Mr Nathanial Zanker v Bench Excavation and Civil Construction Pty Ltd T/A Bench Excavation and Civil Construction

[2015] FWC 4691

[2015] FWC 4691

FAIR WORK COMMISSION

DECISION

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

Mr Nathanial Zanker
v
Bench Excavation & Civil Construction Pty Ltd T/A Bench Excavation & Civil Construction
(U2015/3624)

DEPUTY PRESIDENT BARTEL ADELAIDE, 10 JULY 2015

Termination of employment - whether dismissal harsh, unjust or unreasonable.

Introduction

[1] Nathanial Zanker (the applicant) was employed as a Team Leader by Bench Excavation & Civil Construction Pty Ltd (“Bench” or the respondent) on 21 January 2013. He was dismissed from employment on 17 February 2015 for serious and wilful misconduct and has filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] The main business activity conducted by Bench related to contracts it held with the APA Group (APA) to replace and service gas mains in identified geographical areas. APA has a significant level of authority over the work performed, and the personnel engaged by Bench. APA could:

● Approve Bench personnel engaged on the contract;
● Conduct competency assessments of Bench personnel;
● Specify the nature of the qualification and accreditation held by Bench field operatives;
● Accredit Bench personnel to be engaged as team leaders and senior team leaders;
● Specify operating guidelines to be followed by Bench personnel;
● Suspend the work of Bench on a specified site/s; and
● Require the removal of Bench personnel from APA sites.

[3] There were no issues raised with the applicant’s performance or conduct until February 2015. He had come to the respondent as an experienced operative in the gas industry. In the course of his employment he was promoted from Team Leader to Senior Team Leader on the basis that he was “the most competent Team Leader” engaged by Bench and “he knew all the procedures”. 1

[4] As Senior Team Leader the applicant was the person responsible for the team undertaking the work. He would conduct tool box meetings, determine the work to be done on a particular day, allocate jobs to the crew members and deal with day to day issues on site. If he left the site for any reason one of the other team leaders in the crew would assume responsibility. 2

[5] The letter of dismissal dated 18 February 2015 stated that the respondent and APA had concluded that the applicant failed to confirm that there wasn’t a leak in the gas main and that he failed to conduct a sufficient investigation to confirm the integrity of the main. The letter stated that the outcome of this event, if undetected, could have in all probability led to ignition of gas within a residential property leading to serious injury or worse. 3

[6] It is agreed that the applicant conducted the pressure test and recorded that the test result was a “pass”. 4 The applicant accepts that there was a gas leak, but denies that he was at fault in the testing that he undertook or that he falsified the results of the test. He maintains that the test was conducted properly and that no leak was evident.

[7] The applicant and respondent were unrepresented 5 and the matter proceeded by way of a determinative conference pursuant to s.398 of the Act. The applicant gave evidence and called his supervisor, Peter Penfold. The respondent called the following witnesses:

Barry Pringle: Managing Director of the respondent

John Winslett: Operations Manager

Nick Atkinson: Gas Fitter/Plumber

[8] Statements were admitted for each witness. The content of the statements, oral evidence and various attachments to the statements and other documentation are referred to as relevant in the discussion that follows.

The issues

The Beaufort Crescent incident

[9] On 9 February 2015, Mr Winslett received a Notice of Suspension from APA (the Notice). 6 The Notice referred to “multiple incidents which have occurred while undertaking the Gas Mains and Service Laying Work ... on or about the 14th of November 2014 in Beaufort Crescent, Felixstow.” The Notice stated that APA was of the view that the conduct of the crew carrying out the work was unsatisfactory and requested that the entire crew be removed from the site. The Notice stated that the crew was not to work on any APA site until further notice.

[10] An APA Field Issues Report (“the Report”) attached to the Notice stated that an APA crew had been called to an address in Felixstow to deal with a gas leak. The Report stated that, “Located leak on a 40mm main ... where service tee had not been welded (only bolts tightened). Additionally, it appears no marking or scraping of the inlet had occurred and the inlet pipe & service tee outlet was not aligned.” APA directed the respondent to complete an investigation on the workmanship; investigate whether a pressure test was undertaken; and to direct the crew to make the work area safe before standing them down.

[11] Pressure/leak testing must be undertaken before gas is introduced into any main or inlet service to ensure its integrity, strength, leak tightness and regulatory code compliance. Several methods of leak detection are prescribed in the APA procedure, 7 depending on the purpose and diameter of the pipes. The Washington Leak Detector was, appropriately, used for the testing undertaken by the applicant’s crew at Beaufort Crescent on 14 November 2014.

[12] The APA procedure for use of the Washington Leak Detector requires that:

● Testing should be undertaken in the shade;
● The Detector is connected to the test pipe;
● Pressure is increased in the test pipe;
● When the appropriate pressure is reached the pressure raising device is disconnected, the connection point is capped off and the pressure is allowed to stabilise for a specified period of time;
● The valve on the detection unit is opened and the fluid in the dip tube (flourocein) is observed over a period of time determined by the pipe size;
● If the flourocein rises above the top mark on the tube, the test fails.

[13] Mr Pringle and Mr Winslett met with the applicant on the morning of 10 February 2015. The applicant subsequently provided a written statement, 8 in which he stated that:

● Two crew members (LB and JM), both of whom were accredited team leaders had been welding on the day in question, and the applicant placed “a fair bit of trust” in them;

● The day was warm and had been preceded by days in the high 30’s, increasing the ground temperature;

● LB proceeded to pressure the main and noticed that the flourocein was rising up the tube, even before the testing commenced. The applicant then proceeded to retest the main in a cooler position. The flourocein rose “a little bit” but was within tolerance. The applicant was of the view that the rise was due to the ground temperature. He gave the OK to gas up the main.

[14] Mr Pringle interviewed LB and JM. He took notes of the interviews 9 but they are not signed or otherwise verified by LB and JM as being true and correct, and are not dated. The applicant took issue with these notes being admitted, but did not challenge the veracity of most of the content. According to the notes, LB conducted the first pressure test, and it failed. LB and JM then retested and it failed again. At that point they called the applicant over and he retested again. According to the notes attributed to JM, the applicant’s test also failed. The applicant disputes this. The two sets of notes both record that, after he conducted the test, the applicant referred to the heat in the pipe affecting the level of the flourocein and then directed LB and JM to gas up the main.

[15] On 12 February 2015 the applicant provided a further statement to Mr Pringle regarding the incident on 14 November 2014. 10 In it, he put forward a possible scenario to explain why the test did not record a leak, namely that the mains pipe had not been “tapped”, that is, there was no open flow between the main and the service inlet to the residence (“the second explanation”). He stated that the pressure test would not detect a leak in this circumstance. He suggested that if the tee was subsequently tapped once the main was gassed, the leak may not have been detected if the bulk of the tee had been backfilled.

[16] The applicant also apologised for failing to detect the leak and stressed that he did not falsify any document recording the outcome of the test. He stated that his actions were not malicious and that “... if given the chance this would never happen again” and that he should not be banned for “a genuine mistake”.

[17] The following exchange took place when I questioned the applicant about this statement:

“… do you agree with what’s in that statement?…The genuine mistake is on my site as team leader there was a gas leak.  I understand that.  But I have proven or shown quite a lot of evidence to show that there as no - it was not my doing that it happened.  Some work was done after the fact of what I was done.  I was never notified of such a problem and if I would as put in statements I would have gone to any length I needed to - as I have done in the past - to identify leaks.

So I just need to be clear:  So do you say you’ve done anything wrong at all?---I don’t feel I did, no.  There was an incident on my site, yes; but I don’t think I was responsible for that incident happening.” 11

[18] Mr Pringle completed an “Incident/Near Miss Report” on 11 February 2015. 12 This document sets out the content of the interview with the applicant on 10 February 2015 and of the subsequent interviews with LB and JM. The report concludes that, “With all probability Nat did not confirm there was not a leak or conduct a sufficient investigation to confirm the integrity of the gas main.”

[19] The report goes on to state that the applicant displayed very poor judgement as Supervisor and that his actions, while not malicious, constitute gross negligence because gas entered a residential property at a low explosive limit (LEL). Issues arising from the incident on 14 November 2014 were identified for remedial action, including reinforcing existing welding procedures, the provision of further training and discussion of “lessons learned” at tool box meetings.

[20] Mr Winslett has extensive experience in the gas industry, including as a team leader of a team installing gas mains in the Adelaide central business district. It is clear from the proceedings that Mr Pringle relies on Mr Winslett for technical advice.

[21] Mr Winslett did not accept either of the applicant’s explanations for the incident on 14 November 2014. The temperature on the days preceding the incident were in the mid to high 30’s and in Mr Winslett’s experience, this would not interfere with the Washington test, which operates in substantially higher temperatures. He noted that only direct sunlight affects the test and that the initial tests were conducted by LB and JM in the shade and that the applicant moved it to a shadier position. Mr Winslett stated that “… although temperature can affect the Washington Test, this is only to a minor degree and the effect of temperature is clearly distinguishable from a leak caused by a join not being welded.” 13

[22] He noted that APA had conducted its own tests and concluded that it was highly improbable that the pressure test would not have picked up the leak. Mr Winslett noted that this was consistent with the information provided by LB and JM that the test failed when they undertook it. 14

[23] The second explanation provided by the applicant was not, as the respondent portrayed it, a recital of what had occurred, but a “possible scenario” as to why the leak was not detected when the pressure test was conducted. In any event, it was discounted by Mr Winslett as inconsistent with the information provided by LB and JM that the pressure test had failed. It was his view that if events had occurred as suggested by the applicant, it would disclose an even more serious breach of policy. 15

[24] Mr Atkinson was the plumber/gasfitter involved on the day with responsibility for purging the pipes of oxygen used for pressure testing. He stated that if the tee wasn’t tapped no gas would flow in the inlet pipe, but this wasn’t the case on the day. He also stated that if the tee had been tapped once gas had entered the mains, the leak would have been obvious. 16

[25] Mr Penfold was the applicant’s supervisor. He is no longer engaged by the respondent. I am unaware of the terms surrounding the cessation of his employment, but it is clear that he bears some animosity toward the respondent. He also has a long standing friendship with the applicant.

[26] His statement 17 addresses, among other things, his recollection of the day of the incident. Much of his evidence consisted of opinions he formed from the circumstances he observed at Beaufort Crescent. He was not a direct witness to the applicant’s testing. It was his conclusion that the second explanation put forward by the applicant was in fact what had occurred, based on his observations of personnel and equipment on the day.

[27] It became apparent that Mr Penfold’s recollection of certain circumstances on the day was inaccurate. He stated that he located the applicant “carding” on Maple Street, meaning that the applicant was notifying residents of upcoming work. The respondent’s records show that this could not be correct because the work had been completed on Maple Street before 14 November.

[28] I am inclined to the view that the second explanation put forward by the applicant and attested to by Mr Penfold was a matter that arose from discussions between them 18 and should not be viewed as two independent accounts. I also consider that the applicant tended to favour Mr Penfold’s recollection of events over his own memory, even when the evidence was clearly incorrect such as his carding on Maple Avenue on the day of the incident.19

[29] Some of Mr Penfold’s evidence concerning the location of personnel and the timing of work undertaken on the day was contradicted by Mr Atkinson. Where this is the case I prefer Mr Atkinson’s evidence. I consider that Mr Penfold’s statement is unreliable in some respects and ultimately is of little probative value in relation to the Beaufort Crescent incident. The weight of evidence indicates that the applicant’s second explanation is an improbable rather than probable scenario.

The Cardigan Avenue incident 20

[30] In the course of APA’s investigation into Beaufort Crescent a further problem was discovered at Cardigan Avenue, Felixstow. An APA Field Issues Report noted that an APA leak crew had attended a gas escape at this address on 11 February 2015 and rectified a leak to a ball valve and EF coupling. The applicant and his crew had undertaken a service upgrade at the address on 13 November 2014.

[31] The applicant was interviewed about this issue by Mr Winslett. According to Mr Winslett’s notes, the applicant stated that all procedures were followed and the pressure test passed. He said that no leak at the ball valve was detected at the time and that the fitting may have ‘let go’ sometime after testing. In his witness statement, Mr Winslett indicated that he did not regard this matter to be as “clear cut” as the Beaufort Crescent issue, but that it was “more probable than not” that the “soapy water test” 21 was not conducted or not conducted properly.

[32] It is unclear what weight the respondent attached to this incident in relation to the decision to dismiss. The letter of termination appears to refer only to the 14 November incident, as it cites a single event being a leak in the gas main. It is also the case that the respondent’s conclusions regarding the Cardigan Avenue incident were not discussed with the applicant at any stage prior to the dismissal. At its highest, there was a fleeting reference by Mr Pringle to “another serious leak” when the applicant was advised of his termination. 22

Process leading to dismissal

[33] The applicant was suspended from his employment, on or about 10 February 2015, save that he was required to assist APA with its investigations at the site of the incident.

[34] There is a dispute as to whether he was dismissed at a meeting he attended with Mr Winslett and Mr Pringle on 17 February 2015, as these witnesses attested, or over the phone in a call from Mr Winslett on that day, according to the applicant.

[35] The applicant also received a “Counselling and Warning Notice” after he was dismissed, which includes a statement that his employment will be terminated. The document was completed by Mr Pringle and dated 19 February 2015, although it referenced the interview conducted with the applicant on 10 February 2015. The respondent witnesses did not address this document and I have placed no weight upon it.

[36] The respondent closed its investigation on 13 April 2015 with the preparation of a final report in relation to the Beaufort Crescent incident. It contains no new information regarding the investigation but enlarges upon the actions taken arising from the incident, including removal of certain personnel and remedial steps to reinforce the appropriate testing procedures.

[37] The final comments in the report refer to the appointment of a compliance/safety specialist. This was a matter referred to in Mr Pringle’s investigation report on the Cardigan Avenue incident. In that report, also dated 13 April 2015, Mr Pringle alluded to the removal of certain employees as well as the appointment of a compliance/safety specialist, and stated that, “After a very short succession of 3 non-conformance breaches involving the Superintendent and the senior team leader it confirmed my decision to introduce personnel changes.” Elsewhere in the report, Mr Pringle referred to “… a lack of accountability between TL, Senior TL and Superintendent with reference to Auditing, Compliance and non-compliant outcome consequences/accountability.” 23

[38] Finally, I note that Mr Winslett stated that he became aware in May this year that further leaks had been identified in an area where Mr Penfold and the applicant were the Mains Replacement Program Manager and 2IC, respectively. The applicant categorically denied that his crew undertook this work. The respondent failed to produce any evidence in support of its allegation and did not challenge the applicant’s evidence that he did not undertake work at the site of the problems. 24

Submissions

Applicant

[39] The applicant submitted that he had done nothing wrong, but understood he had some responsibility as the Senior Team Leader in relation to the Beaufort Crescent incident. He referred to his unblemished record of service with the respondent prior to February 2015 and with previous employers. He stressed that if he was aware of a leak at Beaufort Crescent he would have undertaken the additional work to locate it and rectify it, as he had done on other jobs.

[40] As the respondent’s investigation did not conclude until after he was dismissed, he argued that he was denied procedural fairness and that his dismissal was premature.

[41] The applicant was particularly concerned that his dismissal was regarded as serious and wilful misconduct when he had not engaged in any deliberate or wilful conduct that was antagonistic to the employer’s interests and nor had he exhibited any inappropriate or criminal conduct that would justify summary dismissal.

[42] He argued that LB was given work on a civil site and JM continued to work on APA sites and that this was evidence that Bench did not have to dismiss him.

[43] The applicant has suffered financially as a result of his dismissal. He is the sole income earner supporting his wife and three children. Due to the characterisation of his dismissal as serious and wilful misconduct, his receipt of Centrelink benefits was delayed for a month. He subsequently obtained production work at the end of April 2015, albeit on reduced hours and a significantly reduced hourly rate of pay. 25 He is seeking compensation of an amount equal to three months’ pay and wants his dismissal to be changed to a resignation.

Respondent

[44] The respondent submitted that the applicant wilfully or recklessly did not follow the specified procedures and consequently exposed members of the community to potentially serious harm and caused damage to the respondent’s business. The applicant was aware of the procedures, had received appropriate training and held the necessary competencies. There was a valid reason for the dismissal.

[45] The respondent investigated the incident and reached conclusions which were open to it based on the information it had gathered, including the technical expertise of Mr Winslett and laboratory testing by APA. The applicant was afforded procedural fairness.

[46] The continuation of the applicant’s employment was beyond the respondent’s control. He was unable to perform work on APA contracts and there was no other work available that he was qualified to perform. JM was allowed on APA sites with APA approval and LB only worked for a short period on civil construction before his employment ceased. 26

Consideration

[47] I am satisfied that the applicant is a person protected from unfair dismissal and that the question that falls for determination in these proceedings is whether his dismissal was harsh, unjust or unreasonable. If so, then the Commission is required to consider whether a remedy is appropriate, and to consider what form that remedy should take.

[48] Sub-sections 387(a) to (h) of the Act identify eight criteria that the Commission must take into account in considering whether a dismissal is harsh, unjust or unreasonable:

“(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.”

Whether there was a valid reason for dismissal – s.387(a)

[49] In relation to the Beaufort Crescent incident, the allegation is that the test failed and that the applicant falsified the records to show that the pressure test had been passed, rather than undertake the extra work required to locate and repair the leak. I tend to the view that the applicant misinterpreted the test result based on his view that higher than normal ground temperature caused the flourocein to rise, however, there was no basis in the respondent’s procedures to justify such an approach.

[50] Based on the applicant’s employment record and his evidence before the Commission, I consider it unlikely that he deliberately falsified the results to avoid further work as the respondent contends. Nonetheless accurate testing was crucial on public health and safety grounds and the applicant failed to apply due diligence in the testing process. I am unable to conclude on the evidence before the Commission that circumstances existed at the time which could have resulted in a passed pressure test.

[51] The evidence in relation to the Cardigan Avenue incident is less compelling as to any fault on the part of the applicant. This much was acknowledged by Mr Winslett. There is no evidence of an investigation into the applicant’s explanation and no evidence put forward by the respondent which undermines the applicant’s evidence that the fitting failed at some stage after it was tested. To the extent that the respondent relied on this incident as a reason for dismissal, I determine that it had an insufficient basis for doing so.

[52] The issue as to the respondent’s ability to place the applicant on other work is difficult to assess on the evidence. It is clear that the respondent was bound by the APA directive to remove the applicant from APA sites. The respondent also conducted work in civil construction but submitted that it did not have any work available for which the applicant was qualified. I consider that to the extent that the respondent could have placed the applicant on civil construction work, any such work would have been of a short duration and I generally accept the respondent’s evidence in regard to available employment opportunities for the applicant. I conclude that there was a valid reason for dismissal based on the Beaufort Crescent incident.

Procedural fairness issues – ss.387(b), (c) and (d)

[53] In relation to the Beaufort Crescent incident, I conclude that the applicant was aware of the allegations against him and had the opportunity to provide a response. He did not argue to the contrary.

[54] The procedure adopted by the respondent was not without its defects, most notably the paucity of proper documentation provided to the applicant in relation to the allegations against him and the evidence it relied upon. It does not appear that the applicant had an opportunity to consider the results of the APA laboratory testing in advance of his dismissal.

[55] He was also denied the opportunity to have a support person present at the initial meeting because of the lack of notice of the meeting and advice as to the matters to be discussed, but I am satisfied that he had the opportunity after this meeting to obtain advice and/or to find a support person to accompany him to the further meeting he had with the respondent on 12 February 2015. To the extent that there were procedural defects in relation to this incident, I determine that they did not cause the process to miscarry. The final report prepared by the respondent contained no new information from the position that existed when the applicant was dismissed.

[56] As noted above, apart from an initial interview with the applicant in relation to the Cardigan Avenue incident there was no proper investigation undertaken in relation to his response or opportunity for the applicant to comment on the respondent’s conclusions.

Unsatisfactory performance – s.387(e)

[57] This is not a relevant matter in this case. While the applicant’s actions at Beaufort Crescent could be said to relate to his performance on the day, in my view the incident is more appropriately classified as relating to the applicant’s conduct on that day. Section 387(e) of the Act clearly relates to on-going performance issues and is directed to previous warnings and the employer’s management of performance issues. These matters are not relevant where the dismissal is based on an allegation of serious and wilful misconduct.

Size of the employer’s business and absence of HR expertise – ss.387(f) and (g)

[58] At the time of the incident Bench had a workforce of nearly 60 employees, although it has reduced by approximately two thirds since that time as a result of its suspension by APA. 27

[59] I am satisfied that the absence of a dedicated HR function which could guide the employer through an appropriate procedure with the applicant impacted on the procedures adopted by Bench. However, Bench was a medium sized business with $10m - $15m worth of contracts with APA. I am not inclined to view the size of the business as a matter which would weigh against an adverse finding on the procedures it adopted. As noted above however, I do not regard the defects in procedure as having been prejudicial to the applicant.

Any other matters – s.387(g)

[60] The applicant was summarily dismissed for serious and wilful misconduct. Serious misconduct is defined in Regulation 1.07 the Fair Work Regulations 2009 as follows:

“1.07 Meaning of serious misconduct

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

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

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.

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

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

(i) theft; or
(ii) fraud; or
(iii) assault;

(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.”

[61] In the context of the incident, sub-regulations (1) and (2) make it clear that the misconduct must have the quality that it causes “serious and imminent risk to the health or safety of another person” and that it is “wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment.” The element of wilfulness has long been recognised as an essential ingredient in serious misconduct. 28

[62] It is accepted by the respondent that the applicant’s actions were not malicious and that he had no intention of causing harm to the respondent or to members of the public. This is a proper concession.

[63] The element of wilfulness relates to the actions of an employee, the seriousness generally, but not exclusively, relates to the consequences of those actions. Wilful behaviour is to be viewed in the context of whether the actions were as a result of a genuine mistake or whether the action was deliberate, in the sense that the employee was fully cognisant of the actions taken. Where the actions are deliberate, the whole of the surrounding circumstances are relevant to an assessment of whether the actions constitute wilful misconduct. This includes the rationale for the employee’s decision making, the systems and supports provided by the employer, any mitigating factors and the prevailing circumstances at the time of the conduct.

[64] In this case the respondent’s procedures were clear and the importance of accurate pressure testing was understood. The applicant was an experienced field operative who had been appropriately trained. In circumstances where LB and SM both recognised problems with the pressure testing, the applicant was required to exercise the utmost diligence in his oversight of the next test. It was at best a serious lapse in judgement on his part in relation to a key aspect of his role as Senior Team Leader with the potential to cause serious injury or worse.

Conclusion

[65] As at the date of the hearing, the respondent remained suspended from performing work under the contracts it holds with APA. As a result, the workforce has been reduced by approximately two thirds since the applicant’s dismissal. The financial consequences for the business have been significant and, I observe, so has the emotional toll on Mr Pringle.

[66] I wish to make it clear that I do not regard the applicant as the sole cause of the loss of work with APA. The evidence indicates that other incidents arose which were not connected to work undertaken by the applicant, including an incident in which crew members suffered burn injuries. In addition, a further seven leaks were detected by APA in relation to work undertaken by Bench (which the respondent incorrectly blamed on the applicant). Beaufort Crescent was but one of the contributing factors leading to the respondent’s suspension by APA.

[67] It is also relevant that the respondent formed the view that there were problems with the oversight of work such that compliance and accountability requirements were not met. This may be characterised as a systemic failing however in my view it does not diminish the applicant’s responsibility, given the control he exercised over the work undertaken.

[68] I conclude that the decision of the respondent to dismiss the applicant should not be disturbed and the application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr N Zanker in person

Mr B Pringle for the respondent

Hearing details:

2015:

Adelaide

4 June

 1   Pringle at PN688

 2   At PN373-383; PN462-479

 3   Ex R1, attachment BP9

 4   Ex R1 attachment BP3

 5   Permission for the respondent to be represented by a lawyer was declined: [2015] FWC 3229, 11 May 2015

 6   Ex R1, attachment BP3

 7   Ex R3, attachment JW2

 8   Ex R1 attachment BP4, prepared directly after the meeting

 9   Ex R1 attachment BP5

 10   Ex R1 attachment BP8

 11   At PN252-253

 12   Ex R1 Attachment BP7

 13   Ex R3 at para 30

 14   Ex R3 at para 32; Ex R1 Attachments BP6; BP13

 15   Ex R3 at paras 33-38

 16   At PN1356-1362

 17   Ex A4

 18   PN635-636; PN747-749

 19   PN643-650

 20   Ex R3 Attachment JW8

 21   Another method of leak detection, used on above-ground assemblies – Ex R3, Attachment JW2

 22   Ex R1 at para 41 Mr Pringle’s account of what was said at the dismissal meeting indicates that only the Beaufort Crescent incident was raised

 23   Ex R3 Attachment JW8

 24   PN1272-1287

 25   Ex A2

 26   PN1241; PN1181

 27   At PN1401

 28   See for example Laws v London Chronicle (Indicator Newspaper) Ltd, [1959] 2 All ER 285 at 288

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