance shut down and would not have resulted in the immediate shut down of the generators. This course of action is consistent with Mr Stenson’s opinion that the relevant AS do not require the earthing conductor to be “withdrawn from service immediately” if some galvanising paint is missing from the top of the conductor. Mr Bamford and Mr McCabe have a different opinion on this issue.[59]
Further, the third and final PIN issued by Mr McCabe at 10:50am on 27 June 2024 alleged that UGL had “failed to ensure that mandatory testing of main earth continuity for main compound and stores installation prior to energisation as outlined in AS 3012 Section 3 and AS 3000 Section 8” [emphasis added]. Mr McCabe completed section 6 of the PIN so as to give UGL until 5 July 2024 to comply with it. Notwithstanding that UGL had until 5 July 2024 to comply with the PIN, Mr McCabe only gave UGL about 25 minutes before proceeding to shut down the generators at about 11:15am on 27 June 2024. UGL was attempting to print out the relevant CCEWs at the time Mr McCabe shut down the generators. If Mr McCabe had waited even a few more minutes, the CCEWs would have been printed and given to him. Mr McCabe accepts that the relevant CCEW would have met the requirements of the PIN. That is so because it was proof that earth testing had been completed before the HPP was energised in 2023. Mr McCabe still wanted to see the test results which sat behind the CCEW completed by the licensed electrician engaged by Coates to undertake the pre-energisation testing. There is a debate between the parties about whether UGL was required to keep records of those underlying test results.[60] But on any view of it, that dispute did not justify Mr McCabe taking unilateral and immediate action to shut down the generators at the HPP on 27 June 2024. It follows that I do not accept Mr McCabe’s submission that an inference should be drawn that the test results which sit behind the CCEW would not have assisted UGL’s case.
There is a dispute as to whether UGL gave Mr McCabe a reasonable and lawful direction not to shut down the generators before he did so. I am satisfied, on the balance of probabilities and having regard to the Briginshaw standard, that Mr McCabe was given a direction not to shut down the generators on 27 June 2024. First, there was clearly a disagreement between Mr McCabe and Mr Bamford, on the one hand, and representatives from UGL, including Mr Stenson, Mr Hill and Mr Olsson, on the other hand, about whether there was any risk to safety in connection with the MEN connection and related testing. There is no dispute that Mr Bamford flagged an intention to shut down the generators when he warned UGL to “shut down computers and save documents”.[61] Nor is there any dispute that UGL was opposed to the notion that the generators should be shut down. Both Mr McCabe and Mr Bamford agree that Mr Stenson told Mr McCabe to “be careful what you do here”. These contextual matters support the likelihood that a direction was given to Mr McCabe not to shut down the generators. Secondly, Mr McCabe and Mr Bamford accept that Mr Olsson said to Mr McCabe, in a conversation after their discussion with Mr Stenson, words to the effect, “you are not shutting them down” in response to Mr McCabe’s inquiry as to whether management had notified the workforce of the outage.[62] If there had been any doubt in Mr McCabe’s mind as to whether Mr Stenson had warned him “to be careful” or only “requested” that he not shut down the generators, rather than being instructed not to shut down the generators, Mr Olsson’s statement that Mr McCabe was “not shutting them down” ought to have made crystal clear to Mr McCabe that he had been given a direction. Any reasonable person would have understood the statement in that way. Thirdly, the evidence given by Mr Stenson and Mr Hill as to whether each of them asked Mr McCabe not to shut down the generators was consistent, and I particularly found Mr Stenson to be a persuasive and reliable witness. Mr Stenson is not employed by UGL but is seconded to UGL through an arrangement with his employer. He is responsible for a team of about 260 people on the HPP.[63] Mr Stenson did not give evidence before the Commission voluntarily. He was ordered to attend and give evidence on two separate days. His evidence in chief was given orally, in a non-leading manner, rather than by way of a witness statement. I consider that Mr Stenson had a good recollection of the important parts of his interactions with Mr McCabe and Mr Bamford on 27 June 2024. I do not consider that Mr Stenson was shaken during his cross examination. I prefer the evidence given by Mr Stenson and Mr Hill that Mr McCabe was asked not to shut down the generators on 27 June 2024 over the consistent evidence of Mr McCabe and Mr Bamford that no such request or direction was given.
I am satisfied that the direction given to Mr McCabe on 27 June 2024 not to shut down the generators was lawful and reasonable.[64] I do not accept Mr McCabe’s submission that shutting down the generators was both practically and legally necessary. For the reasons explained above, Mr McCabe did not have a right or obligation under clause 9.7.1 of the Enterprise Agreement or the relevant AS to shut down the generators without UGL’s consent. The direction was clearly within the scope of Mr McCabe’s employment as an Electrician on the HPP. Earth testing had been conducted on the HPP before it was energised. So much is clear from the relevant CCEW, which would have been provided to Mr McCabe and satisfied his PIN if he had waited a little longer than about 25 minutes after issuing the PIN before he shut the generators down. SafeWork had issued an improvement notice to UGL in relation to earth testing in February 2024 and had closed out that improvement notice in March 2024. To the extent that Mr McCabe remained concerned about the MEN connection and earth testing, it was appropriate for him to make inquiries, ask questions, and seek the production of documents in his capacity as a HSR on the HPP. However, he only gave UGL a matter of hours to respond to what were broad oral requests for testing documentation. The third and final PIN issued by Mr McCabe clearly articulated allegations against UGL, which UGL was able to comprehend and respond to by providing the CCEWs in a relatively short period of time. Had Mr McCabe given UGL a reasonable time to respond to that PIN and considered the CCEWs, he could have issued a further PIN or other specific request for particular documents if he remained concerned about testing since the initial energisation at the site, including testing after alterations or repairs were made. Mr Bamford could have made a similar written request in his capacity as a right of entry permit holder, as he had in the past. This is so notwithstanding Mr Bamford’s oral requests for some records relating to the issues in dispute. All of these matters, coupled with the obvious inconvenience, disruption and risk caused by Mr McCabe shutting down the generators for the main administration hub at a significant project, supports my assessment that the direction given to Mr McCabe was reasonable in all the circumstances.
Having regard to all the evidence, I have reached a state of satisfaction that UGL had a sound, defensible and well-founded reason to terminate Mr McCabe’s employment. He failed to comply with a lawful and reasonable direction not to shut down the generators on 27 June 2024. There was no objectively reasonable basis for Mr McCabe to believe that the alleged safety breach gave rise to an immediate risk to health and safety. Mr McCabe did not have a right or obligation under clause 9.7.1 of the Enterprise Agreement or the relevant AS to shut down the generators. His conduct constituted a breach of UGL’s Workplace Behaviour Policy and his contract of employment.[65] Mr McCabe’s conduct was both deliberate and serious.
Notification of reason (s 387(b))
Mr McCabe was notified of the reasons for his dismissal orally in a meeting on 11 November 2024, in a show cause letter dated 11 November 2024, and in the letter of termination.
Opportunity to respond (s 387(c))
During the investigation process Mr McCabe accepts that he was given opportunities to respond, and did in fact respond, to the reasons for his dismissal.
Unreasonable refusal to allow a support person (s 387(d))
UGL offered Mr McCabe the opportunity to have a support person with him at each meeting relating to his dismissal.
Warnings of unsatisfactory performance (s 387(e))
Mr McCabe was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.
Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))
UGL is a substantial enterprise. It has human resource management specialists and expertise. In all the circumstances, I am satisfied that neither the size of UGL’s enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting Mr McCabe’s dismissal.
Other relevant matters
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post in the following terms:[66]
“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button[2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited[2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.
[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:
(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.
(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]
(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and her or her dependents.]
[43] The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.
...
[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):
“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”
[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with her or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].”
Mr McCabe was employed by UGL for about 18 months prior to his dismissal. He had not been subjected to any disciplinary action prior to his dismissal. Having regard to the relatively short duration of Mr McCabe’s employment with UGL, I consider the length and quality of his employment with UGL to be a neutral consideration in my assessment of the fairness of his dismissal.
Mr McCabe was summarily dismissed by UGL on grounds of serious misconduct. The proportionality of the summary nature of Mr McCabe’s dismissal must be weighed against the gravity of his misconduct in respect of which UGL acted in deciding to dismiss him.[67]
In Sharp v BCS Infrastructure Support Pty Ltd,[68] a Full Bench of the Commission discussed the question of whether particular conduct by an employee warranted their summary dismissal as an “other relevant matter” within the meaning of s 387(h) of the Act (references omitted):
“[33] The relevance of the definition of “serious misconduct” in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of “serious misconduct” for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression “serious misconduct” is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is “satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person”. However, it is clear that conduct may constitute “misconduct” for the purpose of s.392(3) without necessarily being “serious misconduct”. The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.
[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice” and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. “Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd Buchanan J said:
“[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful misconduct’ are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term ‘serious misconduct’ is under consideration an evaluation of what conduct represents ‘serious’ misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).”
[35] In the Decision, the Vice President, correctly, did not attempt to address the parties’ submission concerning “serious misconduct” in the context of his consideration of whether there was a valid reason for the dismissal, but only as a relevant matter under s.387(h). His findings at paragraph [55] and [56] that Mr Sharp’s conduct was “serious misconduct” was, we consider, responsive to the submission of BCS noted in the first sentence of paragraph [52] that “the Applicant’s conduct constituted serious misconduct justifying immediate dismissal”. That is, “serious misconduct” was used as a shorthand expression to described misconduct of a nature that justified summary dismissal. A finding of that nature was a matter which was open to be taken into account as relevant under s.387(h) because it involved an assessment of the seriousness of the conduct in question.”
In my assessment, Mr McCabe’s conduct was serious because he acted in direct defiance to a lawful and reasonable instruction given to him on 27 June 2024 and the consequences of his actions in shutting down three generators were of some significance. The three generators in question powered the main compound, including the main office complex, on the HPP. Mr McCabe’s conduct in shutting down the generators had the following consequences:
(a)Shutting down the generators caused a loss of power to the stores area, toilets (including the macerator which forms part of the toilet system), and main administration offices where the first aid facilities and main computer server were located and people were working.[69] This was clearly disruptive to the workers in that area. It also had the capacity to result in a loss of important data and records. I accept that the nurse call station had back up battery power, so was not impacted by the generators being turned off.
(b)The HPP site emergency evacuation protocols are powered by generators powering the main compound (including the main office complex) and Mr McCabe’s conduct in turning off the generators resulted in an inability for the HPP site to properly enable emergency evacuation communication protocols across the site, including sirens, radios and PA systems.
I accept that this was an isolated incident of misconduct and Mr McCabe was acting in good faith in the sense that he had a genuine concern that there was no MEN connection and earth testing had not been carried out. I also accept that he was acting with the objective of ensuring his and his work colleagues’ safety. However, there were numerous options open to Mr McCabe other than defying the direction given to him and shutting down the generators. Those options included waiting a reasonable period for the production of the CCEWs, issuing further PINs, making other specific requests for particular documents and giving UGL a reasonable period of time to produce such records, inviting UGL management to inspect the main earth electrode and communicating his concerns about a lack of paint on the main earth electrode to UGL, or utilising the mechanism in clause 9.7.6 of the Enterprise Agreement to have SafeWork determine the dispute about earth testing and the MEN connection. Having regard to all the circumstances, I consider that Mr McCabe’s conduct was of such a grave nature as to be repugnant to the employment relationship.
I accept that the dismissal has been difficult for Mr McCabe both personally and economically. Mr McCabe lost a well-paid job and has not been able to secure alternative employment. The dismissal has also really impacted Mr McCabe’s health.[70] However, I consider that the seriousness of the conduct in which I have found that Mr McCabe engaged outweighs the harsh consequences of the dismissal insofar as it has impacted on Mr McCabe’s personal and economic situation. My assessment is that Mr McCabe’s dismissal was not disproportionate to the gravity of his misconduct.
Mr McCabe contended in his written submissions that it had become common practice that when a HSR would identify a safety concern, they would isolate the generator to allow a rectification to occur. The evidence before the Commission does not establish that there was a common practice of HSRs acting in a unilateral way to shut down generators at the time Mr McCabe engaged in misconduct on 27 June 2024.[71]
I am satisfied on the evidence that UGL undertook a fair investigation and afforded Mr McCabe procedural fairness prior to making the decision to terminate his employment. An external investigator was appointed by UGL. Mr McCabe was interviewed by the investigator and was given an opportunity to provide information to the investigator and respond to the allegations against him.
Conclusion
After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that UGL’s dismissal of Mr McCabe was not harsh, unjust or unreasonable. There was clearly a valid reason for Mr McCabe’s dismissal. Mr McCabe took unilateral action to shut down three generators on a major project in direct defiance to an instruction not to do so. Although Mr McCabe honestly believed there was a risk to safety, his belief was based on limited information, and he did not give UGL a reasonable opportunity to respond to the third and final PIN he issued on 27 June 2024 or the other demands he made for documentation. UGL undertook a reasonable investigation and afforded Mr McCabe procedural fairness before making its decision to terminate his employment.
For the reasons given, Mr McCabe’s application for relief from unfair dismissal is dismissed.
DEPUTY PRESIDENT
Appearances:
D Mahendra, counsel, for the Applicant
G Fredericks, counsel, for the Respondent
Hearing details:
2025.
Newcastle:
18-19 March and 19 May.
[1] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8
[2] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
[3] Ibid
[4] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
[5] Ibid
[6] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]
[7] Ibid
[8] Ibid
[9] Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J
[10] [2019] FCA 451
[11] Ibid at [18]
[12] Hearing Book at p 293
[13] Transcript at PN365-PN366
[14] Transcript at PN594
[15] Transcript at PN1185-PN1202
[16] Hearing Book at 277[84]
[17] Ibid
[18] Hearing Book at p 1255[12]
[19] Ibid
[20] Transcript at PN1294
[21] Transcript at PN1335
[22] Transcript at PN873
[23] Transcript at PN878
[24] Hearing Book at pp 280[104], 1293[6], 1294[18] & 1310[9]; Ex A8 at [6]
[25] Ibid
[26] Transcript at PN1294
[27] Hearing Book at pp 145[32] & 1294-1295[17]-[19]; Ex A8 at [5]; Ex A9 at [10]
[28] Transcript at PN1050-PN1056 & PN1178-PN1184
[29] Hearing Book at p 1255[14]
[30] Hearing Book at p 1310[11]
[31] Ex A9 – Mr Bamford does not respond to PN1294 where Mr Stenson gave this evidence. Compare Ex A8 at [5] where Mr McCabe denies Mr Stenson’s account of the conversation.
[32] Hearing Book at p 1310[11]
[33] Hearing Book at p 1256[16]
[34] Transcript at PN1297
[35] Hearing Book at p 1256[17]
[36] Transcript at PN1402-PN1405
[37] Hearing Book at p 281[109]
[38] See also PN416
[39] Hearing Book at p 281[110]
[40] See also Hearing Book at p 1292 [4], PN421 & PN427-PN431
[41] Hearing Book at p 1125[11]-[15]
[42] Hearing Book at pp 1292[3] & 1315[43]-[46]
[43] Transcript at PN492-496
[44] Transcript at PN424
[45] Transcript at PN928 & PN1407-PN1408
[46] Hearing Book at pp 78-79
[47] Hearing Book at pp 143-4 [23]-[27]
[48] Ex A8 at [7(b)]
[49] Applicant’s written submissions dated 12 February 2025 at [20] & [26(a)] and Applicant’s written submissions in reply dated 14 March 2025 at [2(a)], [3(a)], [7] & [16(a)]; see also PN134 and PN301
[50] Transcript at PN871
[51] Transcript at PN873
[52] Transcript at PN905
[53] Transcript at PN907-908
[54] Transcript at PN323-324
[55] Hearing Book at p 279[95]
[56] Transcript at PN694
[57] See, for example, sections 1.4.31, 1.4.32, 1.4.49, 1.4.50, 1.4.81 and 5 of AS3000
[58] See, for example, sections 2.6.2, 2.6.5, 3.5.2 of AS3012
[59] See, for example, Ex A8 at [8]
[60] Ex A3 – AS3012 at clause 3.9 (page 39)
[61] Hearing Book at p 280[104]
[62] Hearing Book at pp 1292[4] & 1315[45]
[63] Transcript at PN1245
[64] CFMMEU v Mt Arthur Coal Pty Ltd[2021] FWCFB 6051
[65] Hearing Book at pp 1146 and 1149-1166
[66] [2013] FWCFB 6191
[67] Johnson v Northwest Supermarkets Pty Ltd[2017] FWCFB 4453 at [5]; Sharp v BCS Infrastructure Support Pty Ltd[2015] FWCFB 1033 at [34]
[68] [2015] FWCFB 1033
[69] Hearing Book at p 1127[25]; PN388-PN391; PN705-PN710; PN1420
[70] Hearing Book at pp 146-147 [39]-[42]
[71] Hearing Book at p 1127[27]-[30]
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