Simon Peto v Ausgrid Management Pty Ltd t/a Ausgrid

[2019] FWC 6691

[2019] FWC 6691

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 739—Dispute resolution

Simon Peto
v
Ausgrid Management Pty Ltd t/a Ausgrid
(C2019/3511)

DEPUTY PRESIDENT SAMS SYDNEY, 22 OCTOBER 2019

Alleged dispute about a matter arising under an enterprise agreement – electricity supply industry - serious safety incident – three employees alleged to be involved – conflicting accounts of events – all three employees receive same disciplinary outcome – one employee denies any responsibility and seeks removal of formal written warning – whether warning reasonable - management prerogative – shared responsibility of Work Team – failure to communicate effectively – Commission declines to intervene – dispute determined.

[1] Mr Simon Peto is employed to perform electrical wiring work for Ausgrid Management Pty Ltd (‘Ausgrid’) on its network throughout New South Wales. He is a qualified Lineworker (Power Worker B1) under the Ausgrid Management Pty Ltd Enterprise Agreement 2018 (the ‘Agreement’). He has worked for Ausgrid for 17 years. On 17 December 2018, Mr Peto was working in a five-person Team at a street in Sydney’s north-western suburbs following storm damage which brought down power lines in the street. Mr Peto, Mr Michael Hoban (‘Mick’) and Mr Marc Tarring (‘Marc’) (together, the ‘Work Team’) were working on a particular property, which I shall not identify, but will refer to hereafter as the ‘Residence’. Two other members of the Team were not directly involved on work at the Residence.

[2] At the end of the job at the Residence, and following the reconnection of the damaged cable, the Work Crew energised the cable. This led to a reverse polarity situation at the customer’s switchboard and installation. Reverse polarity results in any item within the installation, which is normally earthed, to become energised (‘live’). This can lead to an extremely dangerous situation in the customer’s premises, with the potential to cause death, injury and/or property damage.

[3] As a result of Ausgrid’s investigation of the incident, all three Work Team members received the following disciplinary action:

‘1. This letter serves as a formal warning and a copy of this letter will be recorded on your personnel file.

2. A Performance Improvement Plan (PIP) will be established for a period of six (6) months and will be subject to periodic review by your Field Supervisor. Failure to meet the required level of performance may lead to further disciplinary action and/or an extension of the PIP.

3. This incident will be noted in FY19 Mid-Year Performance Plan, and

4. You are to be involved in a safety campaign where you will participate in the making of a presentation to share the learnings of your incident with your peers across the Region.’

[4] On 6 June 2019, Mr Peto’s Union, the Communications, Electrical and Plumbing Union of Australia (‘CEPU’ or the ‘Union’) filed an application, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’), seeking to have the Fair Work Commission (the ‘Commission’) deal with a dispute under the Agreement. The substance of the dispute is straightforward - Mr Peto denies any culpability or responsibility for the incident on 17 December 2018 and seeks to have the formal warning issued to him withdrawn. The other two Work Team members have not sought to challenge the disciplinary action imposed on them. Presumably, they have accepted Ausgrid’s investigation, its conclusions and penalty. I understand the PIP required of them has long since expired, without further incident.

[5] As I apprehend it is common ground that the Commission is empowered by the Dispute Settlement Procedure (‘DSP’) at Cl 42 of the Agreement to determine the dispute, it is unnecessary to reproduce the terms of the DSP. No other jurisdictional objections were taken by Ausgrid as to my arbitration of the matter. However, in accordance with my usual practice, I convened a conference of the parties on 18 June 2019. As no settlement of the dispute was able to be reached, I issued directions for a hearing and listed the matter for 29 and 30 July 2019 (the hearing date on 29 July 2019 was subsequently vacated). At the hearing Mr D Austin, with Mr D Miller appeared for the Union and on behalf of Mr Peto. Ms A Perigo of Counsel appeared with Ms A Shields, Solicitor, Norton Rose Fulbright, for Ausgrid, with permission granted for the employer to be represented by a lawyer, pursuant to s 596 of the Act.

THE EVIDENCE

[6] Statement and oral evidence was adduced from Mr Peto and Mr Jeffrey Corcoran (Field Manager - Central Coast, Ausgrid). I summarise their evidence below.

Mr Simon Peto

[7] Mr Peto outlined his version of events when the Work Team were sent to the street of the Residence on 17 December 2018 as a result of a fallen tree bringing down power lines.

[8] Before commencing work, the employees signed onto a Hazards Assessment Conversation (‘HAC’) after having discussed it when arriving for the job that morning. The HAC is filed electronically on an iPad and uploaded to Ausgrid’s database. Mr Peto said there is no place in the HAC which states who is responsible for performing, or checking certain work for the day and it has never been the practice to do so. He said that generally, the roles of the Work Crew when disconnecting and reconnecting houses are understood by their position. He understood a Lineworker could do all work, except switching houses back on. They used to do ‘test lamps’ before switching customers back on, but now only electricians do the testing for RF11 - a procedure for testing connections to low voltage electricity networks. Substation Technicians and Customer Connection Technicians have electrical qualifications to perform RF11 testing, replacing fuses and switching houses back on.

[9] Mr Peto claimed that during the job, he had asked Mick to inspect the board in the Residence across the road from the pole he was working on further up the street. Mick was trained and qualified in RF11 and agreed to do so. During the morning, Mr Peto carried on his work of getting services restrung, hung and connected on the mains poles. Mr Dylan Rose (‘Dylan’), another Customer Connections Technician, and Marc went to other customers’ switchboards, one or two poles up from the Residence, to pull fuses and turn the houses off. Dylan was to perform testing at the boards. Mr Peto could clearly see them working.

[10] Mr Peto said the incident in question occurred in the mid-afternoon. When they got to the final pole, he pulled the fuses at a house opposite the Residence and checked another house to ensure its fuses had been pulled. When it was time to do work on the Residence, he asked Mick to go in and look after the board. Mr Peto said he was on an Elevated Work Platform (‘EWP’) at a height of five metres on the main pole on the opposite side of the street. Connections were to be made at three points – from the mains pole across the road to the lead in pole, then to the customer’s point of attachment on the house. Once these connections were made, the practice was for Mick to follow ‘lamping’ and RF11 procedures to confirm neutral and active phases before replacing switches. Mr Peto said he was not qualified to do the testing and connections work. This work requires an electrician’s license.

[11] Mr Peto said that Marc came over to the lead in pole on his own EWP. A 4 core conductive line was already run across the road. These had House Service Connectors (‘HSCs’) installed on the end to prevent any immediate connection and allow the person on the lead in pole to test safely. Marc undertook this work and gave him the all clear to pull it up, and connect it safely. Mr Peto ‘still lamped’ the tails before connecting the 4 core to the ABC mains at his pole and energising it back to Marc. This was his usual practice. After connecting them and they were all live, he advised Marc ‘they’re all live ready to connect when yous (sic) are ready’. Marc replied ‘No worries’.

[12] Mr Peto claimed that at this point, the line was connected to the lead in pole, but not to the house, so there was no risk of reverse polarity. He said his involvement had then ended. He descended from the EWP and started packing up for the next job. He did not know what happened next. However, he understood it was Mick’s responsibility to look after the meter board (turn off and pull fuses) and Marc’s responsibility to ‘lamp’ at the lead in pole.

[13] Mr Peto said that while he was getting ready to leave the job, he heard a conversation about smoke coming from the customer’s board at the Residence. He went to the point of attachment and saw Marc working on the lead in pole in the process of disconnecting the service. The customer told him that smoke was coming out of a wall inside and a phone charger had been ‘spat out’ from the wall. Mr Peto claimed he inspected the junction box and observed evidence of a possible short circuit, as the mains were black. An Emergency Services Operator (‘EMSO’) arrived. Mr Peto found out, on the way to another job in Galston, that the fuses at the Residence had not been removed, even though he understood they had been, and the house had been switched off prior to being connected by Marc. He had requested Mick to do so and saw him go into the premises.

[14] Mr Peto returned to the street of the Residence after the Galston job and explained his position to the Field Supervisor, Mr Edward Johnson. He claimed Mr Johnson told him that his role in the incident was limited and that he and Dylan would not be brought into it.

[15] It was Mr Peto’s further evidence that he had made a safe connection to a ‘dead’ line which was later connected by Marc. He understood from the Electrical Safety Rules (the ‘ES Rules’), that it is the responsibility of the person making a final connection to undertake checks to ensure isolations have been made, or fuses pulled, to prevent reverse polarity. He had followed the correct procedure for 17 years and believed Marc and Mick had the responsibility for ensuring correct connections and resetting the fuses. Mr Peto claimed the annual training provided by Ausgrid on changes to the ES Rules, altered the Rules every time.

[16] Mr Peto described the investigation by Ausgrid into the incident. On 19 December 2018, he attended an interview, with a support person. In attendance was his Field Supervisor, Mr Johnson, Mr Corcoran and Mr Daniel Polombi, Safety Lead. On 7 January 2019, Mr Peto received a letter alleging he had breached:

(a) the Code of Conduct;

(b) Electrical Safety Rules - rule 9.4.2;

(c) Rules We Live By - clause 1.4;

(d) Safe Work Method Statement OH013 - steps 3(c), (f) and (g); and

(e) Network Engineering Guidelines (‘NEG’) - SE17-02.

[17] Mr Peto responded to the allegations on 16 January 2019. He denied any breaches of policy or procedure and set out his version of events (as described earlier). Specifically, he had raised the conversation he had with Mick directing him to pull the fuses at the Residence. Ausgrid refused to provide him with Mick’s statement, any alternative views for him to comment on, or the investigation report. He claimed there was no thorough or proper investigation. He addressed each of the alleged breaches as follows:

Electrical Safety Rules

‘72. When I connected the cross-road line at the mains pole, the cross-road line terminated in a disconnected HCS at the lead-in pole. The lead-in pole was the customer’s terminal for the purpose of rule 9.4 of the Electrical Safety Rules. When I completed my part of the work, the service was left disconnected awaiting tests and connection by Mick and Marc.’

Rules We Live By

‘74. When I connected the cross-road one at the mains pole, I lamped and correctly [identified] the neutral and active phases. The connection I made was from the network to a disconnected line. I did not connect a live active to a neutral.

75. At no stage did I incur an uncontrolled discharge of electricity or contact with electricity.’

Safe Work Method Statement (‘SWMS’)

‘77. Step 3(c) of the Safe Work Method Statement OH013, at page 7, requires employees at the switchboard of a connection to “Lamp Out Board Pull Fuses Check phase rotation”. Step 3(c) applied to Mick, who was working on the board.

78. I do not have an electrical license and I am not qualified to do work on the customer’s board.

79. The risk control for step 3(c) is “Comply with Electrical Safety Rules”, and “Comply with TS 0620 Overhead Line Work”, which I did.

80. Step 3(f) of the Safe Work Method Statement OH013, at page 11, requires employees who make a final connection to test following the Electrical Safety Rules. The final connection was made by Marc and so the step did not apply to my work.

81. Step 3(g) of the Safe Work Method Statement OH013, at page 12, requires employees who replace fuses to first lamp out the Board and check phase rotation. The fuses were controlled by Mick who I asked to do the switches in [the Residence]. I am not qualified to perform tests on the customer’s board.

82. Steps 3(c) and 3(g) require communication between work groups and maintain site awareness. I had reason to believe that Mick was at the board and would follow the Electrical Safety Rules and Marc was making the final connection and would follow the Electrical Safety Rules.’

Network Engineering Guidelines SE17-02

‘85. By agreement with the workgroup, I was performing work at the “Distribution Mains”.

86. Marc was performing work on a lead-in pole outside the boundaries of the property and part of the Ausgrid Network, which would be the “Point of Common Coupling”. This was the agreed “final connection point”.

87. Mick was performing work at the switchboard which were connected to the point of supply and attachment by the consumers mains. Mick was the only one of the three of us who was qualified to work on the customer’s side of the network.

88. I was not an “authorised person” for NEG SE17-02 clause 6 as it relates to the switchboard or point of supply. I did not have the duty in relation to the final connection point. Clause 6 of NEG SE17-02 did not relate to the work I was performing.’

[18] Mr Peto described the effects on him of being stood down. He had not worked any rostered or emergency overtime for 5 months (250 hours) and lost on-call allowances and call out work. He believed his stand down was not part of the disciplinary outcome provided for under Ausgrid’s Fair and Just Culture Policy.

Mr Jeffrey Corcoran

[19] Mr Corcoran has been employed by Ausgrid since 2003. Four Field Supervisors report to him. The field-based teams have 7 to 10 employees. Mr Corcoran is a qualified electrician and has frequently performed work of the type the Work Team was involved in on 17 December 2018.

[20] Mr Corcoran annexed to his statement each of Ausgrid’s relevant safety policies and procedures, namely:

•  the Code of Conduct;

•  Electrical Safety Rules;

•  Rules We Live By;

•  Safe Work Method Statement (‘SWMS’); and

•  Network Engineering Guidelines (‘NEG’).

Mr Corcoran described the importance of these procedures as follows:

‘10. These safety procedures and requirements are particularly crucial when the work involves direct interface with the customer and the supply of electricity to their residence or premises. Work on electrical lines that the service [customers’] houses, when the lines connect directly to the premises, is one of our highest risk areas for potential harm to our customers. This is because service wires connect the customer’s property to Ausgrid’s low voltage network, and deliver electricity from our wires to the customer.

11. When power lines that operate in residential areas are damaged as a result of storms or for any other reason, it is Ausgrid’s responsibility to repair the power lines and restore the supply of electricity to the residential houses. This is different from if there were to be an electrical issue within a residential house where the resident may call on a private electrician to assist.’

[21] Mr Corcoran set out the role and responsibilities of work crews which usually number three to five individuals of relevant trades, who are deployed to repair and restore downed power lines. The first step is to have a HAC before each job. There is regular training and updates on the HAC process. Mr Peto, Marc and Mick had attended HAC training three weeks before the incident. Mr Corcoran described the purpose and importance of the HAC as follows:

‘14. The purpose of the HAC is to identify the relevant safety procedures and requirements for the repair work to be undertaken, in order to ensure a safe system of work is employed and full compliance with all of the Ausgrid Policies. Because service wire work requires field workers to work with wires that are active with electricity, it is absolutely vital that the work crew has a HAC prior to undertaking any service wire work. Importantly, as the type of work to be undertaken, environment and conditions vary from site-to-site, the HAC must thoroughly identify and manage site-specific risks to ensure customer safety. The HAC must also be communicated to any new visitors to the site by way of site induction.

15. Because of the risks associated with performing work on live wires, tasks must be undertaken in accordance with specific Ausgrid policies and procedures. As such, work crews must identify and note the applicable policies and procedures that they followed or will follow in order to undertake the work specified in the HAC. Typically, the crew will reference the relevant SWMS for the work in the HAC and, in turn, the first page of the SWMS refers to the relevant policies, procedures, guidelines and standards.’

[22] In addition, Mr Corcoran said that the work crews must continuously monitor and review the worksite to identify new or arising risks and react accordingly. The HAC is to be updated for that purpose. Communication with one another is critical in respect to any changes in conditions in which new risks might arise. Each employee has a personal iPad to log into the HAC and make changes as appropriate and to confirm they have read and understood the HAC. Mr Corcoran said in his experience, in order to ensure effective communications, work crew members will ask questions of each other about who is performing what particular task, so as to ensure no misunderstandings. Any breakdown in communications could have disastrous consequences.

[23] Mr Corcoran set out the meaning and effect of ‘reverse polarity’ and described it as one of the most dangerous situations that can occur (he understood this is what occurred in the incident on 17 December 2018). This is highlighted in the Electrical Safety Rule (9.4.2) which states:

‘When connecting a service line, you must be certain about the polarity. A service connected in reverse polarity is extremely dangerous. Left unnoticed, it is hazardous (potentially fatal) for the customer and can damage the premises’.

[24] Mr Corcoran also identified a key document in respect to ensuring safety of any job – the Safe Work Method Statement (‘SWMS’) - and its reference to the ‘Overhead Service Changeover’. This process details the requirements for testing the customer board, fuse disconnection/reconnection and checking the phasing.

[25] Mr Corcoran was advised of the incident by Mr Jobson at 6pm on the day and was told it involved a reverse polarity situation. He contacted his manager (Mr Willis) who instructed him to investigate the employees involved and their conduct. A person outside the region was appointed the Safety Lead to conduct the safety investigation (Mr Polombi). Initially, Mr Corcoran only interviewed Marc and Mick on 18 December 2018, together with an ETU representative. However, after interviewing them, it became apparent that they both independently had said they had conversations with Mr Peto which had led them to believe the switchboard to the Residence had been checked. Mr Peto was then interviewed with Mr Leroy from the Union.

[26] Mr Corcoran was aware that a signed HAC had been completed prior to the beginning of the work. The HAC mentions SWMS OH008, but did not reference SWMS-OH013 – Overhead Service Changeover; see [17] above. This failure meant there was no discussion amongst the Work Team in relation to the tasks outlined in SWMS OH013.

[27] Mr Corcoran observed that there was no official supervisor of the Work Team. However, this is not unusual. Nevertheless, it was plain from the information and the interviews that Mr Peto had exercised a level of control and involvement throughout the job, as he coordinated the work by directing Mick to inspect the board in the Residence and had requested Mick and Marc to obtain the EWP for Marc to use. Mr Corcoran made the following undisputed observations:

‘(a) At some point during the repair work, the fuses were not pulled from the switchboard of the Residence, as required by step 3c of the SWMS, meaning the supply of electricity had not been disconnected from the Residence. While reconnecting the wires, the work crew incorrectly connected active wires to neutral wires, contrary to step 3e of the SWMS.’

[28] As a result of the conflicting accounts of the communications between the Work Team, particularly about who was responsible for the disconnection to the Residence, Mr Corcoran could only infer that at different times, different employees were talking about different houses and assuming the Residence had been disconnected, when it had not. Accordingly, Mr Corcoran said he could not make a factual finding as to who had failed to disconnect the Residence, or determine what had been said to lead the Work Team to believe the disconnection had been done. Nevertheless, the physical act of disconnecting the Residence can be performed by anyone in the Work Team, including Lineworkers and Electricians. In fact, Mr Peto confirmed he had done so on a house opposite the Residence and checked another house opposite, to ensure the task was performed.

[29] Mr Corcoran formed the view that responsibility for ensuring disconnection was held by everyone in the Work Team. There was a collective responsibility for ensuring safe disconnection and reconnection. The task needs to be either specifically allocated during the HAC (which did not occur) or all Work Team members assume responsibility for it. The fact one person disconnects one house, does not mean they are necessarily responsible for disconnecting other houses. Accordingly, Mr Corcoran formed the view that there had been a gross breakdown in communication between the three Work Team members, such as they did not clearly identify which boards had been turned off, and those that had not. Mr Polombi’s investigation concluded the fuses had not been pulled from the Residence’s switchboard meaning the required steps in the SWMS were not taken.

[30] Mr Corcoran noted the very hazardous situation created in the Residence that could have resulted in the customer being electrocuted. The incident was therefore regarded as an extremely serious one, in which there was shared responsibility to ensure the relevant safety checks were implemented to prevent reverse polarity. As such, responsibility could not be apportioned to one employee.

[31] Both Mr Corcoran and Mr Polombi’s findings were provided to Mr Willis and after consultation with Human Resources, a letter was prepared to all three employees setting out the allegations against them; see [16] above. Mr Peto provided a response on 16 January 2019 in which he continued to deny any responsibility for the incident. In arriving at a disciplinary outcome, Mr Corcoran applied Ausgrid’s ‘Fair and Just’ decision making tool (annexed to his statement) and determined the same outcome was appropriate for each employee. It was not a simple error and the disciplinary outcome needed to reflect the gravity of the incident and its possible catastrophic outcome. However, he took account of no apparent recklessness or malice on the part of any of the employees. Nonetheless, they had breached SWMS, the ESR in relation to connection and disconnection of service lines and isolation methods and the Rules We Live By in reference to polarity tests and neutral identification.

[32] Mr Corcoran said that in light of the incident all three employees had been stood down. This was not unusual. It was standard practice so as to ensure an employee’s focus is not distracted. Distraction may lead to disastrous consequences. As a result of Mr Peto raising a dispute, he has not been reinstated to ‘live’ work while the dispute is ‘on foot’ for the same reasons as his stand down after the incident. While the DSP is followed, Mr Peto remains stood down from ‘live’ work.

[33] Mr Corcoran responded to Mr Peto’s statement as follows:

•  every team member is responsible for all tasks associated with the job. While some tasks are allocated, as Mr Peto himself acknowledged, this is left to the judgment and assessment of the Team at the time.

•  Mr Corcoran rejected Mr Peto’s claim that he was not authorised, or qualified to disconnect the switchboard at the Residence. He is qualified and able to do so and in fact, did disconnect the switchboard at other residences in the street. The reference to testing is not relevant to disconnection, or the tasks (3(c)) of the SWMS. An authorised person is only relevant to the final stage of testing which had not occurred in any event; but he is still able to, and in fact, did pull fuses and lamp out switchboards. There are no restrictions on Lineworkers in respect to these tasks.

•  Mr Peto claimed that it was his understanding that the person making the final connection must make the checks and ensure that isolations have been made or fuses pulled out. Mr Corcoran said that the ESR and Ausgrid policies are not so prescriptive. In fact, some jobs may take the whole day and a person who disconnects in the morning may not be the person who makes the final connection. Even if Mr Peto did not make the final connection, neither did anyone else because of failed communications. All of them were responsible for completing this task.

•  It was not disputed Mr Peto may have completed his tasks as he should have and made his connections safely. However, he was part of a team whose single purpose was to repair wires and restore power. This involved working together and ensuring each person knew what each other was doing to achieve a single outcome. They all failed to do so.

•  While there was no Supervisor for the job, it was clear Mr Peto maintained a level of oversight and control over the overall job; see [27] above.

•  Mr Peto’s involvement was not ended once he connected the lead in pole. On his own evidence, he took steps to attend the customer’s house when smoke was reported. He inspected the point of attachment, spoke to an EMSO and returned to the site after his next job.

•  It is not Ausgrid’s practice to publish the outcome of safety investigations to the workforce generally. The outcome is provided to management who may direct appropriate responses.

•  As to Mr Peto’s claim of overtime, Mr Corcoran observed that working overtime shifts is not guaranteed and EOIs are sought. Ausgrid will then select employees for overtime. Overtime is neither guaranteed nor consistently allocated to the same employees. Mr Peto continues to receive his standard salary and perform alternate duties commensurate with his substantive role. All other disciplinary outcomes are ‘on hold’ pending resolution of this dispute.

Mr Peto in reply

[34] Mr Peto continued to insist that:

•  Marc had performed work on the lead in pole, including an obligation to test for polarity;

•  Mick had performed work at the customer’s switchboard, including a duty to disconnect the conductor at the switchboard and test polarity; and

•  he had performed work across the road and he ‘lamp tested’ correctly.

[35] Mr Peto said all processes in the Rules We Live By were followed, including preparation of the HAC and a safety discussion. He claimed he told Mick to perform Step 3(c) in OHC13 at the switchboard and confirmed Marc would perform Step 3(f) at the lead in pole. They were both trained to perform these functions. Marc was responsible for making the final connection.

[36] Mr Peto believed that some jobs require more communication than others. He understood that the person making the final connection always communicates with the person at the switchboard (in this instance, neither of them were him). Mr Peto claimed it was agreed Marc would hang the road crossing at the lead in pole and he would pull the road crossing up at the mains pole and liven it back to him. Marc would then test and make the final connection.

[37] Mr Peto disputed Mr Corcoran’s statement when he said flow stops at the Residence, only by pulling fuses. Flow will still go to the customer’s earth, which may enliven taps and appliances, if reverse polarity happens. Mr Peto denied the other two members of the Work Team were some way up the road from the Residence. One was a Lineworker who was acting as his safety observer and he had been working with Marc nearby. Mr Peto denied telling Marc or Mick that he had checked the switchboard at the Residence. In fact, he told Mick to do so, and saw him enter the premises. He told Marc of this discussion.

[38] Mr Peto claimed it is not the purpose of the HAC to have in depth discussion of routine procedures. It involves discussion of hazards. It is not the practice to discuss who is responsible for each step in the SWMS. Allocation of tasks is discussed while the work is carried out, not during the HAC process. It was unnecessary to identify SWMS OH013 was established in conversations between the three of them, as the mains were rolled out.

[39] Mr Peto said he did not direct Mick to inspect boards across the road from the Residence as Dylan was working on them. Mr Peto denied that each of them had equal responsibilities on the day, as they each have different specialisations. Further, he was not coordinating the work, although he acknowledged asking Dylan to work on a board opposite the Residence and to work on a switchboard he had just worked on.

[40] Mr Peto denied that the supply had not been disconnected. Supply had been disconnected when the power line was brought down. He further denied connecting any active wires to neutral wires. Marc had made this connection. Mr Peto disagreed with Mr Corcoran’s description of how reverse polarities develop. What Mr Corcoran omitted was that Mick should have installed an ‘earth stake’ on the neural leading into the switchboard. Mr Peto said he did not inspect the switchboard, but inspected the consumer mains at the point of attachment.

[41] Mr Peto agreed he could turn off customer mains and pull fuses in an emergency, or when already de-energised - which is what he did across the road from the Residence. However, an electrician would normally perform RF11 testing.

[42] Mr Peto insisted that the ultimate responsibility for ensuring disconnection lies with the person making the final connection. This was Ausgrid’s practice. He strongly denied any breakdown in communication on his part. He was clear about what needed to be done and had made sure someone was doing it. Mr Peto believed his involvement was ‘expected behaviour’. He demonstrated the values and competencies of his role and the policies which applied and the established practice. It was not his role to check the work of a qualified electrician. He was not equally responsible for the incident, because he could not have performed the work from where he was located and had concluded his own work.

[43] Mr Peto claimed Mr Corcoran had incorrectly read the SWMS and misunderstood how a reverse polarity developed. He believed it was possible to identify who had breached 3(c) and 3(f) of the SWMS from where persons were working - and it was not him. Further, there was no obligation to follow 3(g) of the SWMS.

[44] Mr Peto said that on 17 December 2018, he had one conversation with his Supervisor, which went like the following:

‘Mr Peto: “What do you want to know about the incident from me? I can tell you what I know about the incident, what I [had] seen and what I heard.”

Ed: “That’s okay, you and Dylan won’t be dragged into it, because I’ve been told what your involvement was.”’

[45] As to his stand down, Mr Peto put that his welfare and state of mind was never assessed by Ausgrid and no one had sought to discuss this with him. He should not be prevented from working the full range of his duties. Mr Peto agreed he had contacted the EAP, but only to tell them he was frustrated by what had happened. He assured them his mental health was fine.

[46] Mr Peto did not deny all involvement in the matter; rather, his involvement was only to request Mick work on the switchboard at the Residence. Mr Peto stressed that the HAC does not include a section for assigning roles at a job. Tasks are allocated, or assumed in the course of understanding the work. Mr Peto said he did not disconnect the electricity for houses on the opposite side of the street, as they were already disconnected when the mains were brought down during the storm. He did not remove the neutral, install an ‘earth stake’, or ‘lamp out’ the disconnections. Dylan performed these tasks at these premises. It was not reasonable to say that all of them failed to complete the tasks, as he had no reason to believe Mick had not done so. He denied again that he was in control of the job. Mr Peto understood it was Ausgrid’s practice to publish outcomes of safety investigations thorough Be Safe Toolbox Talks. This did not happen in this instance.

[47] Mr Peto said it was incorrect that the task he had been doing since being stood down was commensurate with his substantive role and position. It had been ‘far inferior’ and ‘less skilled work’; mostly talking to consumers.

Oral evidence

Mr Peto

[48] In cross examination, Mr Peto was referred to the various Ausgrid safety policies attached to Mr Corcoran’s statement. He agreed he was familiar with the policies, understood them and appreciated their importance to ensure his own safety, and the safety of other employees and customers.

[49] Mr Peto described the HAC process which is required before the commencement of a job and then inputted into one employee’s iPad, which the other employees could access electronically. Changes can be made during the course of the job, as new risks arise, or are identified. Mr Peto agreed he had been trained as to the HAC and what is required. The HAC outlines the steps that need to be taken in each SWMS. However, he claimed the HAC does not set out the work required to be carried out. He agreed the OH013 document was missing in the HAC that day.

[50] Mr Peto said that there was no dedicated supervisor on 17 December 2018. He agreed each member of the Work Team were equal in terms of ensuring safety requirements and policies were adhered to. However, he believed each member of the Work Team had separate roles and responsibilities, as part of the overall job.

[51] Mr Peto was taken to the SWMS and OH013. Step 3(c) is the step which says ‘Lamp out board, pull fuses, check phase rotation’. He agreed this is the step where the main switches are pulled. However, he was not qualified to perform all the work and another worker completed the remainder of Step 3(c), as he was not able to disconnect the power, when it was ‘live’. He agreed he had pulled fuses from a house on the other side of the road, but those fuses were already de-energised. He claimed he was ‘not qualified or authorised to do the full step’. However, he can do parts of the process, if the line is already de-energised (which it was).

[52] Mr Peto acknowledged that as an Ausgrid employee, he is obliged to ensure that work is performed safely. However, he believed that if someone else does something outside the rules he is not aware of, he cannot be held responsible. He agreed the HAC outlines the SWMS and the Work Team discuss what is to be done. However, specific roles are not allocated in the HAC. He accepted that it was necessary to know what each person was doing, and that could only happen by discussing the job. However, this is not recorded in the HAC.

[53] Mr Peto said he could not comment on whether active wires were connected to live wires, because he did not make the connection. He could not comment on whether a reverse polarity situation occurred, which is what the investigation found. Nevertheless, he acknowledged there was a serious incident on 17 December 2018. He denied the incident occurred because of a lack of communication from him. He further denied directing other employees, and said ‘everyone else does’. He denied coordinating the work that day. He insisted that the person making the final connection is responsible for all the checking and ensuring the lines are safe. He cannot speak for what other people might do or not do.

[54] Mr Peto stated that there had been a discussion as to who would make the final connection, but he had not inquired as to whether it had been done. He denied operating under assumptions. It was the responsibility of the other two employees to make sure the correct procedures had been followed. He claimed his role had ceased by this point and he was preparing to go to another job. While agreeing he was part of a Work Team, the relevant conversations were, or should have been had by others and about which he was unaware. Mr Peto insisted there was no communication breakdown on his behalf and he had no responsibility for the incident.

[55] Mr Peto agreed he had received the allegations against him and had an opportunity to respond. He received the outcome on 2 January 2019. As to the loss of overtime, he accepted that overtime is not a guaranteed right, and employees work overtime when the Company needs work to be done, in overtime.

[56] Mr Peto acknowledged that one cannot make assumptions as whether or not wires are live or not and employees are trained to test whether wires are live. However, he claimed he was not technically qualified to test wires to a house. He accepted that in this case, it was necessary to isolate the Residence. He is able to pull the fuses and turn off the main switch, but only if it is already de-energised. This was part of the process, but not done on this occasion. Mr Peto said he had a discussion with Mick about doing so, but there was no discussion between the three of them, notwithstanding all of the Work Team are equally responsible for safety in the workplace. However, he denied they all had to know what each other was doing.

[57] In re-examination, Mr Peto was taken to 9.4.2 of the OH013 policy which reads:

‘When connecting a sensitive line you must be certain about the polarity.’

Mr Peto reiterated that Marc was responsible for the final connection. Mr Peto said that when he completed his connection he was certain about polarity after carrying out the lamping procedure and ensuring there was no live to neutral connection.

[58] Mr Peto said that the purpose of the SWMS is to outline the steps needed in regard to certain processes for a job. However, the person responsible for a particular step is not recorded on the HAC. Generally, it is discussed throughout the day and tasks are allocated based on authorisations and qualifications. Mr Peto claimed the final connection that day was done at the lead in pole where Marc was located. Mr Peto said that they never got to testing the final connection (Step (3)(g)) because of the circumstances that day.

[59] Mr Peto reaffirmed that one of the steps in the process is removing the customer’s mains neutral out of the block. However, you have to be a licensed electrician to work on a customer’s meter board. Although he had been trained in the process, he was not licensed.

Mr Corcoran

[60] Mr Corcoran confirmed that there is no field or space on the HAC, for the allocation of specific roles. There was also no space for details of the SWMS. Mr Corcoran understood the purpose of the HAC is as a platform for a thorough conversation of hazards, risks and control of what is about to take place. It is a lasting document which conveys some evidence of what occurred on a job. It is initiated at the beginning of the job. Mr Corcoran acknowledged the HAC is not exhaustive.

[61] Mr Corcoran was taken to the initial inquiry conducted by Mr Johnson soon after the incident. He agreed this incident report was not put to any employees during the investigation. Nevertheless, Mr Corcoran said he ‘formed the view that Mr Peto had energised a part of the connection, that would otherwise service and energise to the residents.’ He said there were numerous steps which needed to be taken and final testing to confirm that the Residence could be finally reenergised. There was a connection needed at the lead in poles, another at the point of attachment, then a final check.

[62] Mr Corcoran said that from the employees’ statements it was clear, that there were certain assumptions to the HAC’s assessment and sequencing. It was Mr Corcoran’s belief that the communication breakdown occurred through the failure of all three parties to assign or designate the responsibility for the disconnection at the Residence. Although Mr Corcoran had a reasonable belief the statements of the employees were the truth, they were nevertheless conflicting with each other. For this reason, he could not make a factual finding as to who was responsible.

[63] It was Mr Corcoran’s evidence that connecting a service line is never performed by an individual on their own. The task will always entail at least two persons, one of whom would be a safety observer. In the present matter, there were multiple connections which resulted in electricity being connected to the Residence.

[64] Mr Corcoran said that Rule 9.4.2 in ‘Connection & Disconnection of Service Lines’ is a ‘catch all’ rule and pertains to the final connection and various iterations up to that point. There are many points prior to that where reverse polarity can occur. Mr Corcoran explained that in this instance point of supply is at the network mains because the road crossing conductor was the conductor that was brought down. There was a subsequent connection at the lead in pole, because the service wires to the house were not affected by the storm damage.

[65] Mr Corcoran agreed that according to Steps 3, 4, 5, 7 and 8 of the Service Procedure, including the tests for polarity phase rotation and the neutral integrity test, it could not have been done at the switchboard, due to the storm damage and with the line down across the road. He believed that Steps 3, 5 & 8 should have been completed.

[66] Mr Corcoran added that there is currently a demarcation dispute over the role of the workers at the switchboard in which Ausgrid maintains that tests at the switchboard do not require a licensed electrician. Ausgrid continues to allow Lineworkers to disconnect at the point of attachment. It was Mr Corcoran’s position that Mr Peto could perform a full polarity test through a ‘lamp’ test, which he understood Mr Peto undertook. If there is more than one glow, it indicates something is wrong and this would require further investigation.

[67] As to his investigation, Mr Corcoran had made a factual finding of an unsafe situation, with the potential to cause damage or harm. However, direct responsibility could not be identified because of conflicting statements. In any event, the three persons involved had equal responsibility to ensure that all the relevant safety steps were taken prior to re-energising. He did not ask closed questions about which house was said to have its switchboard checked, and this led him to suspect that there was a breakdown in the understanding and responses, resulting in a failure to attend to the switchboard at the Residence. He did not accept that the SWMS and the ES Rules impose specific obligations on individuals. There must be communication to determine and confirm who is going to do what, otherwise there is a danger that parts of the process are not attended to. There is extensive training to ensure that despite the staff being autonomous, the HAC provides a platform for healthy discussion and an understanding of the roles between various staff members, who may mix with each other throughout the day.

SUBMISSIONS

For the Union

[68] In its written submissions, the Union set out the background to the dispute and the relevant jurisdictional provisions at s 739 of the Act, and the Agreement provisions, which I will not repeat.

[69] The Union disputed that the warning issued by the respondent was unwarranted on three grounds, including that it:

‘a) does not reasonably relate to actions of the applicant or circumstances within the control of the applicant;

b) is not consistent with Ausgrid’s Fair and Just Culture Policy; and

c) amounts to an unreasonable direction, outside the scope of the applicant’s duties.’

[70] In relation to the mains connection, the Union contended that Mr Peto acted consistently with the relevant Ausgrid policies and procedures when undertaking the work. The scope of his work was limited, as the connection for which he was responsible, was on a disconnected line, fitted with protections. The fact that the incident occurred was the result of the two other Ausgrid employees on site; both of whom had obligations to test and check the connections and controls, prior to making their connection. It could not be said that Mr Peto could be held responsible for work which fell outside of his agreed scope of work or he was not qualified to perform.

[71] With respect to the switchboard processes, the Union argued that Ausgrid, in its allegations put to Mr Peto, referred to a number of ‘irrelevant’ policies (including SWMS OH013 at 3(c) and 3(g), and NEG SE17-02, Service Connections Testing and Installation, section 6) which describe processes separate to those relating to testing and checking at a customer’s switchboard. Ausgrid could therefore not issue a warning relating to a failure to follow policies, which are not relevant to the conduct in question. Further, the Union submitted that due to Mr Peto’s level of qualification (Certificate III in Overhead Distribution), he was prohibited to perform electrical installation work, pursuant to the Electricity (Consumer Safety) Act 2004 (NSW) and the Home Building Act 1989 (NSW). Performing work beyond Mr Peto’s scope could therefore amount to unlawful conduct.

[72] After setting out the relevant terms in Ausgrid’s Fair and Just Culture Policy (cls 40.3.1, 40.5 and Appendix B), the Union submitted that Ausgrid had ‘unreasonably conflated’ the existence of a safety hazard, with Mr Peto engaging in ‘at risk behaviour’. Ausgrid had incorrectly attributed Mr Peto’s conduct as having created the risk, in violation of Ausgrid’s policies and procedure. It was the acts and omissions of the other two employees which caused the risk, not those of Mr Peto.

[73] While accepting that the offering of overtime is at the employer’s discretion, Mr Peto has suffered a significant reduction in his income by being directed to alternative work. Further, if the warning is allowed to stand it may have adverse implications for his performance review and any future redundancy decisions of Ausgrid.

For Ausgrid

[74] In response, Ausgrid also set out the background to the dispute and the relevant jurisdictional and Agreement provisions. It submitted that its investigation into the incident was in accordance with the DSP, pursuant to clause 42 of the Agreement. It was put that given the severity of reverse polarity, Mr Corcoran could have opted for a harsher penalty; however, his decision to issue a formal warning (as opposed to an even more serious penalty) was largely due to a lack of malice or recklessness on the part of Mr Peto, and the other two employees, which led to the incident. Rather, the investigation found that the incident occurred due to a ‘gross breakdown in communication between Mr Peto and the other two employees in the work crew.’

[75] Although Ausgrid agreed that the Commission has jurisdiction to deal with this dispute, it nevertheless submitted that the Commission would not lightly intervene in Ausgrid’s decision-making in this instance, as Mr Peto had failed to show ‘strong and compelling’ reasons to satisfy the Commission making a determination to overturn, or set aside the formal warning it has issued. Counsel referred to a number of Full Bench decisions of this Commission, and the Australian Conciliation and Arbitration Commission (as the Commission was then styled). It was submitted that the facts and circumstances of this case would tell against the Commission intervening in the lawful business management and managerial prerogatives of Ausgrid; see: Australian Federation of Locomotive Enginemen v State Rail Authority (1984) 295 CAR 188 (‘XPT Case’); Lend Lease Project Management and Construction (Australia) Pty Limited v Construction, Forestry, Mining and Energy Union[2015] FWCFB 1889; Construction, Forestry Mining and Energy Union v HWE Mining Pty Ltd (2011) 214 IR 194; and Construction, Forestry, Mining and Energy Union v MSS Strategic Medical Pty Ltd; MSS Security Pty Ltd [2015] FWC 6937. Ausgrid sought to have the application dismissed. The warning to Mr Peto should stand and the other disciplinary outcomes be implemented.

CONSIDERATION

[76] At its core, what the Commission is being asked to do in this case is to find that the disciplinary action proposed to be taken by Ausgrid against Mr Peto in respect to the incident on 17 December 2018, is unreasonable. With this in mind, I turn to consider the term ‘unreasonable’, noting that in this context, Ausgrid maintains that the Commission would not lightly interfere with a disciplinary outcome which was within management’s prerogative and exercised in the ordinary course of managing its business, particularly when ensuring the safety of its employees and the public. Reliance was had on the oft quoted case, shortly titled the ‘XPT Case’. In that case, the Full Bench of the Australian Conciliation and Arbitration Commission said at page 191:

‘The principles which the Commission should apply in circumstances such as those before us have been the subject of a number of submissions to us and reference to a number of cases. The main case relied upon by the State Rail Authority is the decision of Coldham J in the Airline Hostesses’ Case. In that decision Coldham J applied the test whether or notthe work asked to be done was “... unjust ... unreasonable, harsh or oppressive”. In adopting this test his Honour referred to a decision of Wright J in an appeal under the Public Service Arbitration Act. In that case Wright J said “... this Commission, and the Arbitration Court before it, have throughout their existence acknowledged the right of an employer to manage and regulate his own business, subject to the protection of his employees from injustice or unreasonable demands”. In that case not only did Wright J use that expression but Williams and Franki JJ in their separate decision referred to “... the right of an employer to manage and regulate his own business, unless in doing so he imposes unjust or unreasonable demands upon his employees” and said: “This approach has been accepted by the Commission and the Arbitration Court since the Conciliation and Arbitration Act became operative and has been reiterated from time to time since then.” It is not clear why Coldham J added the words “harsh” and “oppressive”. It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.’ (my emphasis)

[77] In my view, the ‘XPT’ principle has stood the test of time and remains the authoritative guide for determining whether the Commission might intervene to correct an unreasonable act or direction by an employer, where such act or direction is objectively unreasonable, within the context of the employment relationship; see also: Lend Lease Project Management and Construction (Australia) Pty Limited v Construction, Forestry, Mining and Energy Union [2015] FWCFB 1889 and Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited (2011) 214 IR 194. I note at this point there is no suggestion that Ausgrid’s disciplinary outcome was unlawful. Accordingly, this characterisation can be put aside.

[78] It is fair to say that the term ‘reasonable’, and its antonym ‘unreasonable’, are probably the most frequently argued terms in the industrial relations lexicon. That this is so, no doubt emanates from the long-held principle, which has underpinned the history of industrial law in Australia, based on the other frequently invoked notion of ‘fairness’.

[79] The test of whether a management direction is reasonable or unreasonable was explained in King v Catholic Education Office Diocese of Parramatta t/a Catholic Education Diocese of Parramatta[2014] FWCFB 2194. In that case, the Full Bench of the Commission said at [26]:

‘[26] It is well established that an employee has an obligation, implied by law, to comply with the lawful and reasonable directions of his or her employer. The circumstances in which an employer’s direction will be lawful were described by Dixon J in The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan in the following terms:

“If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.”’ (endnote omitted)

[80] In Briggs v AWH Pty Ltd[2013] FWCFB 3316 the Full Bench of the Commission considered the test of reasonableness of an employer’s direction and also referred to The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan (1938) 60 CLR 601 at 622. At [8] the Full Bench said:

‘[8] The determination of whether an employer’s direction was a reasonable one (there being, as earlier stated, no contest in this case that AWH’s direction was lawful) does not involve an abstract or unconfined assessment as to the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties. The proper approach to the task is that identified by Dixon J in The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan in the following terms:

“But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.” (endnote omitted)

[81] Perhaps a useful layperson’s summary definition is to be found in Anon v Federal Commissioner of Taxation [1949] 78 CLR at 360 in which Dixon J, although in a slightly different context, aptly described ‘unreasonableness’ as:

‘a conclusion which may be applied to a decision which lacks an evident and intelligible justification’.

[82] To complete the picture, the definition of ‘hardship’ as defined in the Macquarie Dictionary (5th ed) is:

1. a condition that bears hard upon one; severe toil, trial, oppression, or need.

2. an instance of this; something hard to bear.

[83] In DP World Sydney Ltd v Lambley [2012] FWAFB 4810, the Full Bench of the Commission, albeit in an appeal from an unfair dismissal decision said at [26]:

‘[26] … Different employers may approach a misconduct matter differently and take different disciplinary actions. A tribunal member determining whether a dismissal is harsh, unjust or unreasonable does not stand in the shoes of the employer and determine what action they would take in the circumstances. Only if the employer’s disciplinary actions are judged to lie outside the description of a reasonable and just response to the relevant conduct and are disproportionate, should a finding of unreasonableness or injustice be made.’ (my emphasis)

[84] Mr Austin criticised Mr Corcoran for not making a positive finding as to the respective culpability of the three employees directly involved in the incident. I do not accept this criticism for a number of reasons.

[85] Mr Corcoran had three conflicting and irreconcilable statements, particularly concerning whether Mr Peto had asked Mick to attend to the Residence’s switchboard. Mr Corcoran said he had no reason to disbelieve any of them. Moreover, there was not one connection or disconnection which could have caused the reverse polarity. In the absence of knowing who was responsible for what step in the process and because of the conflicting statements, he could not make a finding of culpability against one or another of the Work Team.

[86] Mr Corcoran was left with the unenviable task of applying the only practical solution in circumstances where it was accepted that all three employees were acting as part of a Team and whose combined actions, or inactions, resulted in a failure to communicate which led to the incident. Mr Corcoran’s task was not to undertake some quasi legal inquiry to pinpoint actual guilt or culpability. He did the best he could with the information he had before him; not unlike other workplace incidents, based on ‘word on word’ evidence, without witnesses or corroborative evidence, such as when two persons are involved in a physical fight in the workplace where each participant blames the other, and there are no witnesses or CCTV footage.

[87] Ultimately, of course, this Commission is examining all of the evidence provided by both parties in a properly conducted formal review. In my view, Mr Peto tended to be an overly cautious witness who was careful not to answer questions which might point to some level of culpability, or at the very least, some shared responsibility. For example, he gave evidence that he asked Mick and Marc to do certain tasks, but then claimed he was not coordinating the work. While I accept that there was no Supervisor in charge of the job, this is not uncommon. However, it seems to me that from his own evidence, Mr Peto took on some responsibility for directing others to do certain work.

[88] The problem arose that again, on his own evidence, Mr Peto made assumptions about the others having done certain tasks, but he did not check to establish if the task had been done. One cannot take responsibility for directly asking someone to do something and then not check if it has been done, by at least talking to that person. Mr Peto claimed he understood Marc had made the final connection, because he had understood this was his responsibility. However, he did not check whether he had. This was an assumption which had serious consequences.

[89] The evidence makes clear that in the circumstances faced that day and which are commonly faced for this type of work, there must be a high level of communication and understanding of who performs what task, or step in the process. If a failure occurs in this respect, it seems to me it is only logical that all members of the Team have a shared responsibility. Shared responsibility for carrying out a job safely must also mean a shared understanding that not only are certain aspects of the job allocated, but that the work is done. In such safety critical work, assumptions as to who had done what in respect to vital safety checks, is extremely risky and could have catastrophic consequences.

[90] It is immaterial that Mr Peto did not make the offending connection. It was incumbent on him and the other two employees, to ensure all the disconnections and reconnections were carried out safely, according to the ES Rules and the SWMS. I do not accept Mr Peto’s claims that he was not authorised to undertake the switchboard work. Mr Peto’s view is not accepted by Ausgrid and his evidence to the contrary was not assisted by him actually having taken such steps at the switchboards of other residences across the road. His belief that he could do so only if the connection had been de-energised, does not make sense.

[91] I also do not accept the Union’s strictly literal interpretation of the word ‘you’ in Rule 9.4.2 of the Electrical Safety Rules, as meaning one person. The word ‘you’ can have both a singular and plural application e.g. ‘Will all of you sit down’. In any event, the practice is that two persons are always required (sometimes as a safety lookout), and in some cases, the person’s role may change partway through a job where there are multiple connections. It must follow that the word ‘you’ in Rule 9.4.2 of the ESR, does not mean a single person.

[92] I agree with Mr Austin that the acceptance of Mr Hoban and Mr Tarring of their disciplinary outcomes is not determinative of whether Mr Peto’s disciplinary outcome is unreasonable. However, I cannot ignore the reality of a situation where if one accepts the Work Team had a shared responsibility for the incident, that should Mr Peto’s case succeed, then it would follow that the completed disciplinary outcomes for Mr Hoban and Mr Tarring should also be reviewed – a bit like ‘unscrambling the egg’. Instead of one disgruntled member, Mr Austin might then have two others.

[93] While I accept that Mr Peto has an otherwise unblemished record and he seeks to overturn what he believes to be an injustice, the reality is the outcome for him (and the other two employees) might have been more severe, and likely would have been, had an injury, or God forbid, a fatality had occurred. Mr Peto has been assured that the incident did not adversely impact on his midyear performance review and therefore his concerns as to any residual damage to his career are unfounded.

[94] In my view, the disciplinary action proposed for Mr Peto is not unreasonable. The proposed disciplinary outcome does not ‘lack an evident and intelligible justification’.

[95] I recommend Mr Peto accept the disciplinary outcome and undertake the Performance Improvement Plan and the safety training. However, I also recommend Ausgrid considers removing the formal warning from Mr Peto’s file after two years of unblemished service, and might also consider a similar outcome for Mr Hoban and Mr Tarring. The dispute is concluded on this basis.

DEPUTY PRESIDENT

Appearances:

Mr D Austin and Mr D Miller for the Union on behalf of the applicant.

Ms A Perigo of Counsel and Ms A Shields, Solicitor, Norton Rose Fulbright, for the respondent.

Hearing details:

2019.

Sydney:

30 July.

Printed by authority of the Commonwealth Government Printer

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