McGrath v Sydney Water Corporation - [2013] FWC 793

[2013] FWC 793

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Paul McGrath and Maitland Hayward
v
Sydney Water Corporation t/as Sydney Water
(U2012/9756; U2012/9757)

DEPUTY PRESIDENT SAMS

SYDNEY, 17 APRIL 2013

Applications for unfair dismissal remedies - alleged failure to comply with health and safety procedure - ‘isolation’ of electrical power - risk to health and safety of others - employer investigation - dishonesty during investigation - serious misconduct - allegations not substantiated - no valid reason for dismissals - future redundancies - procedural unfairness - lengthy periods of unblemished service - reinstatement not inappropriate - lost remuneration heavily discounted for dishonesty - associated orders.

INTRODUCTION

[1] This decision will determine unfair dismissal applications filed by Paul McGrath and Maitland Hayward (the ‘applicants’) seeking reinstatement and associated orders, pursuant to the provisions of Ch 3 - Part 3-2 of the Fair Work Act 2009 (the ‘Act’). The applicants were dismissed by Sydney Water Corporation (the ‘respondent’ or ‘Sydney Water’) on 5 September 2012, following an investigation and findings that they had failed to comply with Sydney Water’s Lockout/Tag Out (LOTO) procedure (HSP049) when carrying out the electrical ‘isolation’ on WS0194 Reservoir, Yagoona, New South Wales on 16 May 2012 and that this failure caused a real risk to the health and safety of others attending the site.

[2] Both applicants are experienced electricians (Level 4) with 43 years service (Mr McGrath) and 34 years service (Mr Hayward). They were employed under the Sydney Water Trades and Apprentices Enterprise Agreement 2010 [AE878307] (the ‘Agreement’). Mr Hayward has no disciplinary record and Mr McGrath had one written warning from May 2012, which was under appeal and is contested. They strongly denied that they had failed to comply with Sydney Water’s policies and procedures, and in any event, there was never any real risk to the health and safety of others attending the site. The allegations against the applicants are identical and were detailed in separate letters to them of 24 July 2012 as follows:

‘Following the fact finding investigation you are required to attend a meeting with myself and a Human Resources Representative to respond to the following allegations.

1. It is alleged that you failed to comply with the LockOut / TagOut procedure (HSP 049) while carrying out the electrical ‘isolation’ on WS0194 Reservoir, specifically,

a. you failed to ensure all energy sources into or within a device must be ‘isolated’ prior to work commencing.

b. you failed to ensure all isolations must be tested for effectiveness prior to commencement of any work - ie the equipment must be proved de-energised and shown to have no stored energy.

c. you failed to ensure all isolations must have the appropriate tag applied at each ‘isolation’ point.

d. you failed to ensure wherever possible each isolation point must be locked out as well as tagged.

e. you failed to ensure that ‘isolated’ equipment was proved isolated from all sources of energy. This includes ensuring…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FWC 793
Decision Date: 17 APRIL 2013

CaseChat Overview and Summary

The Federal Court heard an application for unfair dismissal remedies brought by McGrath against the Sydney Water Corporation. McGrath alleged that he was unfairly dismissed due to the Corporation's failure to follow health and safety procedures, specifically related to the isolation of electrical power, which posed a risk to the health and safety of others. The case also involved allegations of dishonesty during the employer's investigation, leading to claims of serious misconduct. The court was required to determine whether the dismissal was substantively unfair, whether there was procedural unfairness, and if reinstatement or compensation was appropriate.

The primary legal issues were whether the employer had valid reasons to dismiss McGrath and whether the dismissal process was fair. The court examined the employer's investigation, the evidence of dishonesty, and the sufficiency of the reasons provided for the dismissal. It also considered the length of McGrath's unblemished service and the impact of his alleged dishonesty on the compensation awarded. The court found that the allegations of serious misconduct were not substantiated, and the dismissal was not based on valid reasons. It also found procedural unfairness due to the lengthy periods of unblemished service and the employer's failure to follow proper procedures. Consequently, the court ruled that reinstatement was not inappropriate, although the lost remuneration was heavily discounted due to the employee's dishonesty.

The court ordered that McGrath be reinstated to his former position, with associated orders for back pay and compensation. The orders recognised the employer's procedural unfairness but also took into account the employee's misconduct during the investigation. The decision emphasised the importance of adhering to health and safety procedures and conducting thorough investigations before dismissing an employee. The court's ruling highlighted the balance between the employer's right to manage their workforce and the employee's right to procedural fairness in dismissal proceedings.

Orders