| [2022] FWC 1522 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Aaron Paterson
v
Electricity Networks Corporation T/A Western Power
(U2022/694)
DEPUTY PRESIDENT BINET |
PERTH, 21 OCTOBER 2022 |
Application for an unfair dismissal remedy
[1] On 12 January 2022, Mr Aaron Paterson (Mr Paterson) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by the Electricity Networks Corporation trading as Western Power (Western Power).
[2] At the time of his dismissal Mr Paterson had been employed by Western Power for 12 years. He was dismissed after an internal investigation into an incident in which a customer received an electric shock after a Western Power crew conducted repair work on distribution lines that provided power to the customer’s home (Incident).
[3] On 13 May 2021, Western Power filed a Form F3 - Employer’s response to unfair dismissal application stating that it had no jurisdictional objections to the Application.
[4] On 24 January 2022, the parties participated in a conciliation conference. The matters in dispute could not be resolved.
[5] Taking into account the parties wishes and circumstances, a Hearing, rather than a Determinative Conference, was determined to be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a Hearing in Perth on 16, 17 and 30 June 2022 (Hearing).
[6] Directions for the filing of materials in advance of the Hearing were issued to the parties on 27 April 2022 and amended on 16 May 2022 and 24 May 2022 (Directions).
[7] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.1
[8] Both parties sought permission to be represented at the Hearing.
[9] Having considered the submissions of the parties, leave was granted to both parties to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.
[10] At the Hearing, Mr Paterson was represented by Mr Armen Aghazarian an Industrial Officer employed by the Electrical Trades Union of Australia (CEPU) and Western Power was represented by Mr Rayne Wade of Ashurst.
[11] The Directions required the parties to file their witness evidence in chief in advance of the Hearing.
[12] In accordance with the Directions, Mr Paterson filed a witness statement setting out his own evidence in chief. 2 He subsequently filed a Reply Witness Statement.
[13] At the Hearing Mr Paterson gave further oral evidence and was cross examined by Mr Wade.
[14] In accordance with the Directions, Western Power filed witness statements setting out the evidence in chief of the following witnesses:
a. Mr Terry McMaster – Operations Business Partner, Safety, Environment, Quality and Training (Mr McMaster) 3
b. Mr Brett Hovingh – Head of Operational Maintenance (Mr Hovingh)
c. Mr Colin Jones – A1 Team Coordinator based at the Bridgetown Depot (Mr Jones).
[15] Mr McMaster was tasked with investigating the Incident which led to Mr Paterson’s dismissal. Mr Hovingh was the decision maker charged with deciding whether Mr Paterson’s employment should be terminated. Mr Jones was part of the Western Power crew tasked with responding to the fault which ultimately led to the Incident.
[16] All of the Western Power witnesses gave further oral evidence at the Hearing and were cross examined by Mr Aghazarian.
[17] The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties prior to the Hearing date (DCB). The DCB was admitted at the Hearing as an exhibit and marked Exhibit DCB1 and Exhibit DCB2.
[18] The following exibits were also admitted at the Hearing:
• Vehicle History Report for WPC 119362 (Exhibit A1)
• Vehicle History Report for WPC 673 (Exhibit A2)
• Vehicle History Report for WPC 594 (Exhibit A3)
• Vehicle History Report for WPC 1197 (Exhibit A4).
[19] Final written submissions were filed on behalf of Mr Paterson on 21 July 2022. Final written submissions were filed by Western Power on 4 August 2022.
[20] In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.
[21] Western Power is a constitutional corporation employing in excess of 3,000 employees. 4
[22] Mr Paterson was born on 30 September 1971. 5 He commenced employment with Western Power on 11 May 2009 as a trainee Lineworker. He qualified as a Lineworker on 20 September 2012.6
[23] During his employment Mr Paterson was not subject to any disciplinary action related to his conduct or performance. 7
[24] His annual remuneration at the time of his dismissal was $101,709. 8
[25] At the time of the incident which led to his dismissal the Western Power and CEPU Enterprise Agreement 2017 (Agreement) applied to his employment 9 and he was bound to comply with the:
a. the Code of Conduct (Code);
b. the Safety, Health and Environment Management Standard (SHE Standard);
c. the Electrical Safety System Rules (ESSR); and
d. all relevant safety procedures and work instructions.
[26] The events which led to Mr Paterson’s dismissal occurred on 22 October 2022.
[27] On that day Mr Paterson, Mr Ben Asplin (another Lineworker) (Mr Asplin) and Mr Jones arrived at work at the Bridgetown Depot at around 7:00am. At around 8:21am Mr Patterson attended his first fault job for the day with Mr Asplin. 10
[28] At around 10:50am Mr Paterson and Mr Asplin received a ‘no power’ fault job (INC#230741-U). At 11:11am they received another fault job for a wire down at the same location (#230811-U). Mr Paterson and Mr Asplin left Manjimup separately to meet at the fault location. 11
[29] For the purposes of the ESSR Mr Paterson was the site coordinator (being the person in control of the Site), switching operator, issuing officer and the recipient-in-charge. 12
[30] A tree had fallen across a single-phase high voltage spurline which caused the high voltage conductor (HV Conductor) to break and the high voltage bushing of the transformer at pole S818569 to become damaged. The tree came to rest across the earth return wire and the active and neutral of the low voltage overhead lines. 13
[31] Mr Paterson says he arrived at the junction of Balbarrup and Fernhill Road at about 11:25am 14 (according to the telemetric data he arrived at 11:45am) and observed: 15
a. the high voltage drop out fuse (HV DOF) was out at Pole S816482 on Balbarrup Rd (DOF Site); and
b. the HV Conductor along Fernhill Road was down on the ground (Fault Site).
[32] Mr Asplin says he arrived at the fault location around 11:35am (the telemetric data suggests that he arrived around 12 noon) 16. Mr Paterson briefed Mr Asplin and asked that he protect the wire while Mr Paterson cleared some branches to allow access. Mr Asplin and Mr Paterson then made the DOF Site and the Fault Site safe and restricted access using their vehicles. 17
[33] Mr Paterson then prepared a de-energised Workplace Risk Assessment Plan (WRAP). Both Mr Paterson and Mr Asplin signed on to the WRAP. 18 The WRAP documents the risk assessments undertaken in the course of completing a job.19
[34] Mr Paterson left Mr Asplin and moved away from the Fault Site to somewhere with better reception so he could make some phone calls. According to Mr Paterson, connectivity for his Toughpad was inconsistent at the DOF Site and telephone reception was poor. 20
[35] Mr Paterson called Mr Ray Deall the Field Supervisor (Mr Deall) and requested that a crane be sent to the Fault Site to assist with the removal of the fallen tree which had broken the high voltage (HV) wires and was now resting on the low voltage (LV) wires. 21
[36] At around 12:55, Mr Rene Mallari (Mr Mallari) arrived at the Fault Site, dropped off the crane (WPC 415) and then left the Fault Site. 22
[37] Mr Paterson says that at around 13:13, switching program F21-23881-U was issued while he drove back down the hill to the DOF Site. Mr Paterson says he confirmed that the DOF was already out and that the pole had been danger tagged. Mr Paterson says that once he had arrived back to the DOF Site he instructed and observed Mr Asplin put up the safety equipment from his ute. 23 Mr Paterson says that Mr Asplin signed onto the EAP and installed a working earth under his direction.24
[38] The telemetrics data suggests that Mr Paterson moved to a location about 2.4km from the incident site at 13:09 and that it was from this location that Mr Paterson 25
a. At around 13:15 sought permission from Network Operations (NOCC) to issue the Electrical Access Permit (EAP);
b. contacted Mr Asplin on the two-way radio and requested that Mr Asplin apply the programmed earth;
c. told the NOCC that the programmed earth had been applied and the relevant pole tagged with a "Danger Tag" upon receiving confirmation from Mr Asplin that the programmed earth had been applied, but without sighting the application of the programmed earth;
d. received permission from Western Power's NOCC to issue the EAP; and
e. at around 13:16 issued the EAP and signed on as the Recipient in Charge (RIC); and
f. returned to the site at 13:25pm.
[39] By this point, the tree had been partially removed from the road to allow access for vehicles, but it had not been fully removed. Once the vehicles were in place, Mr Paterson prepared to remove the tree from the mains. As he was preparing, he noticed that the EWP did not have enough reach. 26 At around 13:38 and while at the Fault Site, Mr Paterson called another Lineworker Mr Alberto Jasareno (Mr Jasareno) to arrange for him to bring an EWP to site to assist with the removal of the tree.
[40] Mr Paterson documented in the EAP that the purpose of the EAP was to work on 12.7Kv overhead mains, remove a tree and repair a broken wire however at around 13:30, Mr Paterson noticed that the high voltage bushing on the Transformer was damaged. At around 13:40 and Mr Paterson called Mr Deall and asked for a replacement transformer to be sent to the Fault Site. 27
[41] Mr Paterson did not amend the scope of work in the EAP or advise NOCC of the change in scope of work to include the replacement of the transfer. 28
[42] At around 14:00, another Lineworker, Mr Ricardo Mabalhin (Mr Mabalhin) arrived at the Fault Site and signed onto the WRAP and EAP. Mr Jasareno also arrived at the Fault Site at this time with the large EWP (WPC 1000) and signed onto the WRAP and EAP. 29 Mr Mallari left the Fault Site to return to the Depot with crane WPC 293.30
[43] At around 14:20, another Lineworker, Mr Dylan Tietze (Mr Tietze) arrived at the Fault Site and signed onto the WRAP and EAP. 31
[44] At around 14:30, Mr Paterson commenced the removal of the fallen tree from the conductors. At around 15:00 and once the tree was cleared away to a point it was no longer impeding or fouling the wires, Mr Asplin repaired the broken HV conductor. 32
[45] Also, at around 15:00, another Lineworker Mr John Doherty (Mr Doherty) arrived at the Fault Site in a truck (WPC 2245) with the replacement transformer in a trailer (WPC 1519). Mr Doherty did not sign onto the WRAP or EAP and very quickly left after dropping off the transformer. 33
[46] Between 15:30hrs and 15:40hrs Mr Tietze left site in vehicle WPC 1057. 34
[47] Mr Paterson did not know at the time that the transformer was not commissioned and admits that he didn’t think to check. It was only once he went to close the job off and fill the data sheets out on the Toughpad electronically that he realised no one had given him that data.35
[48] It was getting close to the end of the shift by this time and Mr Asplin was keen to leave the Fault Site upon completion of his shift. At around 15:40, Mr Paterson contacted the on-call Team Coordinator Mr Jones. Mr Jones had completed his shift at 3.50pm but had offered to keep working on an ‘on call’ basis. The on-call crew for that evening was Mr Jones and another Lineworker Mr Dean McCallum (Mr McCallum). 36 Mr Jones was at that time dealing with minor faults in the Bridgetown area but arrangements were made for McCallum to go to the fault site.37
[49] At around 15:45, Mr Paterson asked Mr Asplin to remove the old transformer and land the new transformer on the pole prior to him leaving the Fault Site so that the crane could be released from site to return to the Depot. Mr Asplin agreed, however he insisted that the after-hours crew should replace the transformer and that he could not stay to help. Mr Paterson called Mr Jones to discuss this with him. Mr Jones told Mr Paterson that he and Mr McCallum were dealing with other faults but would be there as soon as they could. 38
[50] After finishing the call, Mr Paterson told Mr Asplin that the on-call crew would be on their way soon, and once he and Mr Paterson had hung the new transformer Mr Asplin could take the crane home, assuming Mr Mabalhin would stay to assist Mr Paterson. Mr Paterson then asked Mr Mabalhin if he could stay and help, but Mr Mabalhin responded that he wanted to go home as well. 39
[51] Mr Asplin started work on removing the old transformer. Mr Asplin did not apply coloured tape or markers to either the active or neutral and the LV TX taps were not traced back to the OH line. Mr Asplin then removed the old transformer by cutting it away. 40
[52] After Mr Asplin had removed the old transformer, he came down and told Mr Paterson that he wanted to leave. Mr Paterson asked if Mr Asplin could at least hang the new transformer up before he left. Mr Paterson explained to Mr Asplin that if he left the job at this point, they would have no way to put the new transformer on the pole. 41
[53] Mr Paterson eventually convinced Mr Asplin and Mr Mabalhin to remain on site until the new transformer was hung up. 42
[54] By about 16:15, the old transformer had been removed and the new transformer had been landed on the pole ready to be connected. Mr Mabalhin left the Fault Site at 16:20. 43
[55] At between 16:20-16:43, Mr Asplin left the Fault Site in Mr Paterson’s ute (WPC 1197). 44
[56] No detailed handover occurred between Mr Asplin and Mr Paterson before Mr Asplin’s departure. 45
[57] Mr Paterson was alone at the Fault Site for a short period of time after that. 46
[58] At about 16:30, Mr Paterson started preparing the materials required for the connection of the new transformer and checked the wiring diagram for connecting the transformer on his Toughpad. 47
[59] Mr McCallum arrived at the Fault Site at 16:43, signed onto the WRAP and the EAP, and prepared to assist Mr Paterson with the connection of the new transformer. 48
[60] Between 17:10 and 17:15hrs Mr Paterson went up in the EWP and connected the new transformer. Mr Paterson: 49
a. repositioned the LV tails from their current connection point to the other side of the pole to enable them to reach the transformer connections;
b. installed the flowline fuse;
c. connected the active tail to the flowline fuse;
d. connected the other end to the paddock side OH LV conductor;
e. connected the neutral tail to the neutral connection point on the transformer and the roadside OH LV conductor; and
f. connected the HV tap from the TX to the HV OH line.
[61] Mr Paterson says that he started with the paddock side tap and noticed that it was not fully ribbed, which confirmed to him that it was the phase conductor that side. At that time, it was getting dark, but Mr Paterson says that he confirmed that paddock side was phase because: 50
a. it was a phase tap
b. the roadside 16mm˛ tap had multiple ribs; and
c. roadside at the source was standard neutral position.
[62] There were no tags or markers on the conductors. Before connecting the conductors to the transformer, Mr Paterson did not trace the low voltage network to confirm the position of the neutral low voltage overhead open wire before he wired the new transformer at the relevant pole. Instead, he assumed that the neutral low voltage overhead wire was on the road-side of the new transformer. 51
[63] Mr Paterson could have ascertained the position of the neutral conductor on the pole through a visual check of the low voltage network by walking 300 metres (west) or 100 metre (east) from the pole (where he was wiring the transformer) to two other poles where he would have seen neutral tags or at least identified the neutral conductor. 52
[64] Mr Paterson says that he called on Mr McCallum to check the work and he confirmed it all looked good. Mr Paterson says that he then rechecked his work and cross checked the diagram on the depot pack. 53
[65] Mr Paterson says that:
a. at 18:50 he removed the working earth and LV shorts. Mr Paterson says that at this time connectivity on his Toughpad was good and he was able to take all the steps while communicating with NOCC, and without leaving the DOF Site. 54
b. At about 19:04 he cancelled the EAP with Network Operations. 55
c. At around 19:06 Mr Paterson instructed Mr McCallum to remove the program earth. 56
d. At around 19:07 Mr McCallum installed the HV DOF at pole S816482 under Mr Paterson’s direction. Mr Paterson then went up to the transformer pole to install the LV fuse and check the transformer volts. 57
e. At 19:06 he sought and at 19:07 he was granted authority by NOCC to reenergise the network.
f. At around 19:15, Mr McCallum left the DOF site to return to Bridgetown depot. 58
g. At around this time, Mr Jones finally arrived on the DOF site.
h. Mr Paterson says that by the time Mr Jones arrived, he had completed all his tasks and it was time for him to handover and go home. 59
i. Shortly after Mr Jones arrived, he and Mr Jones were approached by the customer from the property at 417 Balbarrup Road. The customer asked if the power was back on. Mr Paterson informed the customer that it was. The customer said that they would go and switch over from generator to the main supply. 60
j. At around 19:25 the customer approached he and Mr Jones and informed them that he had just received an electric shock from the tap in his shower (Incident). 61
k. His immediate reaction was to isolate the HV DOF by using Mr Jones’s HV sticks (Emergency Switching). Mr Jones contacted Mr McCallum via two-way radio and asked him to return to the Fault Site. 62 He and Mr Paterson began trying to identify the cause of the Incident.
l. At around 19:45, Mr McCallum came back to the Fault Site and set up the EWP (WPC362) at the transformer pole. 63
m. He and Mr Jones proceeded down Fernhill Rd to check the cable attached to the LV mains. Mr Paterson used the spotlight to check how the cable was connected. Mr Paterson says that he quickly noticed a small amount of blue colour showing on the black heat shrinked cable. Through this, he was able to determine the blue and black were doubled on to the LV mains to make the neutral. Upon following that conductor back to the source, he then realised that the source transformer may be transposed. 64
n. To confirm this, Mr Paterson and Mr Jones went back to the Church end of Balbarrup Rd and looked at the service wire. They could see a neutral tag on the service wire and confirmed which LV conductor it was connected to. Mr Power made a diagram on a piece of paper, and they tracked the conductor back to the source. By doing all this, they confirmed that Mr Paterson had transposed the taps from the transformer to the LV overhead network. 65
[66] To the contrary in the investigation Mr McMaster found that:
a. Mr Paterson re-energised the high voltage conductor at around 18:10 without first notifying NOCC. 66
b. Mr Jones arrived at the Site at 18:13 and Mr McCallum left the site at 18:18 after the network was energised. 67
c. The customer approached Mr Jones and Mr Paterson at 18:30 to check if the power was back on and was told that it was. 68
d. Shortly after 6:30pm the customer approached Mr Paterson and Mr Jones and informed them that he had just received an electric shock from the tap in his shower. 69
e. Just before 19:04 Mr Paterson paused his search for the cause of the Incident and left the Fault Site with Mr Jones to find a location where Mr Paterson could communicate with NOCC. 70
f. At 19:04 Mr Paterson cancelled the EAP with NOCC without reporting the Incident to NOCC. 71
g. At 19:11 Mr Paterson and Mr Jones returned to the Fault Site. 72
h. At 19:20 they identified the cause of the Incident. 73
i. At 19:34 Mr McCallum corrected Mr Paterson’s incorrect wiring. 74
[67] Mr Jones confirmed that he arrived at the Fault Site at around 18:00 and spoke to Mr Paterson almost immediately. 75 He says that Mr Paterson said to him: “You rocked up when all the work is done. Its all finished.” Mr Power says that he then signed on the EAP and that at about this time Mr McCallum left the Fault Site.76
[68] Mr Jones signed on to the WRAP at 18:00. 77
[69] Mr Jones confirmed that the customer approached he and Mr Paterson at about 18:30 to check if the power was back on and a few minutes later to let them know he had received an electric shock. 78
[70] Mr Jones stated that, while he and Mr Paterson were trying to find the cause of the Incident, Mr Paterson told him that he could not access the NOCC because there was no coverage so Mr Jones drove them both to the top of the hill on Fernhill Road. Mr Jones says that when that did not improve coverage he turned around and drove to the corner of Fernhill Road and Balbarrup Road where Mr Paterson was able to get better coverage. He says that they then returned to the Fault Site. 79
[71] The Switching Program confirms that authority to re-energise was granted by NOCC at 19:07. 80
[72] At around 19:45, Mr McCallum came back to the Fault Site and set up the EWP (WPC 362) at the transformer pole while Mr Jones and Mr Paterson continued to investigate the cause of the electric shock. 81
[73] Once the cause of the Incident was identified and rectified Mr Paterson livened the network back up at around 20:00. 82 NOCC were not notified that the network was livened.
[74] Mr Paterson then conducted a metrel test at the property of the injured customer, and restored power to the property at around 20:05. When conducting the metrel test, Western Power say that Mr Paterson incorrectly recorded information on the service connection test form that he completed after the Incident.
[75] Mr Jones and Mr Paterson left the Site and went to the Manjimup café arriving at 20:21. Mr Paterson called Mr Bryn Ash (Project Network Officer on-call) at 20:45 to advise him of the incident. At 21:01 Mr Jones also texted Mr Deall to advise him of the incident. At 20:45 Mr Paterson contacted the NOCC and reported the incident. At around 21:04 Mr Paterson called the Western Power Incident hotline and reported the incident. 83
[76] At about 21:11, Mr Paterson received a call from Ms Karen Nash (Operations Business Partner on call) to discuss the incident. 84
[77] At about 21:19, Mr Paterson called Mr Gary Smith (Field Operations Team Leader) to advise him of the incident. At about 21:36, Mr Smith called Mr Paterson and requested that he and Mr Jones return to site and pull the LV fuse. 85
[78] At around 22:20, Mr Paterson arrived back at Bridgetown depot, signed off the WRAP, collected his ute and went home. He arrived home at approximately 23:20. 86
[79] On 23 October 2021 Mr Paterson and Mr McCallum prepared witness statements with respect to the Incident. 87 On 25 October 2021 Mr Asplin and Mr Jones prepared a witness statement with respect to the Incident.88
[80] On 25 October 2021 Mr McMaster was appointed by Western Power to investigate the circumstances in which the customer suffered the electric shock. He was assisted in the investigation by Mr Daniel Monks (Mr Monks). Mr Monks is a Lineworker and a Health and Safety Representative based at Western Power’s Picton Depot. 89
[81] On 26 October 2021 Mr Paterson completed a Distribution Commissioning Form.
[82] Mr McMaster, assisted by Mr Monks, conducted an interview with Mr Paterson on 26 October 2022 (First Interview). The First Interview commenced at around 11am and concluded at around 4pm. There was a break of approximately 40 minutes halfway through. 90
[83] Mr Jones attended the First Interview as Mr Paterson’s support person. During the interview Mr McMaster constructed a timeline of events based on the information provided to him by Mr Paterson and Mr Jones. 91
[84] On 27 October 2021 Mr McMaster interviewed Mr Asplin and Mr Jones, and on 28 October 2021 he interviewed Mr McCallum. 92
[85] On 3 November 2012 Mr Paterson was advised in writing that he was stood down with pay pending the outcome of the Investigation. 93
[86] On 6 November 2021 Mr Paterson attended a second investigation interview with Mr Monks and Mr Deally (Second Interview). Mr Jones attended the interview as Mr Paterson’s support person. At this meeting Mr Monks presented a new timeline. Mr Paterson says that he was concerned that the timeline was not completely accurate and therefore requested the opportunity to review and respond to the timeline in detail. He stated that he was assured he would be given this opportunity. 94
[87] In the course of his investigation Mr McMaster obtained ‘telemetrics’ data from the vehicles operated by Mr Paterson, Mr Asplin, Mr McCallum and Mr Jones on 22 October 2021 which tracked the location of those vehicles on that date.
[88] It is the practise of Western Power at the conclusion of investigations to conduct a meeting of key stakeholders called a ‘5 Whys Meeting’. On 9 November 2021 Mr Paterson became aware that the ‘5 Whys Meeting’ for the investigation was to be held in the upcoming days. He says he was concerned by this news because he expected that he would be given an opportunity to review the timeline and provide further information. He therefore annotated a copy of the timeline and sent it to Mr McMaster in the afternoon of 9 November 2021. 95 The following day Mr McMaster replied to explain the timing of the ‘5 Why’s Meeting’ and to reassure Mr Paterson that he and Mr Monks intended to meet with Mr Paterson again to clarify any outstanding queries.96
[89] On 11 November 2022 Mr Paterson attended a third interview (Third Interview). This interview was conducted by Mr McMasters and Mr Monks. Mr Paterson was informed that Mr Jones would not be permitted to attend the meeting, so at short notice Mr Paterson secured Mr Bora Vuckovic to be his support person. Mr Paterson took the view that the questions he was asked were not relevant and asked for an opportunity to provide a more detailed written statement. 97
[90] On 18 November and on 22 December 2021 Western Power released bulletins to all staff in relation to the Incident. 98
[91] Relevantly, the 18 November 2021 Bulleting stated: 99
“• At all times, Western Power employees are to follow the relevant Electrical System Safety Rules and relevant procedures and work instructions associated with the task when working on the network. If there is any confusion regarding the interpretation of these requirements, this must be discussed with your Formal Leader prior to commencing work.
• All employees are to ensure that prior to disconnecting any electrical apparatus from Western Power’s HV/LV network the conductors and wiring must be clearly marked to identify the correct phase position and neutral connections.
• The neutral connection at the electrical apparatus or on the network must be positively identified and a neutral marker tag (HG2101) must be attached to the neutral conductor/wire prior to disconnection.
• Any new and repaired/maintained electrical apparatus connected to the HV/LV network must be commissioned using approved procedures/work instructions as outlined in the Electrical System Safety Rules section 4.3 Commissioning general and are to comply with the relevant Distribution Commissioning form and data sheet requirements.
• When commissioning electrical apparatus, clearly communicate each person’s task, then check and confirm with your colleague that the conductors and wires have been positively identified before connections are made to the network prior to energisation.
• If you feel unsafe, unsure or unable to comply at any time with any of the above requirements, stop work immediately and inform your Formal Leader.”
[92] Relevantly the 22 December 2021 Bulleting stated inter alia: 100
“• LV Network neutral must be positively identified, and a neutral tag/marker installed on the LV Network when:
• Disconnecting/reconnecting taps;
• Disconnecting/reconnecting existing equipment;
• Making or breaking any connections; and
• Installing new equipment on the Network.
• All relevant Western Power Work Instructions (WI) are currently under review to include the requirement to install the LV neutral tag/marker.
• Power Training Services training packages are currently under review to include the requirement to install the LV neutral tag/marker in all relevant course materials.
• The LV neutral tag/marker is a visual indicator for the Network LV neutral, however, this does not remove the responsibility of the electrical worker to check, confirm and inspect the neutral position for the safe connection/interconnection of LV circuits.”
[93] Mr McMaster completed his investigation on 6 December 2021 and concluded that: 101
“a) on 22 October 2021, when connecting electrical wires to a new transformer, Aaron Paterson (Lineworker) transposed the low voltage side of the transformer and low voltage overhead power line of the network;
b) the transposition of these two wires resulted in a reverse polarity at the three properties which were connected to the low voltage network, including the Property;
c) the reverse polarity resulted in the consumer's earth becoming energised, and in turn the earthed tap of the consumer's shower also becoming energised;
d) the consumer received the electric shock, when he touched his shower tap, because Mr Paterson had incorrectly connected the transformer to the low voltage network which had caused the consumer's earthed tap to become energised; and
e) while there were other factors which contributed to the Safety Incident occurring, the actions of Mr Paterson on 22 October 2021 (in incorrectly connecting the transformer to the network and failing to properly check the network connections before energising) was the direct cause of the Safety Incident.”
[94] On 16 November 2021 Mr Paterson received a show cause letter (Show Cause Letter). The Show Cause Letter asked Mr Paterson to respond to the following allegations by 5pm, Friday 17 December 2021: 102
“You have failed to perform the tasks in accordance with Western Power policies, procedures and Code of Conduct. It is alleged that as the Lead Lineworker:
l. You failed to conduct a proper handover with Ben prior to him leaving site.
2. In the absence of any markers or tags, you failed to trace the LV network to confirm the position of the LV OH open wire neutral.
3. You failed to apply conductor grease and scratch brush the OH line connection as per work instruction 'Maintaining overhead Service cables'.
4. You failed to test the integrity of the TX using Distribution Commissioning From
5. You energised the HV and LV network without authority from Network Operations on two occasions.
6. You failed to stop work and follow Western Power's incident management procedure; 3.1- lnitial Response and 3.2- Incident Reporting.
These allegations are serious and if substantiated, may amount to:
(a) a failure to meet the expected behaviour of a Western Power employee;
(b) a breach of the Western Power Code of Conduct, in particular:
1. Principle 2. We comply with laws, regulations and our policies; and
2. Principle 4. We put safety first, and are respectful of the environment .
3. Misconduct/ serious misconduct as defined in the HR Procedure - People Performance”
[95] Mr Paterson requested, and was granted, an extension until 15.00pm Monday 20 December 2021 to provide his show cause response. 103
[96] Mr Paterson provided his written response to the Show Cause Letter at 12:30pm on Monday 20 December 2021 stating as follows: 104
“I accept complete responsibility for the incident and my actions that occurred on Friday, the 22nd of October. It was a complete disaster and many things were not right. The fact that a customer was hurt due to my actions is the worst outcome I could have imagined. I feel awful for the customer and what I have put him through. I am continually asking for updates on how he is going, and he is often in my thoughts.
My objective that day was to repair the issues and restore power in a safe and timely manner. It was a very difficult situation which involved a high level of stress and things did not go as well as I would have liked them to. I made poor judgements which involved me performing most of the tasks involved. I recognise that many things should have been handled differently, and accept that it was my responsibility for the things that went horribly wrong.
Since I started working for Western Power, a high level of safety and performance have always been my priority. I always get great satisfaction from doing the best I possibly can, even at the worst of times. I always go into a job with the confidence of "How can I do this?" and not "How can I get out of this?" attitude. This was emphasised one year during my traineeship when I was nominated by my peers for the "Rising Star Award", which was for continually going above and beyond in my work.
It's been rewarding to see how proud my sons are of me after witnessing all the hard work I have gone through to achieve a high level career with Western Power.
I will often take on work that no one else wants a part of, which was reflected this year when I attended and dealt with a fatality due to an unrelated accidental electrocution, because the on call linesman felt he couldn't deal with it. It was knock off time and I could have just walked away, yet I had no hesitation to rush to the scene, make it safe and follow through with the investigation. On many occasions I find I am the first one in and the last one out of a job, as I'm always ready to take on any challenge and follow it through. I also always make my self available for on call and often cover for others, and have done the Christmas and Easter roster every year during my career. I very rarely have sick leave, and am always punctual with anything to do with work.
I enjoy working for Western Power as it gives me the opportunity to make a positive difference to the community. I am frequently working with the PNO's on a path of continual improvement to the network to ensure safe and reliable supply to customers. I feel during my time as the fault man it has reduced faults, fault times and increased the safety of the network due to the constant information I relay to the PNO's and the projects resulting that we embark on. Furthermore, I am constantly looking for any improvements that can be made, which shows the work I do is more than just fault response. I am well known by all customers and electricians in my area and am often the face for Western Power. Many of these people regularly call me to look for advice or help. I am always accommodating their needs where I can, and do that with a level of professionalism that our company would be proud of.
Before I was tasked with the fault response role, I was a crew leader of one of the Bridgetown construction crews. This involved me planning and performing work while co-ordinating a team and delegating tasks. Now that I perform fault response work I find I'm often doing most of the main tasks myself, which I believe is the reason I took on so much that day, and I now realise I should have delegated more. In future, I would ensure I would not put myself in this position and ensure I would better utilise the assets I have before me.
I was taught my in the field skills by old school linesmen that are now retired. It was a pleasure to have the opportunity to absorb the methods these guys would handle the faults back in the day. It gave me the experience of not only what I learned during my traineeship, but also the way things used to be. I recognise now some of these ways were sometimes bad habits used by linesman back when things were different. Moving forward I would ensure only current process and procedures were employed in every moment as this is how I must act to ensure safety is paramount.
As time went on the work load on my position increased, which become an intense juggling act between faults, streetlight maintenance, PNO requests, service orders and other duties. I was often doing PNO work such as electric shocks and supply investigations as there was no local PNO to perform this function. They were often busy in their own areas dealing with issues, so it was common they called upon me to help them take care of my area and remedy most of the issues here if I could. I would then relay my findings and evidence to them, and sometimes follow up with the electrical inspector. Even though I was always happy to help, taking on so much in my role would at times be too much. I realise now I should have communicated with my FSO more that my work load was too much at times, and sought assistance when required. I always felt it was best to run silently in the background and cope no matter what to ensure the performance of the maintenance crew work was not impeded, and I didn't want to be seen as not capable of performing my function. I also never wanted to be seen as a burden on anyone for asking for help, but I found it very hard to say "no" to any challenge put before me. I now realise that was the wrong way to deal with my role and accept I must make changes.
The incident has really opened my eyes on where I have gone wrong. It has weighed heavily on me, but the investigation process and time taken so far has cut deep. The stress I have gone through over the incident eventually caused me to seek help from the suggested employee assistance program (EAP), and I ended up having a lengthy session with a mental health social worker. I am finding it hard to sleep, not eating properly and am constantly distraught about this. My life is currently on hold, however this has not only affected me, but has also affected my family negatively, and that hurts watching the stress this has put them through as well. To have all I've worked for to get to this point in my career with Western Power is truly devastating to me, and I am feeling terrible about it. I have worked really hard and feel I've made a huge positive difference in the position I'm in as a fault man. If you ask anyone who knows me well, you will find I always ensure a very high level of professionalism and respect for my work, the people I work with and the customers always. The safety of myself and all others always comes first, and is my highest priority. I would like to think these were the main values considered why I was put in such an important position. The fact that this year I already had to attend and deal with a fatality due to an unrelated accidental electrocution makes it a really tough time for me.
In the end, I would happily step down to a less demanding role or do what ever is required to put me on the right track. To have my employment terminated would be detrimental to me and my family's life. Both emotionally and financially the impact would be unbearable as I have based all my commitments so far surrounding my career. I am embarrassed for what I have done and have learned from my mistakes. I hope you accept my apology with this matter and give me the chance to prove I can be an ideal, valuable employee.”
[97] A meeting was arranged for 22 December 2021 for Western Power to provide an outcome to Mr Paterson. 105 At that meeting Mr Paterson was informed that Western Power had decided to terminate his employment with effect immediately. Mr Paterson was paid notice and his accrued entitlements.
[98] The following disciplinary action was taken against the following employees in relation to their involvement in the Incident:
a. Mr Asplin received a first and final warning;
b. Mr Jones received a formal warning;
c. Mr McCullum received a formal warning.
[99] Mr Paterson registered with Seek.com on 26 December 2022 and began looking for work from that day. He primarily sought employment as a line worker. He did not make any applications for jobs that required an unimpeded Network Access license as his Network Access license was restricted until at least 31 January 2022. 106
[100] Between 26 December 2021 and 31 January 2022, Mr Paterson made two verbal applications for employment. These were for: 107
a. A position as a high voltage switcher at the Greenbushes Mine, which is operated by Talison Lithium Pty Ltd and is located at Greenbushes; and
b. A switching operator for Network Contracting Pty Ltd, which required the performance of work in the Perth Metropolitan area.
[101] He was successful in the second application and commenced employment with Network Contracting Pty Ltd on 31 January 2022. He was employed initially on a casual basis, but was successfully converted his employment to full time on or around 31 April 2022. 108
[102] His only source of income since his dismissal from Western Power has been income earned from Network Contracting. As at 17 June 2022, the Applicant earned a total of $59,298.75 (gross) in remuneration from his employment with Network Contracting. As at 17 June 2022, Network Contracting paid a total of $5,480.06 in compulsory superannuation on behalf of the Applicant. 109
[103] Mr Paterson’s current annual salary is $154,440.00 (gross). 110
[104] Mr Paterson seeks orders that his service be deemed continuous from the date of his termination on 22 December 2021. He also seeks orders that he be paid an amount for the remuneration lost because of the dismissal. 111
[105] Alternatively, Mr Paterson seeks an order for payment of compensation in accordance with sections 390(3) and 392 of the FW Act up to the maximum allowable.
[106] An order for reinstatement or compensation may only be issued if Mr Paterson was unfairly dismissed and Mr Paterson was protected from unfair dismissal at the time of his dismissal.
[107] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
a. the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
b. one or more of the following apply:
i. a modern award covers the person;
ii. an enterprise agreement applies to the person in relation to the employment; and
iii. the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the Fair Work Regulations 2009 (Cth) (Regulations), is less than the high income threshold.
[108] For the purposes of Part 3-2 of the FW Act an ‘employee’ means an employee of a national system employer. There is no dispute and I am satisfied that Western Power is a national system employer 112 and Mr Paterson is therefore a national system employee.
[109] If the employer is not a small business, the ‘minimum employment period’ is six months ending at the earlier of the following times:113
a. the time when the person is given notice of the dismissal; or
b. immediately before the dismissal.
[110] There is no dispute, and I am satisfied, that Western Power is not a small business employer for the purposes of section 383 of the FW Act.
[111] Mr Paterson commenced employment with Western Power on 9 December 1985. 114
[112] Mr Paterson commenced employment with Western Power on 11 May 2009. 115 Mr Paterson was dismissed on 22 December 2021. 116
[113] I am therefore satisfied that, at the time of dismissal, Mr Paterson was an employee who had completed a period of employment of at least the minimum employment period.
[114] There is no dispute, and I am satisfied, that the Agreement applied to his employment at the time of his dismissal.117 Consequently, I am satisfied that Mr Paterson was protected from unfair dismissal.
[115] Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:
a. the person has been dismissed;
b. the dismissal was harsh, unjust or unreasonable;
c. the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and
d. the dismissal was not a case of genuine redundancy.
[116] Section 386(1) of the FW Act provides that a person has been dismissed if the person’s employment was terminated at the employer’s initiative or the person resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.
[117] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[118] There was no dispute, and I find, that Mr Paterson’s employment with Western Power was terminated at the initiative of Western Power.118
[119] I am therefore satisfied that Mr Paterson has been dismissed within the meaning of section 385 of the FW Act.
Was Mr Paterson’s dismissal a case of genuine redundancy?
[120] Pursuant to section 389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
a. the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
b. the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
[121] It was not in dispute, and I find, that Mr Paterson’s dismissal was not due to Western Power no longer requiring his job to be performed by anyone because of changes in Western Power’s operational requirements.
[122] I am therefore satisfied that the dismissal was not a case of genuine redundancy.
[123] Section 388 of the FW Act provides that a person’s dismissal is consistent with the Small Business Fair Dismissal (SBFD)Code if:
a. immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
b. the employer complied with the SBFD Code in relation to the dismissal.
[124] It was not in dispute, and I find, that Western Power was not a small business employer within the meaning of section 23 of the FW Act at the relevant time, having in excess of fourteen (14) employees.
[125] As Western Power is not a small business employer within the meaning of the FW Act, I am satisfied that the SBFD Code does not apply to Mr Paterson’s dismissal.
[126] Pursuant to section 396 of the FW Act, the FWC is obliged to decide whether an application was made within the period required in subsection 394(2) of the FW Act before considering the merits of an application.
[127] Section 394(2) of the FW Act requires that the Application is to be made within twenty-one (21) days after the dismissal took effect.
[128] It is not disputed, and I find, that Mr Paterson was dismissed from his employment on 22 December 2021 and made the Application on 12 January 2022. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.
[129] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd by McHugh and Gummow JJ as follows:
“…. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”119
[130] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
a. whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
b. whether the person was notified of that reason;
c. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
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;
e. if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
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;
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.
[131] Each of these criteria must be considered to the extent they are relevant to the factual circumstances of the Application.120
[132] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”121 and should not be “capricious, fanciful, spiteful or prejudiced.”122 It is not the role of the FWC to stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.123
[133] The employer carries the onus of establishing a valid reason. 124
[134] The reasons on which Western Power rely for Mr Paterson’s dismissal were described in the Show Cause Letter as follows:
“You have failed to perform the tasks in accordance with Western Power policies, procedures and procedures and Code of Conduct. It is alleged that as the Lead Lineworker:
l. You failed to conduct a proper handover with Ben prior to him leaving site
2. In the absence of any markers or tags, you failed to trace the LV network to confirm the position of the LV OH open wire neutral
3. You failed to apply conductor grease and scratch brush the OH line connection as per work instruction ‘Maintaining overhead Service cables’
4. You failed to test the integrity of the TX using Distribution Commissioning From
5. You energised the HV and LV network without authority from Network Operations on two occasions
6. You failed to stop work and follow Western Power’s incident management procedure; 3.1- Initial Response and 3.2- Incident Reporting.”
[135] Where a dismissal relates to an employee’s conduct, the FWC must be satisfied that the conduct occurred and justified termination.125 The question of whether the alleged conduct took place and what it involved is to be determined by the FWC on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.126
[136] Where the employee’s conduct or capacity affects the safety and welfare of other employees the Commission may find that this is a valid reason for dismissal. 127
[137] In relation to unfair dismissal cases involving safety breaches, a Full Bench of the Commission in BHP Coal Pty Ltd T/A BMA v Schmidt 128 stated at [8]:
“The criteria for assessing fairness, although not exhaustive, are clearly intended by the legislature to guide the decision as to the overall finding of fairness of the dismissal and are essential to the notion of ensuring that there is “a fair go all round”. This is particularly important in relation to safety issues because the employer has obligations to ensure the safety of its employees, and commitment and adherence to safety standards is an essential obligation of employees – especially in inherently dangerous workplaces. The notion of a fair go all round in relation to breaches of safety procedures needs to consider the employer’s obligations and the need to enforce safety standards to ensure safe work practices are applied generally at the workplace.”
[138] In determining whether a safety breach warrants dismissal the FWC typically takes into account the following: 129
a. the seriousness of the breach/incident;
b. company policies setting out safety procedures and consequences for breaches;
c. relevant occupational health and safety training by the employer;
d. whether the incident/breach was isolated or recurring in nature; and
e. whether or not the employee concerned was a supervisor and expected to set an example.
[139] Mr Paterson was a qualified and experienced Lineworker who had control over the site and directed other Lineworkers as to their duties on the day of the Incident. Western Power submit that his failure to comply with its safety practices and procedures (including failing to report the electrocution of the customer immediately) is a valid reason for his dismissal.
[140] Mr Paterson asserts that he did not act deliberately in breaching any of Western Power’s policies and procedures. Nor he says was he recklessly indifferent to them. He insists that he took all care reasonably expected of a Lineworker in his position. To the extent that his action did not meet the expectations of Western Power he says that this is a matter which should have been addressed by performance management not dismissal.
[141] The Show Cause Letter raised the following six allegations:
Allegation 1 - You failed to conduct a proper handover with Ben prior to him leaving site.
[142] Mr Paterson’s evidence is that as his rostered shift had been completed Mr Asplin wanted to leave and was insisting the after-hours crew take over during a critical moment of the task. According to Mr Paterson most of the conversation which did occur consisted of him trying to convince Mr Asplin to stay and hang the new transformer on the pole before he and the crane driver left. 130
[143] Mr Asplin did not relay to Mr Paterson that anything that was out of the ordinary or wrong. He should have done so. Had Mr Asplin communicated that something wasn't right or the fact that the LV taps were transposed it seems likely that the Incident would not have occurred. 131
[144] However, as the person in charge Mr Paterson was responsible for ensuring that work was performed safely and in accordance with policy and procedure.
[145] Mr Paterson was focused on getting power restored to customers as quickly as possible. A willingness to work overtime to restore power to customers in most circumstances would be an admirable and desirable trait. However, timeliness of service delivery can not be prioritised over safety in an industry where safety incidents can so readily result in serious injury or death.
[146] Insisting that his crew work overtime when they did not wish to do so elevated the risk of mistakes being made due to fatigue or haste. Such heightening of risk was inappropriate in circumstances where the need to complete the task was not pressing given that the afterhours crew had indicated that they would attend the site as soon as possible and the number of customers affected by the outage was very small. 132
[147] Given the nature of the work performed by Mr Paterson and his crew proper handovers are essential to ensure the safety of workers, customers and the general public. The completion of a proper handover was particularly important given that Mr Asplin was performing the work in haste at the end of a shift and departing before the task was completed.
[148] Pressing for this work to commence in circumstances where it would not be completed by Mr Asplin and not ensuring that a proper handover occurred can not be characterised merely as poor performance and on the lower end of seriousness as proposed by Mr Paterson.
Allegation 2 – In the absence of any markers or tags, you failed to trace the LV network to confirm the position of the LV OH open wire neutral
[149] Mr Paterson denies that there was an absence of markers or tags. He says that the LV tap was clearly marked as a phase tap and that was his reference point. 133
[150] He admits that he did not trace the LV network to confirm the position of the LV OH open wire neutral, however he claims that this was not required or expected in the circumstances because: 134
a. There was no reason to think the configuration was not standard. 135
b. The paddock side tap was a phase tap, which ordinarily indicates that neutral is not on the paddock side and that the standard configuration of roadside neutral applied. 136
c. There was no sign on the relevant pole showing that the connection was transposed. 137
[151] Mr Paterson says that he did everything that was required according to his knowledge and training. He asserts there was no process or procedure at the time about what to do in the situation. He says that the release of bulletins after the incident show that changes and clarification were required in Western Power’s processes and procedures. 138
[152] Mr Paterson documented on the WRAP before commencing work that he had identified the hazard of “incorrect network configuration” and intended to apply the control measure to check, confirm and inspect circuits for safe interconnections”.
[153] However before connecting the conductors to the transformer, Mr Paterson did not trace the low voltage network to confirm the position of the neutral low voltage overhead open wire before he wired the new transformer at the relevant pole. Instead, he assumed that the neutral low voltage overhead wire was on the road-side of the new transformer. 139
[154] The evidence is that Mr Paterson could have ascertained the position of the neutral conductor on the pole through a visual check of the low voltage network by walking 300 metres (west) or 100 metre (east) from the pole (where he was wiring the transformer) to two other poles where he would have seen neutral tags or at least identified the neutral conductor. 140
[155] Given that Mr Paterson was completing a task in the dark commenced by another linesmen he should have exercised heightened diligence in applying the controls to the hazard he had identified. In these circumstances I do not accept that this oversight can be properly characterised as a performance matter of a non serious nature.
Allegation 3 – You failed to apply conductor grease and scratch brush the OH line connection as per work instructions ‘Maintaining Overhead Service Cables’.
[156] Mr Paterson says that he ensured that the conductors were scratched. Mr Paterson concedes that he did not use a scratch brush because he did not have a scratch brush available but he says that in any event there was not policy requirement to use a scratch brush. He denies he was cutting corners and instead says that he used a simpler older technique that he believed to be effective. 141
[157] Mr Paterson accepts that it was a policy requirement that he apply conductor grease. 142 Mr Paterson says that he ensured that conductor grease was present. He says that after he did so the positions of the connections were changed by Mr McCallum once it was determined that the cause of the incident was that the LV TX taps were transposed. Mr Paterson asserts that it was Mr Jones, not he, that was the Lead Linesman at that point in time and it was therefore Mr Jones who was responsible to ensure grease was present.143
[158] Mr McMaster’s evidence is that he inspected the clamps and observed that grease was dry and cracked and therefore concluded that the grease was applied when originally installed approximately ten years ago and that no new grease had been applied by Mr Paterson. Mr McMaster says that when he interviewed Mr Paterson on 11 November 2021 Mr Paterson told him that he did not apply grease because he had none in his vehicle.
[159] In his Statement in Reply to Mr McMaster’s Witness Statement Mr Paterson conceded that: 144
“I later recognised that a conductor specific scratch-brush should ordinarily be used and I accepted this in my show cause response.”
[160] A review of the clamps during the Hearing revealed no evidence of grease.
[161] Mr McMaster appeared at the Hearing to be an earnest and truthful witness. He has had considerable in field experience. There is no explanation provided by Mr Paterson as to why Mr McMaster might lie about the admission, he says Mr Paterson made. On the other hand various inconsistencies emerged in Mr Paterson’s evidence at Hearing and he appeared to be in comparison a less forthright witness than Mr Paterson. In all the circumstances I am prefer the evidence of Mr McMaster and I am therefore satisfied that this allegation was made out.
Allegation 4 – You failed to test the integrity of the TX using the Distribution Commissioning Form
[162] Mr Paterson concedes that he did not test the integrity of the transformer. 145
[163] He says that there was no reason for him to believe the transformer was not commissioned and that it was not his responsibility to confirm the commissioned status of the transformer.
[164] Mr Paterson says that he assumed the delivered transformer was commissioned at the depot before being sent to site. Mr Paterson says that it was reasonable for him to presume that the transformer was commissioned at the Depot before it was sent to Site because:
a. this was the normal procedure at the time; and
b. he requested the transformer from Mr Deall, who was aware that Mr Paterson was not in possession of a MEGA to perform the commissioning on site. 146
[165] Mr Paterson says that even if there was a reason to doubt that the transformer was commissioned at the Depot responsibility for the commissioning of the new transformer should not have fallen solely on him particularly given other people arranged, delivered and installed it.
[166] Mr Paterson points out that he was not the person who put the transformer up on the pole. He says it was reasonable for him to have expected that person who did so ensured that it was commissioned. He says that it was only once he went to close the job off and fill the data sheets out on the tough pad electronically that he realised no one had given him the data. 147
[167] He also points out that there were also several other Linesmen on site with the ability to commission the transformer at the Site. He says that it was reasonable that they did so given that at the time, he was already overseeing multiple tasks. This included switching, cutting the tree off the line, pulling the wires back up in the air with the ute and generally co-ordinating the repairs and restoration of the fault. 148
[168] The purpose of the testing is to ensure the integrity of the transformer and to eliminate the risk of catastrophic failure when the transformer is connected to the high voltage wires and energised. Mr McMaster agrees that the tests should occur before the transformer leaves the Depot but says that they also should occur at the delivery site to ensure the transformer has been damaged in transit. 149
[169] It is true that there were other Linesmen on site that could have performed the task of ensuring the transformer was commissioned. However, Mr Patterson was the RIC, he had overall oversight of all the work occurring at the Site. He did not direct any of them to do so or confirm that any of them had done so.
[170] In circumstances where he was taking over a task that had been performed in part by several other linesman, where the work was being performed in haste at the end of a shift, where not proper handover had occured and where as RIC he was ultimately in charge of ensuring the Fault was correctly and safety repaired he should have had a heightened awareness of the importance of checking that all the relevant installation and connection phases had been properly completed.
Allegation 5 – You energised the HV and LV network without authority from NOCC on two occasions
[171] Mr Paterson concedes that knowingly energising a network without authorisation is a serious matter. 150
[172] However, Mr Paterson insists that NOCC did give him the authority on the first occasion the network was energised, and that this is supported by the switching program. 151 Mr Paterson says that the switching report shows that he obtained authorisation from NOCC at 19:07 and that he energised the network shortly thereafter.
[173] It is agreed by the parties that Mr Paterson energised the network on the first occasion before:
a. Mr Jones arrived;
b. Mr McCallum left the site for the day; and
c. Mr McCallum returned to the site.
[174] The Switching Report confirms that Mr Paterson obtained authorisation from NOCC to re energise the system at 19:07.
[175] The telematics data showed Mr Jones vehicle driving to the site near where Mr Paterson was working and then idle from 18:13 to around 18:40. The same data showed Mr McCallum’s car leaving the site at around 18:18 and not returning to the site until 18:51.
[176] Mr Paterson says that this telematics data can be explained as follows:
a. Mr Jones was in the vicinity of the Applicant between 18:13 and 18:50 and in his car, but made no contact with the Applicant;
b. Mr McCallum left the site during this time using his vehicle and returned to the site;
c. Mr Jones arrived near the site and first made contact with the Applicant at or around 19:29;
d. Mr McCallum left the site at or around his time without using his vehicle;
e. Mr McCallum later returned to the site after being called back by Mr Jones.
[177] However, he does not explain why Mr McCallum would leave the site without his vehicle or why there is no mention of this any witness evidence. Nor does he explain why Mr Jones would arrive at the Site and not make contact with Mr Paterson for in excess of an hour.
[178] Mr Paterson’s scenario is also inconsistent with the evidence of:
a. The WRAP Sheet upon which Mr Jones recorded his arrival time as 18:00.
b. Mr McMaster’s evidence that the customer reported that he received the shock at around 18:30.
c. The evidence of Mr Jones at the Hearing that he met with Mr Paterson as soon as he arrived at the site and that he and Mr Paterson subsequently travelled in his vehicle to secure coverage. 152
d. The telemetrics data that the EWP left the t-junction at 18:37.
[179] On the balance of the evidence before me it appears more probable that the first re-energisation occurred prior to 18:30 and therefore prior to the time at which it was authorised by NOCC.
[180] Mr Paterson concedes that NOCC did not authorise the second energisation of the network. 153 Mr Patterson says that when he energised the network he was following the instruction of Mr Jones.
[181] Mr Paterson says that by the time that Mr Jones arrived on site, he had completed all tasks and it was time to handover and go home. He says that Mr Jones and he were discussing handover when the customer came out and complained of an electric shock. Mr Paterson says that it was an instant reaction on his part to isolate the drop out fuse using the HV sticks from Mr Power’s ute. Mr Paterson says that Mr Power then took charge and explained to him what to do. Mr Patterson insists that everything he did after that point was under Mr Jones’s instructions. Mr Patterson says consistent with this when Mr McMaster and Mr Monks were interviewing him and they asked questions about livening up the network the questions were answered by Mr Power and not him. 154
[182] Mr Paterson says that he had no reason to think Mr Jones had no authority from NOCC to liven up the network. Mr Paterson argues that given Mr Jones’ role was a Team Co-ordinator, Mr Paterson was expected to follow Mr Jones’s instructions. 155
[183] In the Statement of Agreed Facts Mr Paterson confirmed that he was RIC at the time of the incident. This is consistent with the WRAP. Mr Jones did not complete a WRAP. There is no evidence that he undertook the duties usually associated with the assumption of the role of RIC. Mr Jones attended the Site in his capacity as relief crew not as team coordinator to render assistance. Consistent with this Mr Jones signed on to the WRAP established by Mr Paterson. It was never put to Mr Jones in cross examination that he assumed control of the Site. Notably in the Show Cause Response Mr Paterson acknowledged that he was in charge.
“I accept complete responsibility for the incident and my actions that occurred on Friday, the 22nd of October. It was a complete disaster and many things were not right ….
I made poor judgements which involved me performing most of the tasks involved. I recognise that many things should have been handled differently, and accept that it was my responsibility for the things that went horribly wrong.”
[184] It appears from the evidence before me that Mr Paterson remained in charge at all relevant times including when the system was reenergised. There is no evidence to demonstrate that Mr Paterson sought approval or inquired whether approval had be granted by NOCC to re energise the system on the second occasion.
[185] As acknowledged by Mr Paterson energising a network without authorisation is a serious matter. 156
Allegation 6 – You failed to stop work and follow Western Power’s incident management Procedure
[186] Mr Paterson says that by the time that Mr Jones arrived on site, he had completed all tasks and that it was time to handover and go home. He says that Mr Jones and he were discussing handover when the customer came out and complained of an electric shock. Mr Paterson says that it was an instant reaction on his part to isolate the drop out fuse using the HV sticks from Mr Power’s ute. Mr Paterson says that Mr Power then took charge and explained to him what to do. Mr Patterson insists that everything he did after that point was under Mr Jones’s instructions. 157
[187] In the Investigation Mr McMaster found that after being notified of the electric shock and executing the emergency switching he should have ensured that all work ceased, preserved the accident site, notified his supervisor and called the Western Power incident hotline. Instead, Mr Paterson commenced a fault-finding exercise and oversaw the remediation of his own error. Mr Paterson eventually reported the incident an hour or more after the incident.
[188] In BHP Coal Pty Ltd T/A BMA v Schmidt 158, the employee failed to notify his supervisor about a safety incident and the relevant damage immediately after the incident occurred and failed to secure and preserve the scene after the incident. In that case, the Full Bench found that the management of a safety situation and communication of the safety incident are at least as important as the accident itself and determined that the conduct was a sound, defensible and well-founded reason for dismissal. 159
[189] Mr Paterson does not in his evidence or submissions dispute that he was not bound to follow the incident management procedure. His sole defence is that he had by that time handed over the Mr Jones and was no longer the RIC.
[190] In the Statement of Agreed Facts, Mr Paterson confirmed that he was RIC at the time of the incident. This is consistent with the WRAP. Mr Jones did not complete a WRAP. There is no evidence that Mr Jones undertook the duties usually associated with the assumption of the role of RIC. Mr Jones attended the Site in his capacity as relief crew to render assistance. Consistent with this he signed on to the WRAP established by Mr Paterson. It was never put to Mr Jones in cross examination that he assumed control of the Site. Notably in the Show Cause Response Mr Paterson acknowledged that he was in charge.
“I accept complete responsibility for the incident and my actions that occurred on Friday, the 22nd of October. It was a complete disaster and many things were not right ….
I made poor judgements which involved me performing most of the tasks involved. I recognise that many things should have been handled differently, and accept that it was my responsibility for the things that went horribly wrong.”
[191] It appears from the evidence before me that that Mr Paterson remained in charge at all relevant times including when the customer reported the shock. There is no evidence that he reported the incident immediately, directed someone else to report it or confirmed that it had been reported. Consistent with his focus throughout his oversight of the response to the Fault, he focused exclusively on reinstating service, prioritising that over the observation of policies and procedures intended to ensure the safety of himself, his team, Western Powers customers and the general public.
Conclusion
[192] To his credit in the Show Cause Response Mr Paterson acknowledged that his conduct fell short on the day of the Incident:
“I accept complete responsibility for the incident and my actions that occurred on Friday, the 22nd of October. It was a complete disaster and many things were not right. The fact that a customer was hurt due to my actions is the worst outcome I could have imagined. I feel awful for the customer and what I have put him through. I am continually asking for updates on how he is going, and he is often in my thoughts.
My objective that day was to repair the issues and restore power in a safe and timely manner. It was a very difficult situation which involved a high level of stress and things did not go as well as I would have liked them to. I made poor judgements which involved me performing most of the tasks involved. I recognise that many things should have been handled differently, and accept that it was my responsibility for the things that went horribly wrong.”
[193] In seeking to defend his dismissal at Hearing he has sought to separate the allegations, dealing with them in isolation, and seeking to characterise them as at ‘the lower end of seriousness’. However, the events did not occur in isolation. They occurred in the course of a single incident, and it is the cumulation of events that Western Power relies on as a basis for his dismissal.
[194] Mr Paterson was focused on getting power restored to customers as quickly as possible. A willingness to work overtime to restore power to customers in most circumstances would be an admirable and desirable trait. However, timeliness of service delivery can not be prioritised over safety in an industry where safety incidents can so readily result in serious injury or death.
[195] Insisting that his crew work overtime when they did not wish to do so elevated the risk of mistakes being made due to fatigue or haste. Such heightening of risk was inappropriate in circumstances where the need to complete the task was not pressing given that the afterhours crew had indicated that they would attend the site as soon as possible and the number of customers affected by the outage was very small. 160
[196] Even more concerning is Mr Paterson’s decision to reenergise the network without satisfying himself that NOCC had provided authority for that to occur.
[197] A failure to report the incident immediately to enable the preservation of the accident site so that an investigation could commence further compromised safety in order to prioritise service delivery regardless of the cost.
[198] Based on the evidence before me and the submissions of the parties for the reasons above I find that a valid reason existed for Mr Paterson’s dismissal.
[199] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,161 and in explicit,162 plain and clear terms.163
[200] The Allegations were put to Mr Paterson in writing on 16 November 2021 in the Show Cause Letter.164
[201] However, Mr Patterson says that these allegations are dependent on certain other findings about which he was not on notice and which he would have disagreed with such as:
a. his level of authority at certain times of the day;
b. his movements throughout the day; and
c. the timing of certain events.
[202] For example, he says that the allegation of the first unauthorised switching appears to be based on a finding that he actually energised the network at 18:05. This was despite the original timeline being put to him showing a much later energisation. Mr Paterson says that it was never put to him that he was found to have energised the network at a much earlier time.
[203] He also points to the Allegation of the second unauthorised switching as well as the allegation that he failed to stop work. He says that these allegations presume that the incident occurred at 18:30 which is almost one hour earlier than the original timeline composed by Mr McMaster and initially put to Mr Paterson.
[204] Mr Paterson says that it was not put to him that he was considered lead linesman or in some sense in control at the time of the Incident.
[205] Mr Paterson also says additional allegations not specifically put him in the show cause process played a substantial part in Western Power’s decision making process and submits that the failure to notify him of these allegations weighs in favour of his dismissal being deemed harsh, unjust or unreasonable.
[206] For the reasons set out earlier in this decision I am satisfied that the Allegations put to Mr Paterson in the Show Cause Letter formed a valid reason for his dismissal. The fact that Western Power had additional concerns about aspects of his conduct would not therefore have affected the outcome even if he had been notified of them.
[207] The Investigation was a fact finding process. Its purpose was to provide the necessary information to determine if, and if so what, allegations should be put to Mr Paterson in the show cause process. That the Investigation ultimately produced different findings of fact to those anticipated by Mr Paterson does not mean he was denied procedural fairness. The allegations contained in the Show Cause Letter are clear and concise. He was provided with the opportunity to respond fully to those allegations. Interestingly in the Show Cause Response he chose not to respond to the particular allegations set out in the Show Cause Letter instead he accepted responsibility for the events which occurred and sought to outline the reasons why adverse findings in relation to the allegations ought not result in the termination of his employment.
[208] At the Hearing Mr Paterson was unable to produce evidence or make submissions which demonstrate that had he been aware of the findings of fact of which he says he was unaware that this would have led to a different outcome.
[209] I am satisfied that Mr Paterson was notified of the reasons for his dismissal before the decision was made to termination his employment.
[210] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.165
[211] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly.166 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.167
[212] Mr Paterson submits that he was not given an opportunity to respond because:
a. In Crawford v BHP Coal Pty Ltd 168, the FWC held that the opportunity to respond extends to the reasonable involvement of the employee in the investigation process and he was not consulted again to clarify the timeline despite noting that there were still errors.
b. While he was given an opportunity to respond to the final decision maker, he was not given an opportunity to respond to the findings of the investigative team and therefore did not have an opportunity to respond to the employer’s findings of fact which were determined in the investigation process.
c. Four days was not a sufficient time to respond given the complexity of the Allegations.
[213] The fact is that Mr Paterson was given a reasonable opportunity to be involved in the investigation process. Given that at the Hearing he still contested Western Power’s timeline further opportunity to respond to the timeline or other findings of fact by Western Power would not have resolved the differences between the parties or changed the outcome.
[214] Given his involvement in the Investigation and the extension of the timeframe to file the Show Cause Response I am satisfied that Mr Paterson was given sufficient time to respond to the Show Cause Letter.
[215] On the evidence before me I am satisfied, that Mr Paterson was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.
[216] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[217] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 169
[218] Mr Paterson says that the refusal to allow him to have the support person of his choice as the Third Interview weighs in favour of his dismissal being unfair.
[219] Mr Paterson was not denied a support person at the Third Interview. Mr Paterson had Mr Bora Vuckovic attend the Third Interview as his support person. The support person initially chosen by Mr Paterson was Mr Jones. Given that Mr Jones was both a witness to events and facing disciplinary consequences himself I accept that it was appropriate for Western Power to preclude him from acting as a support person at the Third Interview. 170
[220] I am satisfied, that Western Power did not unreasonably refuse to allow Mr Paterson to have a support person present at discussions relating to his dismissal. This consideration is therefore neutral in this Application.
[221] As the dismissal did not relate to unsatisfactory performance, this consideration is not relevant to this Application. 171
[222] Where an employer is substantial and has dedicated human resources personnel, and access to legal advice, there will likely be no reason for it not to follow fair procedures.172
[223] Western Power is a large business with dedicated human resource management specialists.
[224] I am satisfied that the procedures followed by Western Power were appropriate having regard to the size of its enterprise. This consideration is therefore neutral in this Application.
[225] The absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”173
[226] Western Power’s enterprise did not lack dedicated human resource management specialists and expertise.
[227] I am satisfied that the procedures followed by Western Power were appropriate having regard to the size of its enterprise. This consideration is therefore neutral in this Application.
[228] Section 387(h) of the FW Act requires the FWC to take into account any other matters that the FWC considers relevant to determining whether the dismissal was harsh, unjust or unreasonable.
[229] Mr Paterson submits that the FWC ought to have regard to the following matters:
a. The offending conduct was not deliberate or careless and at its highest could be described as an error;
b. Those errors occurred on the same day and were one off transgressions in an otherwise unblemished period of 12 years of service.
c. The gravity of the errors were not so great when considering all the other contributors to the Incident, including:
• the Transformer was not commissioned and thus not in the correct configuration;
• the person who delivered the Transformer failed to realise and/or communicate that there was no commissioning data;
• the person who hung the Transformer up failed to realise and/or communicate that there was no commissioning data;
• neither Mr Paterson or anyone else on site had possession of a MEGA and therefore could not have tested the integrity of the Transformer in any event;
• the person who hung the Transformer on the pole did not check to see if it was commissioned;
• there was no positive neutral marker and the policies and procedures for determining the neutral in circumstances where there was no positive neutral marker was unclear at the time;
• there was a high workload on the day with stretched staffing, contributing to the possibility of error; and
• the arrangement of staffing on the day made the locus of responsibility for various confirmatory tasks and what was required to be communicated between particular staff unclear.
d. At least three other employees were investigated and found to be culpable in relation to the Incident but only Mr Paterson was dismissed.
e. Mr Paterson demonstrated remorse and a willingness to change any behaviours he was required to change.
f. Even if there was a valid reason and dismissal was a proportionate response, the dismissal was procedurally unfair because Mr Paterson was not given reasonable notice of all the reasons for dismissal nor a reasonable opportunity to respond.Mr Paterson was 50 years of age at the time of his dismissal and had an unblemished work record. 174
[230] For the reasons explained earlier in this decision I am not satisfied that taken collectively the errors made by Mr Paterson are not of such a low level of seriousness that they can not justify Western Power taking the disciplinary action of the nature they did. A number of the allegations individually arguably support such action.
[231] The aggravating factor in Mr Paterson’s case which forms a basis for the differentiation in disciplinary outcomes is that Mr Paterson was ultimately in charge. As he conceded in his Show Cause Response he made a number of poor judgements and it was his “responsibility for the things that went horribly wrong.”
[232] Mr Paterson was given fair and reasonable opportunity to participate in the investigation and respond to the allegations arising from that investigation. His response to the Show Cause Letter was brave and honest. He accepted responsibility for his actions and expressed remorse which I believe to be genuine and heartfelt.
[233] His Show Cause Response explains in detail his long service and dedication to the delivery of the critical services that Western Power provide to regional communities such as his own. I have no doubt that the investigation process and his ultimately dismissal have, as he says, caused significant distress to himself and his family.
[234] It might be the case that in light of this information another employer might have chosen alternative disciplinary consequences such as a demotion or retraining. However, I am satisfied the disciplinary action chosen by Western Power was open to it.
[235] It is tragic that an otherwise unblemished career of someone so dedicated to their role might end as a result of events on a single day. However, in an industry where the risks of injury and death are so high it is critical that Western Power can have the confidence that each and every day of an employee’s employment is performed in accordance with the policies and procedures created to protect the safety, and preserve the life, of Western Power employees, contractors and customers as well as the broader community.
[236] I have made findings in relation to each matter specified in section 387 of the FW Act as relevant.
[237] I have considered and given due weight to each factor as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.
[238] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Mr Paterson was not harsh, unjust or unreasonable.
[239] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Paterson was unfairly dismissed within the meaning of section 385 of the FW Act. The Application is therefore dismissed.
[240] An Order 175 to this effect will be issued with this Decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR742697>
Appearances:
Mr Aghazarian, for the Applicant.
Mr Wade, for the Respondent.
Hearing details:
2022
PERTH
16, 17 and 30 June
Final written submissions:
Applicant’s Final Written Submissions, 21 July 2022.
Respondent’s Final Written Submissions, 4 August 2022.
1 Warrell v Walton (2013) 233 IR 335, 341 [22].
2 Digital Court Book (DCB) 48-113.
3 Ibid 114.
4 Ibid 46.
5 Applicant’s Closing Submissions filed on 27 July 2022 at 1.
6 DCB (n 1) 46.
7 Ibid.
8 See clauses 13.1, 13.3 and Schedule 2 of the Western Power and CEPU Enterprise Agreement 2017.
9 DCB (n 1) 46.
10 Ibid 50, 954.
11 Ibid 50, 955.
12 Ibid 118.
13 Ibid 119.
14 Ibid 955.
15 Ibid 50.
16 Ibid 241.
17 Ibid 50.
18 Ibid 50, 955.
19 Ibid 118.
20 Ibid 50, 955.
21 Ibid 50, 955.
22 Ibid 51.
23 Ibid.
24 Ibid.
25 Ibid 119.
26 Ibid 51.
27 Ibid 51, 955.
28 Ibid 123.
29 Ibid 51, 957.
30 Ibid 957.
31 Ibid 52, 957.
32 Ibid.
33 Ibid.
34 Ibid 958.
35 Ibid 52.
36 Ibid 52, 952.
37 Ibid 957.
38 Ibid 52, 958.
39 Ibid 53.
40 Ibid.
41 Ibid.
42 Ibid.
43 Ibid 53, 958.
44 Ibid.
45 Applicant’s Closing Submissions (n 5) at 2.
46 DCB (n 2) 53, 58.
47 Ibid 54, 958.
48 Ibid 54, 958.
49 Ibid 959.
50 Ibid 54.
51 Ibid 124.
52 Ibid 124.
53 Ibid 54, 959.
54 Ibid 55.
55 Ibid.
56 Ibid.
57 Ibid.
58 Ibid.
59 Ibid.
60 Ibid 55, 959.
61 Ibid 55.
62 Ibid 56, 961.
63 Ibid.
64 Ibid 56.
65 Ibid 56.
66 Ibid 119.
67 Ibid 119-120.
68 Ibid 120.
69 Ibid.
70 Ibid.
71 Ibid.
72 Ibid.
73 Ibid.
74 Ibid.
75 Applicant’s Closing Submissions (n 5) at 11.
76 Ibid 953.
77 Ibid 305.
78 Ibid 953.
79 Ibid 953.
80 Ibid 113.
81 Ibid 56, 961, 120.
82 Ibid 57, 120.
83 Ibid 57, 120, 962.
84 Ibid 57, 962.
85 Ibid.
86 Ibid 57, 963.
87 Ibid 78, 117.
88 Ibid 117.
89 Ibid 116.
90 Ibid.
91 Ibid 58.
92 Ibid 116.
93 Ibid 82.
94 Ibid 59, 116.
95 Ibid 59, 84.
96 Ibid 86.
97 Ibid 61-62.
98 Ibid 62.
99 Ibid 89.
100 Ibid 91.
101 Ibid 115.
102 Ibid 100-101.
103 Ibid 103.
104 Ibid 106-107.
105 Ibid 100-101.
106 Ibid 963.
107 Ibid.
108 Ibid.
109 Ibid.
110 Ibid.
111 Ibid 66.
112 Ibid 1.
113 Fair Work Act 2009 (Cth) s 383.
114 DCB (n 2) 27.
115 Ibid 46.
116 Ibid 100-101.
117 Ibid 499, Western Power Group Enterprise Agreement 2019.
118 Ibid 273-279.
119 (1995) 185 CLR 410, 465 (McHugh and Gummow JJ).
120 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, 4 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB), (Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
121 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
122 Ibid.
123 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
124 Culpeper v Intercontinental Ship Management Pty Ltd (2004) 134 IR 243.
125 Edwards v Justice Giudice (1999) 94 FCR 561, 565 [7] (Moore J).
126 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23] - [24].
127 See Chris Rodger v ACT Government - Transport Canberra and City Services T/A ACTION [2018] FWC 6970; BlueScope Steel Limited T/A BlueScope Steel Limited Springhill Works v Mr Zaki Habak [2019] FWCFB 5702.
129 See for example Butson v BHP Billiton Iron Ore Pty Ltd [2010] FWA 640 (unreported, McCarthy DP, 1 February 2010).
130 DCB (n 2) 63-64.
131 Ibid 63-64.
132 Transcript PN292-PN297.
133 DCB (n 2) 64.
134 Ibid 64.
135 Applicant’s Closing Submissions (n 5) at 3.
136 Ibid.
137 Ibid.
138 DCB (n 2) 64.
139 Ibid 124.
140 Ibid 124.
141 Ibid 917-918 Applicant’s Closing Submissions (n 5) at 2 , DCB 17.
142 Applicant’s Closing Submissions (n 5)at 2.
143 DCB (n 2) 64.
144 Ibid 923.
145 Applicant’s Closing Submissions (n 5) at 2.
146 DCB (n 2) 64-65.
147 Ibid.
148 Ibid.
149 DCB (n 2) 126.
150 Applicant’s Closing Submissions (n 5) at 5.
151 DCB (n 2) 64-65.
152 Ibid 953.
153 Applicant’s Closing Submissions (n 5) at 2.
154 DCB (n 2) 65-66.
155 Ibid 64-65.
156 Applicant’s Closing Submissions (n 5)at 5.
157 DCB (n 2) 65-66.
159 BHP Coal Pty Ltd T/A BMA v Schmidt [2016] FWCFB 1540 at [17].
160 Transcript PN292-PN297
161 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [73] .
162 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
163 Ibid.
164 DCB (n 2) 100-101.
165 Crozier (n 160), 151 [75].
166 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 – 15 [26] quoting Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).
167 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).
168 [2017] FWC 154, 277 – 288
169 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
170 DCB (n 2) 61-62.
171 Ibid [223].
172 Jetstar v Meetson-Lemkes (2013) 239 IR 1, 21 – 22 [68].
173 Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].
174 Applicant’s Closing Submissions (n 5) at 1.