1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy John Scully v AGL Energy Limited (U2025/4502) COMMISSIONER CLARKE MELBOURNE, 22 JANUARY 2026 Application for unfair dismissal remedy – application dismissed. [1] Mr Scully (Applicant) has made an application under section 394 of the Fair Work Act 2009 (‘Act’) for an unfair dismissal remedy. By that application, the Applicant contended that there was no valid reason for the termination of his employment and that the dismissal had significantly affected his mental health. The applicant expressly sought reinstatement to his position with his former employer, AGL Loy Yang Pty Ltd (Respondent), together with an order to maintain continuity of employment and an order to restore lost pay. [2] The matter was vigorously pursued and vigorously defended, with Counsel and instructing solicitors engaged by both parties and granted permission to represent. There were two contested applications for orders to produce at the interlocutory stage, and an application that I disqualify myself on the second day of hearing.1 The matter proceeded to arbitration over four days, following two unsuccessful member assisted conciliations. I was greatly assisted by the highly competent and courteous legal representation during the hearing. [3] At the commencement of the hearing, I informed the parties of an expectation on my part that if there were any developments in the course of the hearing that they considered material in respect of the availability of costs orders under section 400A or 611 of the Act, that they give notice to the Commission and the other party.2 No such notice was given at any stage. Summary [4] This decision is necessarily a lengthy one and will elaborate on each of the issues discussed in this summary. But at the core of this matter are events which are alleged to have occurred on 24 July 2023 at the Applicant’s former workplace, the Loy Yang A power station in the La Trobe Valley, Victoria. The Applicant, as an Assistant Unit Controller, was assigned a task, which he completed with the assistance of a colleague, Mr Brown. The task was described in the evidence as “restoring an isolation certificate” - a term likely meaningless to those outside the electrical power industry. What it essentially involved is the handling of a high voltage circuit breaker – not the small circuit breakers one might find in household fuse boxes, but rather very large, heavy units that need to be wheeled around and positioned into (or [2026] FWC 119 DECISION [2026] FWC 119 2 removed from) specialised cabinets in order ensure the flow of power to particular circuits (in this case, a circuit that supplied power to a conveyer belt). The central allegations raised by the Respondent against the Applicant are that he failed to perform checks he was required to when doing this task, and that he undertook part of that task – “racking” – improperly and without the personal protective equipment (PPE) that was necessary for that part of the task. The Respondent says that the conduct alleged to have occurred created a risk of injury. Through its own investigation, it satisfied itself that such conduct did occur. It further satisfied itself that the Applicant’s conduct constituted serious misconduct. Taking that conduct into account and what it said to be the Applicant’s lack of contrition, the Respondent terminated the Applicant’s employment on 27 March of 2025 – which is by any measure a considerable period of time later. [5] Aside from conceding some minor circumstantial factual matters contained in the allegations, the Applicant denied wrongdoing in the course of the Respondent’s investigation and during the hearing. The Applicant did not present as a credible witness at the hearing. However, it also became apparent during the hearing that some of the standards that the Applicant was held to during the investigation in respect of his conduct on the day in question were standards that were unfair to hold him to, or at least hold him to exclusively in circumstances when he was required to work in a pair. Because of this, I do not consider that the Respondent had a valid reason to dismiss the Applicant in respect of the conduct that was described as a failure to perform the necessary “checks”. I do consider that the Respondent had a valid reason to dismiss the Applicant in respect of the conduct that may be described as “racking”. I have found that the Applicant did perform racking, incorrectly, and without the proper PPE. [6] Whilst the case was conducted on behalf of the Applicant primarily on the basis that there was no valid reason for dismissal, it was also contended that there were procedural fairness shortcomings associated with the dismissal and that the dismissal was harsh. There were indeed procedural shortcomings in the investigative process. Whilst the matters were finely balanced, I have ultimately concluded that the dismissal was not harsh or unjust or unreasonable. It follows that the application must be dismissed. Witnesses [7] In addition to his own evidence, the Applicant relied on witness statements of Mr Pedemont and Mr Smith. The Applicant [8] The Applicant provided two witness statements. There was no challenge to the Applicant’s evidence that he had an extensive history of work at Loy Yang A. Indeed, the Applicant commenced his employment with what was to be the first operator of Loy Yang A, the then State Electricity Commission of Victoria, in 1971 at age 17 - more than a decade before Loy Yang A became operational. The Applicant progressed in his career to the level of Assistant Unit Controller Level 12. His belief that, at age 71, he was likely the oldest operator at Loy Yang A was not challenged. He described in his initial witnesses statement that his employment at Loy Yang was “a great source of life meaning”3 for him. In oral evidence, the Applicant said that when his union reps informed him of their view that he was facing dismissal, he was: [2026] FWC 119 3 “…beside myself with, what do I do with the rest of my life? Like, this is everything to me. Everything”.4 [9] The Respondent did not seriously challenge this aspect of the Applicant’s evidence. It is self-evident that a 71 year old man residing in regional Victoria who has spent more than the last four decades of his life, working exclusively in coal fire power station operations faces challenges in securing alternative employment. [10] There was also no challenge to the Applicant’s position that one of the financial impacts of being dismissed related to the size of the pension he would receive from the defined benefits superannuation fund he was a member of, given that two of the inputs that determined the size of that pension were his years of service and final annualised salary, in a context where his wages were determined by enterprise agreements that generally provided for pay increases during their period of operation.5 Mr Smith and Mr Pedemont [11] Both Mr Pedemont and Mr Smith provided support to the Applicant in connection with the investigation of the matters alleged against him, consistent with their roles in the Mining and Energy Union, which the Applicant was a member of. Mr Smith is the District President of that Union, and gave evidence about a meeting he attended with the Applicant and others on 11 April 2024. [12] Mr Pedemont is the Lodge President of the Union as well as a delegate and is employed as a Unit Controller at Loy Yang A. He gave evidence about operational matters, the allegations against the Applicant and the meeting on 11 April 2024. Mr Brown [13] Mr Brown gave evidence for the Respondent. He is an Assistant Unit Controller and the other half of the pair assigned to complete the task that led to the allegations being made against the Applicant. Mr Brown reported the incident, first informally then formally. He gave evidence about the incident, the actions he took in reporting it and assisting with the investigation, and operational matters. Mr Jilbert [14] Mr Jilbert is the Head of Station Production of the Respondent. He was not an employee of the Respondent at the time of the incident. He was however tasked with investigating it. His evidence was focussed on the investigation and the events occurring since. Mr Van Der Welden [15] Mr Van Der Welden was a shift manager for the Respondent, having previously also worked as a Unit Controller and Assistant Unit Controller. At one period in his career at Loy Yang, the Applicant was Mr Van Der Welden’s supervisor. Mr Van Der Welden was not the Manager of the Applicant’s shift at the time the incident occurred. He did however contribute to the response to the incident. He gave evidence about that, as well as operational matters. Mr Clark [16] Like Van Der Welden, Mr Clark was a shift manager and had previously worked as a Unit Controller and Assistant Unit Controller. He had worked with the Applicant in each of [2026] FWC 119 4 those capacities. He was the shift manager to whom Mr Brown first raised concerns about the incident. He gave evidence about the raising of those concerns and the steps which followed. Ms Van Der Merwe [17] Ms Van Der Merwe is the Head of People and Culture for Respondent. She gave evidence about the Applicant’s employment history and some interactions she had with him, and the process leading to the termination of the Applicant’s employment. Her evidence was primarily related to whether it would be appropriate to reinstate the Applicant in the event his dismissal was found to have been unfair. Reason for dismissal [18] The written notice provided to the Applicant on 27 March 2025 stated the reason for the termination of his employment as follows: “….the substantiated allegations constitute serious misconduct and amount to a breach of your employment obligations. Specifically, you failed to follow the correct procedure as outlined in the Plant Operating Manual Volume 9 Section 3, putting others at risk of harm which could have led to a highly unsafe situation, electrocution or death (as outlined in clause 3.1.6 Critical Procedures, Plant Operating Manual Volume 9). Further, your conduct breached AGL’s Code of Conduct, in particular the following commitments: (2) We observe the law, our obligations, voluntary commitments and internal standards - Perform all work safely, adhere to safety requirements and use all relevant personal protective equipment. (6) We look after our people and encourage our People to Be Safe. Be Supportive. - Observe all policies that are intended to safeguard your health and safety in the performance of your job. Accordingly, I have decided that the breaches of the relevant operating procedure and Code of Conduct warrants termination of your employment. You are expected to model the required conduct and behaviour expected of an Assistant Unit Controller and adhere to AGL policies and procedures which require you to perform your job safely and in accordance with AGL operating procedures, to keep yourself and others in the workplace safe. You have not acknowledged the potential seriousness of your actions. Unfortunately, due to the seriousness of the matters and your lack of acknowledgement and contrition, I have lost trust and confidence in your ability to undertake your duties safely” 6 [19] In its written submissions, the Respondent elaborated somewhat on the theme raised in the final sentence above by contending that valid reasons could be found as follows: [2026] FWC 119 5 “…the responses given by the Applicant throughout the course of the investigation into his conduct rendered him wholly unfit to continue in his role. Those responses reflected a changing and internally inconsistent narrative of the incident, and a lack of insight into the seriousness of the conduct which had been found proven against him. Further, they demonstrated an unreasonable, disrespectful and unprofessional attitude toward his colleagues who were simply doing their jobs”7 [20] It was also suggested in the Respondent’s closing submissions at the hearing that the tone of the Applicant’s communications should count against him, having been given warnings about that issue previously.8 The Respondent was, perhaps unsurprisingly given its case on valid reason, opposed to reinstatement in the event the Applicant was found to have been unfairly dismissed. High Voltage Circuit Breakers –Positions, types and procedures [21] It is necessary to descend into some detail as to the various positions that a high voltage circuit breaker (HVCB) might be placed in, the types of HVCBs that were in service at Loy Yang A at the time the events alleged are said to have occurred and how procedures in respect of them have changed. Positions of HVCBs [22] As noted above, the HVCBs in use at Loy Yang A at the relevant time may be moved in and out of specialised cabinets. These cabinets contain the interface to the circuits that a HVCB attaches to. The procedure relating to the movements of HVCBs that was applicable at the relevant time was contained in volume 9 of the Loy Yang A Plant Operation Manual (POM).9 [23] The POM identifies that a HVCB may be in the removed position, the test/isolate position or the service position. When in the removed position, the HVCB is entirely outside of the cabinet. When in the test/isolate position, the HVCB is within the cabinet but not placed so far into the cabinet that it has engaged with circuit interface. When in the service position, the HVCB is pushed back further into the cabinet, such that it has so engaged. The process of moving a HVCB between the various positions, and the associated requirements for doing so, were the subject of a great deal of evidence – which is discussed below. For present purposes, it is sufficient to appreciate that moving a HVCB from the test/isolate to the service position requires the use of a “racking” handle and, it would seem, the application of a degree of physical force due the interaction of internal mechanisms in the HVCB and the cabinet.10 The racking handle attaches to the rear of the HVCB and is used to gradually ratchet it into the service position, by engaging with a series of holes in a racking plate that is positioned on the ground. By a leverage type action, the HVCB moves forward when the handle is engaged into the nearest hole in the racking plate and pulled, such that the lever can then be placed in the next more forward hole in the racking plate. This ratcheting action constitutes the “racking” and is continued until the HVCB is properly located in the service position. [24] There was evidence about the risk of an “arc flash” in association with the movement of HVCBs. Mr Van Der Welden described an arc flash as: [2026] FWC 119 6 “ an uncontrolled electrical explosion that can occur when a fault condition exists. A fault condition is where a short circuit is created to earth or another phase as a result of a fault in the relevant plant or equipment itself, or because of an environmental factor like debris being in the vicinity of the power source, which then causes the power to deviate rather than going from its source through a load and back to its source. Because of the significant electrical potential of an arc flash event, an explosion can be huge and fatal.”11 [25] Mr Van Der Welden also gave evidence that the exposure to risk increased the longer a HVCB was left between the test/isolate position and the service position.12 [26] It is not in dispute that an operator at another Victorian Coal Power Station (Yallourn) had been killed by an arc flash when interacting with a HVCB, however there was some dispute about what had caused the arc flash to occur in that particular instance. It is also not in dispute that there is particular protective equipment designed to protect against injury from an arc flash, including insulating gloves and a face shield. Arc flash rated PPE is required when racking a HVCB from the test/isolate position to the service position. The Applicant explained his understanding of the reason for this requirement in the following way: “Yes, because in the process you're lifting the shutters out of the way so that the – as the circuit breaker moves forward, the three spouts or the three phases on the bus will go through with the three phases for the cable going to the motor will – they will come into contact, and in process, there will be arcing happening between the bus and the spouts for the bus.”13 During the investigation of the incident at the centre of the current matter, the Applicant had relatedly said in writing to Mr Jilbert that: “In the previous 20 – 25 years when I was Racking CBs in or out on my own I never thought of doing so without the Gloves and Mat as I was trained well and fully understood the power involved that would hurt me so badly.”14 [27] Both Mr Brown and Mr Pedemont acknowledged that sometimes the sound of arcing, which they both described as a buzzing type sound, could be heard as a HVCB was close to reaching the service position.15 [28] I understood from the evidence given in this matter that during the racking of a HVCB from the test/isolate position to the service position, the interaction between the mechanisms in the HVCB and the cabinet are such that shutters or doors that cover the electrical interfaces begin to and ultimately fully open, so that the interfaces can then come ultimately together when the service position is reached. . Mr Pedemont had this to say about this interaction: “…if John was to wrap that's SF6 breaker in, it essentially would be opening the bus and cable shutters. So that would be a mechanism that would be restricting that circuit breaker, and then if John stopped, then essentially it would likely – depending on where that racking handle is, would likely have to push the circuit breaker back to the test isolator position, or if you left it in position, you would potentially see that the circuit breaker was in between test isolate and the service position”16 [2026] FWC 119 7 [29] It was not in dispute that if a HVCB had been properly located into the service position, it would lock into that position. However, it was possible that if a HVCB had been moved past the test/isolate position but not fully into the service position, the HVCB could be pushed back somewhat by these interacting mechanisms if the racking handle was released at this point. Mr Brown’s evidence was that this scenario occurred during the incident that is at the centre of these proceedings. I believe him. He says such a scenario was more likely to arise where an SF6 type circuit breaker is used, because it is not as heavy as the air type HVCB, so the force of the incompletely opened bus and cable shutters is more likely to be sufficient to cause movement.17 Types of HVCBs [30] There was no dispute that there were two types of HVCBs that might be subject to positioning in either of the removed, test/isolate or service positions relative to a cabinet. These were referred to as air type HVCBs and SF6 type HVCBs. The distinction is a relevant one because there are some differences in their physical features and the procedures said to apply to them. In particular, the SF6 type HVCB has a “mini circuit breaker” on the front of it, whereas the air type has no such feature18, and whilst an SF6 type HVCB may have either a locking handle or a foot pedal to assist in its positioning, an air type HVCB would only have a foot pedal.19 Change in procedures [31] The Applicant was unwilling to accept that the requirements to conduct checks during the operation he was tasked to perform with Mr Brown had anything to do with safety. I interpret the Applicant’s evidence below in light of other evidence given about this issue and the contents of the POM. The POM relevantly provides as follows: “3.1 Introduction This document encompasses the Station Electrical Operation Section 3: Switchgear. All procedures have been assessed for Electrocution and Arc flash risks” “3.1.6 Critical Procedures During the Arc Flash Risk Assessment process, it was outlined that in some higher risk procedures that any deviation from the agreed procedural steps could lead to highly unsafe scenarios. Deeming the selected procedures as CRITICAL and determining that a second HV authorised operator be present was agreed as the control measure” [32] The procedure that Mr Scully was tasked with on the day – restoring a HVCB from the removed position to the service position, is dealt with in section 3.3.4.6 of the POM for an air type HVCB breaker and 3.3.5.8 for a SF6 HVCB. Both are marked as “critical” procedures. There was an acknowledgement that it is possible to restore a HVCB (of either type) to the service position by instead sequentially following the procedures for restoring a HVCB from the removed position to the test/isolate position and then the procedure for moving a HVCB from the test/isolate position to the service position, the latter of which was a critical procedure and the former of which was not (irrespective of whether the HVCB concerned was an air type or SF6).20 In that sense, it might have been reasonable for the Applicant to hold the view that [2026] FWC 119 8 the “checking” he was engaged in was not “critical”. But he went further and seemed to suggest that the risk of an arc flash at all was non-existent unless a HVCB had been modified: “What, in your words, is the purpose of conducting those checks?---To make sure that the circuit breaker can be racked in all the way to the service position without, for example – for example, there's no foreign materials in the – in it. Tools being left in the compartment. There's no chance of anything interfering with the future operation of the circuit breaker. Yeah, so. Something's left in the cubicle or if there's damage to the front of the circuit breaker for instance, and it's racked (indistinct)?---I would say you could jam it. You could stop the racking process, which would mean having to withdraw it and clear it. So you're killing two birds with one stone on a thing. You're clearing the way for the circuit breaker to enter without impedance from foreign materials. Whether it be rubbish or whether it – you know, old materials that have been left there or tools. And what's the risk that arises from those foreign materials being in there? It's an electrical overload, isn't it?---Sorry? An electrical overload?---I believe the circuit breaker would not allow entry with those materials being there. I've never tried it, but it's a pretty tight space. (Indistinct) tolerances considering. And the bus bar behind has got an air gap between the bus bar and the shutter. And the shutter is there and while the shutter is closed, there is no chance of anyone or the circuit breaker touching the bus bar unless that's lifted out of the way with those – that photo of the compartment showing the linkages involved on both sides to lift the bus bar and lower the – lift the bus bar shutter and lower the cable shutter. I suppose what I'm getting at is the purpose of these prior checks being conducted is really to prevent or limit the risk of an arc flash occurring, isn't it?---I've never heard of an arc flash happening, except the issue that happened with the Yallourn death. The Yallourn W station. They had modified the permit – sorry, the circuit breaker, and the operator followed procedure to the tee. And the modification is what caused the event. It wasn't the manufacturer's design. Some engineer at W station thought they'd get a promotion if they could save time in accessing. And that modification cost the man's life. I'm still annoyed that – angry that that happened. So is your evidence that you don't understand these prior circuit breaker checks to be safety related?---Yes. Yes. For a job to go smooth, you've got to be focused. And they would detract from your focus on the job at hand. Like the point about whether they were locked or unlocked, the bus and cable shutters. Once says, red stop the procedure, and the other says, green light go. And if you drove to work today, you'd understand that going through intersections. Everyone practises safety. I see that the way the plant has proven itself for decades, hundred years of development, they're safe. In that they're designed, through experience of not allowing that unsafe condition to arise. But you don't see initial circuit breaker checks as calling a part of that?---Yeah, so I do in that it gives a person confidence and focus on the job in that everything is lined up [2026] FWC 119 9 that it will go smooth. There won't be any half measures, withdraw, half measure, withdraw. It will be a matter of step, step, step on the way in. But it's not so much related to the potential for an arc flash, it's more about the smoothness of the job is what you're saying?---Yes, it always has been that. The arc flash issue they have introduced as a result of the death at Yallourn, and they haven't proven that it was the operator's fault or the actual circuit breaker before it was modified; it wouldn't have happened but for the modification.”21 [33] The above is consistent with the Applicant’s response on 23 April 2024 to an invitation to respond to its investigation findings, dated 16 April 2024. In the Response, the Applicant stated, inter alia: “I do note that my record of ‘Certifications list’ you gave me Brendan does not include any HC or LV CB Racking procedures in the 42 years I have been at LYA. The nearest to any Racking Procedures was “Arc Flash Awareness – Health, Safety, Environment, completed 13th August, 2018, some 5 years and 8 months ago as a result of the death of an Assistant Unit Controller at Yallourn W Station due to a MODIFICATION. My understanding is this Assistant Unit Controller did not breach any CB Racking Procedures. Due to the CB MODIFICATION had two Operators been present there would have sadly been two fatalities. Modifications do not endure the same scrutiny Commissioning Plant undergo where all work groups are directed to give their perspective of the new installation being complete and SAFE before payment is made. MODIFICATIONS are ticked off by a few Senior Management and for up front as an in house budget with Negligible Scrutiny. No one was sacked or sent to jail for that Industrial Manslaughter. To be seen to be doing something, AGL introduced a policy that CB racking is to be done with 2 operators to do the job 1 operator had done for the previous 100+ years. True to AGL’s values of Integrity AGL did not increase manning to allow for these extra duties (e.g. changing the 10 hour 1x7 job to do a 12 hour 1 x 7 job). Before this new operating process was introduced I had Racked CBs on my own using my good training process for some 20-25 years. However, I prefer the company of another operator as it now allows further interaction with a team member”22 [34] Further confirmation of the Applicant’s views in this regard are demonstrated by the following exchange: “You've done the jobs like this by yourself for decades?---Yes. Without needing a second man there, yes?---Yes. Which involved doing all of the checks?---Yes. If you followed the procedure that is, and then racking the circuit breaker in yourself; correct?---Yes. [2026] FWC 119 10 Yes. And you considered this doubling up, as you put it, to be unnecessary?---No, I just think management have a bit of explaining to do that they haven't told me. It's like I've been shut out, isolated, and not given their justification or, you know, the arguments that they would put up before a court, yes, it's necessary to decrease our numbers on the shop floor in the unit control room when things are busy. Implied in what you've just said is that you don't agree with the policy change. Is it fair to say that you - - -?---I don't understand it. It's not that I disagree with it. I enjoy going with other people out on the job. It's a novelty, and I enjoy my work colleagues very much. I am – to cut it short, I find it not as lonely at work as what it is at home. That's why I work a lot of overtime. It's because it allows me to socialise with my work colleagues but, yes, to – I'm - - - Sorry. Do you see the benefit in the policy changes being purely social from your perspective?---Well, without them being explained, I took it as that. When I did it with other people, they never told me that there was additions being added, you know, in the evolution of the process that one operator was - - - Insufficient?---Yes. Right. And you thought it was sufficient. That's the way that you've been doing it for several decades?---That's right, yes, successfully and safely.”23 [35] It is clear from the above that Applicant believed that the presence of another operator when racking in a HVCB was entirely unnecessary from a safety perspective.24 It is to be noted however that the Applicant did seem to acknowledge, as set out in paragraph [26] above, that the requirement for arc flash rated PPE when racking a HVCB into the service position was rationally based. This gives rise to the possibility that some of his other commentary about the safety risks associated with the procedure were unduly defensive. I set out the full exchange referred to in paragraph [26] between the Applicant and counsel for the Respondent below: “It's also the case there's always been a requirement that to rack a service breaker – sorry, a circuit breaker from the test isolate position to the service position, you must be wearing arc flash rated PPE; right?---Yes. Yes, because in the process you're lifting the shutters out of the way so that the – as the circuit breaker moves forward, the three spouts or the three phases on the bus will go through with the three phases for the cable going to the motor will – they will come into contact, and in process, there will be arcing happening between the bus and the spouts for the bus.”25 Key events The incident on 24 July 2023 [36] The only persons with direct knowledge of what happened during the incident on 24 July 2023 are the Applicant and Mr Brown. The Applicant’s version of events is contained in his two witness statements and in the written responses he gave during the investigative process. Mr Brown’s version of events is provided in his witness statement, an e-mail and a written report which he made. Both men were cross examined. [2026] FWC 119 11 [37] The Applicant says that he performed the task of restoring an isolation certificate for a conveyer known as A22 with Mr Brown on that day. He notes that such a task had historically been accomplished single handedly but had become a two person job “in the past few years”.26 The Applicant states that he had not worked with Mr Brown before. When they arrived at the electrical annex where the relevant plant was located, the Applicant says both he and Mr Brown were wearing the station standard PPE. At that point the Applicant says there was a discussion with Mr Brown about which of the pair would do the racking, and Mr Brown agreed to take on that role. Mr Brown accordingly went to the PPE cabinet to retrieve the specialised PPE required for the racking task, which included thick rubber gloves, while the Applicant went to the A22 cabinet. The Applicant says that the HVCB was situated outside the A22 cabinet, the cabinet was closed with a clamshell cover and lock over it. He says he removed the lock and clamshell and proceeded to undertake the required checks of both the cabinet and the HVCB. Having completed this, he then pushed the HVCB into the test/isolate position. The Applicant says that Mr Brown had not joined him at the A22 location by the time these tasks had been completed, and states that Mr Brown was at the PPE cabinet where he would not have had line of sight of what the Applicant was doing. Thereafter, the Applicant fitted the racking handle so that Mr Brown could perform the racking. He says that Mr Brown did so and performed other tasks necessary to complete the job, including reporting to the Unit Controller that the task had been completed. The Applicant said that Mr Brown stood as required on a rubber insulation mat when performing the racking, and that the Applicant had fetched the mat and had checked that it had been tested prior to its use.27 [38] As will be recalled, the conduct alleged against the Applicant is essentially that he did not perform the checks that he was required to perform and that he in fact did do the racking himself, and did so without wearing the appropriate PPE. The Applicant’s version of events as summarised above is inconsistent with such conduct occurring. In the course of the investigation, the Applicant made some statements about circumstances that would make the version of events alleged against him inherently unlikely to have occurred. These included that he would not have done the racking himself because there were no rubber insulation gloves available that could fit his hands,28 that the checks could be performed quickly and were performed quickly while Mr Brown could not see him29 and that it would have been irresponsible for Mr Brown to have completed the racking process if he thought the appropriate checks had not been done beforehand.30 The Applicant’s evidence was consistent with an understanding that the task of returning a HVCB into position in a pair involved one person doing the racking while the other person performed other parts of the task. [39] Mr Brown’s version of events is that he was approached by the Applicant to accompany him to restore the A22 HVCB. He described the Applicant as appearing rushed when entering the electrical annex. Consistent with the Applicant’s evident understanding of the different functions of the two operators, Mr Brown says he went to the PPE cupboard to get the PPE required for racking because he saw the Applicant proceed directly to the A22 cabinet area and therefore assumed the Applicant would be doing the preparatory work and he himself would be doing the racking.31 Mr Brown says ordinarily he would check and put on the PPE while at the PPE cabinet, but on this occasion he took it with him to the A22 cabinet area because he was concerned about the Applicant’s rushed appearance.32 The items Mr Brown says he obtained from that cabinet were a face shield, insulation gloves and an insulation mat. When he arrived at the A22 cabinet area, Mr Brown said the lock and clamshell had been removed from the cabinet and that he witnessed the Applicant open the door to the cabinet, remove the dust cover [2026] FWC 119 12 from the HVCB, and start to push the HVCB toward the cabinet. Mr Brown says he asked the Applicant to stop, because he did not see the Applicant perform any checks and believed he could not have done so, given that he had only been out of sight for no more than 20 seconds. Mr Brown says he then competed the checks himself before saying to the Applicant words to the effect of “Its good to push in”. In response to this, the Applicant placed the HVCB into the test/isolate position and fitted the racking handle, as expected. However, Mr Brown says the Applicant then started to use the racking handle to rack the HVCB past the test/isolate position, then remove the handle and start to carry it back to where he had got it from. Mr Brown says the HVCB then started rolling back toward the test/isolate position. Mr Brown was of the view that what he had seen was something very dangerous, that left him “speechless” and “blown away”. Mr Brown said he yelled at the Applicant and asked for the racking handle, which he then used (after finishing putting on his PPE) to rack the HVCB into the service position, and rang through to advise the job had been completed. [40] It is not contentious that once a HVCB is properly located in the test/isolate position, a step additional to racking is required to move it beyond that position. This is because the HVCB will automatically lock itself into the test/isolate position, and will require that lock to be released before being moved again. There are different locking mechanisms: an SF6 type HVCB may have either a handle operated lock or a foot pedal operated lock33 whereas an air type HVCB would have only a foot pedal.34 Whilst the Applicant believed, as at the date of the hearing but not previously, that the HVCB in use on the day on question was an air type HVCB, Mr Brown said it was an SF6 type, but could not remember which type of locking mechanism it used.35 Mr Brown says he did not see the Applicant release the lock, but said it can be done in a second as part of a fluid motion prior to actually racking a HVCB forward.36 [41] The accounts of the two gentlemen are clearly at odds. One thing they do agree on is that neither of them followed one particular procedure that they ought to have followed, which is to take a physical copy of the procedure with them while performing the task. Mr Brown does not offer an explanation for this. He admitted that the failure to take a printed copy with him was a breach of the critical procedure,37 but notes that he “know the steps and checks very well”.38 The Applicant admitted that he did not have a “check sheet” with him when the task was undertaken, and attributed this to it being a new requirement that he had not been informed of and that other operators he worked with hadn’t used check sheets either.39 However, as the Applicant was taken to in cross examination, the requirement to print critical procedures was a requirement of both the 2023 and 2018 versions of the POM,40 thus not a new requirement by any measure. [42] Another matter that is clear is that, irrespective of which account is to be preferred, it must be accepted that the required checks were performed, either by one of Mr Brown or the Applicant, or by both in combination, prior to the completion of the task. It may well be impossible to determine which checks, if any, the Applicant missed, but one way or another the team assigned to the task managed to complete them.41 [43] Cross examination explored the inconsistencies in the accounts. a) Mr Brown disagreed with the Applicant’s revised view (expressed for the first time in his oral evidence42) that the HVCB that formed part of the incident in question was an air type HVCB.43 [2026] FWC 119 13 b) Somewhat inconsistent with the notion that there were no gloves available that fit the Applicant’s hands, the Applicant accepted in cross examination that when performing a restoration task, there was a fairly even split of him doing the racking compared to only checking.44 The Applicant later conceded in cross examination that the gloves that were available at the workplace at the time of the incident included sizes that did fit him and that the issue of the gloves being too small was an issue addressed some time earlier.45 In connection with this, he sought to correct his earlier evidence that it was a relatively even split between him doing racking work versus preparatory work when restoring a HVCB from the removed to the service position. c) The Applicant said during cross examination that Mr Brown went directly to the A22 cabinet after entering the annex and had a conversation with him about who was to do the racking, before Mr Brown went to the PPE cabinet. 46 Mr Brown maintained that he went straight to the PPE cupboard.47 d) The Applicant explained that the decision to divide the work between Mr Brown doing the racking and himself doing the preparatory tasks was taken at his own initiative, to protect the insulating gloves Mr Brown would be wearing from unnecessary damage.48 e) Mr Brown disputes that he had a conversation with the Applicant about who would do the racking and who would do the checking, and said that he regretted not having such a conversation because “I should have had that conversation and this wouldn’t have happened”.49 f) The Applicant accepted during cross examination that while interacting with the HVCB and the cabinet, he was not focussed on Mr Brown and did not know how long Mr Brown had been in a position to observe him,50 and accepted that Mr Brown may have observed at least some of what he had been doing.51 Further, he did not know whether Mr Brown was still putting on his PPE when Mr Brown arrived at the A22 cabinet.52 g) Mr Brown accepted that many of the checks that were required to be done of the A22 cabinet could have been done, and were expected by the relevant procedure to be done, with the door to the cabinet closed – the inference being that even if he had arrived at the A22 cabinet and witnessed its door being opened by the Applicant, those closed door checks (or at least some of them) could have already been performed at that stage. h) The Applicant maintained that Mr Brown never told him to stop when he was rolling the HVCB toward the cabinet, never told him that it was “good to push in” and that he never racked the HVCB.53 i) The Applicant accepted that his recollection of who collected the rubber insulation mat shifted during the course of the investigation and that he gave inconsistent accounts of this.54 [44] The Applicant suggested that Mr Brown had fabricated his account of the incident in an effort to seek a promotion.55 Mr Brown says that, on 25 August 2023 in the course of an interview for a promotion he was asked about difficult interactions in the workplace and that he raised the incident with interviewing panel members. Thereafter, he was asked by Mr Griffin (then Acting Head of Station Production and a member of the interview panel) to make a formal report about the incident using the “MyHSE” incident management software.56 It is not apparent how disclosing an incident of this nature would assist in advancing a promotion, particularly in circumstances where the request from Mr Griffin signified that the action that Mr Brown had taken in respect of it had not been sufficient. In any event, Mr Brown was not successful in securing the promotion sought.57 [2026] FWC 119 14 [45] Mr Brown’s evidence was illuminating as to the divergence between strict or literal adherence to operating procedure and practice, and made concessions in cross examination. In particular: a) Trained operators will perform checks that are not explicitly stated in the procedure because they are inferred. An example was given between a check Mr Brown had claimed was necessary under the procedure, being “ensure the elephant’s trunk is not damaged or obstructing the path for the CB”. This was not stated in express terms in the policy, but was said to be inferred by the stated requirements to ensure that the cubicle was free of obstructions. b) Whilst the procedure stated that it was necessary to check that the earth switch was locked in the off position, it was also necessary in Mr Brown’s view to check that the switch was not applied, which in his view was the more important issue given the potential for danger. c) Mr Brown said it was necessary to confirm that the HVCB spouts are free moving and not damaged. This is not expressed explicitly in the policy, but in his view was inferred in the stated requirement to ensure that the HVCB is in a serviceable condition. d) Mr Brown readily conceded that it was not correct to say, as he had said in his statement, that the above three matters were required in the relevant procedure, being section 3.3.5.8 of the POM, and that the procedure as written was not a complete map of the required task. e) Whilst Mr Brown stated that the checks required before moving the HVCB from the removed position to the test/isolate position could be done “in no particular order”,58 he accepted during cross examination that the procedure at section 3.3.5.8 of the POM required them to be conducted sequentially. f) Mr Brown’s evidence was also consistent with there being some flexibility in practice concerning who, in the team of two, could perform which checks.59 g) Mr Brown gave evidence that he, with assistance of a colleague, gave a demonstration to Mr Jilbert as to how a HVCB ought to be moved from the removed position to the service position (as Mr Jilbert had been tasked with the investigation of the incident but was not an operator himself). Mr Brown said that, in doing so, the demonstration adhered to section 3.3.5.8 of the POM but he accepted that the demonstration was misleading because that is not the way in practice that the procedure is commonly done.60 [46] I digress for a moment to note that Mr Jilbert (who conducted the investigation of the incident which I deal with in paragraphs [70] - [85] below) indicated that he was aware that Mr Brown didn’t have a print out of Section 3.3.5.8 of the POM when performing his work with the Applicant on the day in question, and that this did not result in any investigation of Mr Brown.61 Relatedly, Mr Pedemont (whom it will be recalled is a Unit Controller) gave evidence that he understood that many other operators also did not take printed copies of the procedure with them when performing such work.62 [47] For reasons that I expand upon below, I prefer the account of Mr Brown as to the events on the day in question. The Applicant’s evidence was at times evasive, defensive, rambling and inconsistent. I considered Mr Brown to be a reliable witness who gave a compelling account and made appropriate concessions. When Mr Brown was taken in cross examination to his description of witnessing the incident as “one of the more dangerous things I had seen or [2026] FWC 119 15 experienced that was in our control”,63 his demeanour was of man who genuinely recalled experiencing fear. His witness statement refers to a period of “mulling over” what he should do about the incident and discussing it with the Applicant and colleagues (the Applicant denies having such discussions with Mr Brown). He was cross examined about this and was asked why, if he had truly seen something so dangerous, would it not have been prudent to act more quickly, and it was pointed out that there was an inconsistency between “the sort of horror you appear to describe in your witness statement” and the actions he took immediately after the incident.64 But throughout this exchange and the ensuing discussion, Mr Brown appeared genuinely conflicted about what the appropriate course of action was - consistent his witness statement.65 He denied that his version of events was a fabrication,66 and I believe him. [48] I digress a moment to refer to some other evidence concerning the movement of HVCB’s. As noted, the task at hand was to move a HVCB from the removed position to the service position. In the case of an SF6 type circuit breaker, this can be achieved by either following the POM procedure 3.3.5.8 or by sequentially following the POM procedure 3.3.5.6 “Racking in a CB from removed to the to the test isolate position” and 3.3.5.7 “Racking in a CB from the test / isolate position to the service position”. I was left with the impression from the evidence that it would be unusual for a HVCB, particularly a SF6 type, to be put in or left in the test/isolate position. The Applicant said that with the newer (SF6 type) HVCBs, the cabinet door cannot be closed with the HVCB in the test/isolate position, and that there are instructions to remove them completely to ensure that computer systems can properly recognise their status.67 Mr Van Der Welden, who had been worked at Loy Yang since 2009,68 was able to give some examples of when a HVCB would be moved to or from the test/isolate position but did not comment on the regularity of this occurring. However, Mr Pedemont, who had worked at Loy Yang since 2011,69 was cross examined about when a HVCB would be moved only to or from the test/isolate position and said that he had “never seen it happen in the time that I’ve worked there”70 and could provide no explanation as to why it might be done.71 If the Applicant’s experience of moving a removed HVCB into the test/isolate position was as rare as Mr Pedemomnt’s, this may have coloured his understanding of what Mr Brown was asking him to do when he said “its good to push in”. Immediate aftermath of the incident – July-August 2023 [49] I have referred earlier to Mr Brown feeling conflicted as to what ought to be done about the incident. The conflict included balancing the severity of the incident with the potential consequences for the Applicant.72 Mr Brown said he spoke with his colleagues about what he should do about the incident and “had mixed reviews on what I should do”.73 Mr Brown worked two further shifts after the incident and then took a period of pre-planned leave until 20 August, having not reported the incident or otherwise decided what action he would take in respect of it.74 [50] Mr Brown said he next saw the Applicant at work on 22 August and had a discussion with him about the incident. The Applicant denies such a discussion took place.75 Mr Brown says that he said to the Applicant that he thought the Applicant should have seen that he (Mr Brown) was intending to the do the racking, and also talked about the failure to conduct checks or rack the HVCB in properly. Mr Brown said that the Applicant said words to the effect that he had been “doing it the old way for 30 plus years and it’s what I’m used to doing”, and Mr Brown told him that’s not the way it should be done anymore and that he needed to follow training and current procedures. Mr Brown said that the Applicant told him he was sorry and [2026] FWC 119 16 thanked him for talking to him calmly about it “and for not going off at him”.76 I believe Mr Brown’s account of this conversation. [51] Mr Brown said that later that day he discussed the incident with Mr Clark, the shift manager. He says that he mentioned in that discussion that the Applicant had tried to rack the HVCB in without wearing the correct PPE and that he hadn’t racked it in properly, and said that he (Mr Brown) had been “really concerned about it ever since”. Mr Brown said that Mr Clark asked him to send him an e-mail, and he agreed to do so. Mr Brown did send an e-mail as discussed, but not before having (on his version of events) a further discussion with the Applicant the following day, 23 August (which the Applicant denies).77 In that discussion, Mr Brown said he informed the Applicant that he had spoken to Mr Clark about the incident and asked the Applicant if he would be interested in doing some refresher training with him in the afternoon, and the Applicant said he would like to. Mr Brown says the training was however unable to occur that day due to workload. At 10:00am on that day, Mr Brown sent an e-mail to Mr Clark, which is produced as an annexure to Mr Brown’s Statement. The e-mail says nothing of any checks not being performed and is expressed in language that is guarded and less direct than might be expected, to say the least. It says in part: “During this work, John didn’t follow the procedures that we have on site regarding correct PPE with what appeared to be some disregard to these procedures…. I had a one-on-one conversation…John listened to me and stated that its been a while since it happened, and he couldn’t recall the details. He apologised for the concern it caused and said he would from now on be taking the procedure with him to ensure he complies with our process. This process has been amicable… I have again spoke to John today letting him know that I have spoken to yourself about this situation. I suggested to him that we complete some training this afternoon to refresh the steps in the procedure for racking in and out of CBs. John is happy to complete this also. So I have spoken with Jim (Service UC) about the availability of using a 6.6kv CB. This should be suitable”. [52] What Mr Brown was evidently doing in this e-mail to Mr Clark was presenting him with a solution, rather than a problem. The Applicant was taken to this e-mail and again denied that discussions with Mr Brown had occurred, even in the face of him being directed to the implausibility of Mr Brown being dishonest in an e-mail to his Manager in circumstances where such dishonesty would be quickly exposed.78 I believe Mr Brown’s evidence that the discussions with the Applicant did occur. [53] I am also of the view that Mr Brown was engaged in effort at this point to address the issue while causing minimum harm to the Applicant. Under questioning from me, Mr Brown agreed that his e-mail to Mr Clark was “playing it down a little bit” and said that the reason for this was that he knew how severe the outcome could potentially be for the Applicant.79 He also agreed that he was hoping to get the Applicant some refresher training.80 Under cross examination he agreed that there was a difference between what was written down about the incident at this time compared what was said about it in conversations, and agreed with a proposition put by me that there was a tacit agreement with Mr Clark about how explicit the written complaint about the incident would be.81 [2026] FWC 119 17 [54] Mr Clark’s evidence was broadly consistent with Mr Brown’s evidence as to the relevant discussions occurring in August. He confirmed that Mr Brown spoke to him on 22 August and took a note of what was said, which he annexed to his statement.82 That note relevantly said “John failed to put on the appropriate PPE and did not complete the required pre-checks before racking an a 6.6kv CB” – an obviously more direct account than that given in the e-mail that followed a day later as referred to in paragraph [51] above. Mr Clark confirmed that Mr Brown had told him that he wanted to speak to the Applicant before further steps were taken, and Mr Clark also confirmed that he requested that Mr Brown send him an e-mail and told Mr Brown to have a conversation with the Applicant. Mr Clark’s position at that time was that he “..wanted to do an initial follow up with John [the Applicant] before determining whether anything needed to be put in the system and formally investigated”.83 [55] As to the substance of the discussion between Mr Clark and the Applicant, Mr Clark says that he spoke to the Applicant “about Greg’s concerns” and the Applicant had told him that he wasn’t up to date with current operating procedures because he had been on extended breaks from work and hadn’t completed any refresher training thereafter.84 In elaborating on that conversation in oral evidence, Mr Clark said he “believes he raised the concerns about completing required pre-checks to the safe state of a circuit breaker and the subsequent racking in of a circuit breaker in an attempt to restore the plant”.85 Mr Clark said during cross examination that he had agreed with the Applicant that the Applicant would send him an e-mail about the incident in which the Applicant would request some refresher training.86 I explored further with him the notion that the initial intent was to attempt to deal with the incident less formally, in the following way: Can I put a proposition to you, and counsel can ask any questions arising out of this. What do you say to the proposition that between Mr Scully and Mr Brown and yourself, there was a disjuncture between what was discussed and what was written down with the intention of perhaps allowing this matter to be dealt with less formally than it eventually was dealt with?---The intent at first was to look after both Mr Scully and Mr Brown in this instance to give them an opportunity to have a conversation at a peer level, whilst also trying to fulfil my duties as a leader in that sense. Yes?---So I did have that conversation and wanted them to have a conversation at a peer level whilst – so that they were all on that understanding, and whilst I was raising it in the background, but it hadn't been formalised. So I believe I was collecting information but not performing an investigation. At some point it snowballed into something more formal?---Quite rapidly. Yes?---Is that because of actions that you took reading Mr Scully's somewhat critical message in August about training opportunities? Is that something that changed your attitude to the matter?---That changed my attitude in a safety aspect of Mr Scully being able to perform his role, and it did cause me to raise to my leadership in a more rapid response and get a more certain investigation underway. And then I can't really speak on the behalf of Mr Griffin, after raising it to him, and what got him in a position to get it into the formal state, yeah. [2026] FWC 119 18 I mean, essentially Mr Scully had a couple of options in his email, didn't he? He had – I'm terribly sorry, I mean accepting – let's accept for a moment the version of events or a version of events similar to what Mr Brown has put has occurred. Mr Scully has a couple of options at that point. He can say, 'My goodness, I'm terribly sorry about that. I got all confused. I'd really like some more training. I'm sorry I put anyone at risk. Can you please help me?' Or he could have said, 'Well, you know, I don't think I've done anything wrong and if I have done something wrong, it's because you blokes haven't trained me properly and it's all your fault'?---Yeah, that's correct.” [56] It appears that the Applicants “somewhat critical message” referred to above was one of three developments that led to the situation escalating, the other two being the Applicant’s verbal response to Mr Clark and Mr Brown’s discussion of the incident during a promotional interview on 25 August. The Applicant’s August e-mail [57] The Applicant’s e-mail was dated 25 August 2023 and was the subject of some lengthy exchanges at the hearing. I refer to it as being somewhat critical for multiple reasons, including that when referring to senior management, the expression “senior mismanagement” is used instead; it suggests that this group of “mismanagement” have “…no idea of the extensive duties and responsibilities LYA Operators carry in their everyday and every night work, or is malicious in its intent”; and refers to the apparent absence of copies of operating procedures in the electrical annexes as “cost cutting” that is “subprofessional at best or a malicious game of gotcha at worst”.87 The Applicant’s attempts to explain the contents of that e-mail were damaging to his credibility. In his witness statement, the Applicant had said that “in or around mid to late August 2023”, his shift manager (Mr Clark) had spoken to him about what he described as an “unspecified claim” that Mr Brown had “never saw me make some checks”. He says he told Mr Clark he would request some refresher training, and subsequently made that request.88 In his reply Statement, the Applicant continued to assert that Mr Clark’s concern as he understood it was about “some checks” without elaboration. He says that he “assumed” from what Mr Clark had said to him that “..this was a reference to me not checking Mr Brown’s PPE, which was the only thing I could think I hadn’t done. However it is not actually the responsibility of the second person to do this, it is Mr Brown’s responsibility”.89 There was cross examination as to the proposition that the Applicant understood the concern raised with him went beyond mere checks and that his response to it at the time was consistent with him having that understanding. The Applicant was referred to the e-mail addressed to him from Mr Clark of 24 August 2023, asking him “…please get your response to me tonight regarding our conversation about the HV racking incident that occurred”. The Applicant was also referred to the response he in fact gave, which commenced with the sentence “Recently a work colleague has expressed his concern of my actions and lack of actions while racking in a 6.6kV CB”90 (emphasis added). He ultimately maintained, circuitously and in the face of a caution from me, his denial that he knew part of the issue of concern related to anything other than “some checks”: “What I'm asking you about at the moment is why would you say that, 'Concerns had been expressed about your actions and lack of actions'?---Because I was trying to cover all bases. I was trying to use his concern to allow the – Brad Griffin who was the operations manager then, the reason to justify giving me refresher training. I'd suggest to you that a concern about your lack of actions, light well cover, failure to conduct some checks, well – reference to concern about your lack of actions might refer to [2026] FWC 119 19 the failure to conduct some checks, okay?---Yeah. Well, what you're saying here, Mr Scully, is that what had been told to you, I suggest by Greg and Richard, but you say just by Richard, was that you'd failed in two ways. One was your lack of actions in failing to conduct the appropriate initial checks. The other way were your actions in racking in the circuit breaker without the appropriate PPE. Isn't that right?- --Those – all my checks were done in accordance with the – what was required. I put to the circuit breaker to the test isolator position, and I was responding to a very vague claim that they weren't happy – they were concerned about me – hoping that my wording would allow – or virtually force – put the ball at the foot of AGL, they had to give me refresher training, and I haven't received refresher training for about 10 years. And that means it's the – each unit now is different from the other and it's unfair to expect a person in our job to do our job without refresher training. You'd understand a pilot that goes on extended leave. I understand your point. The point that I'm really making with you is the explanation you've given about trying to cover the field doesn't really make sense unless that you had been told is more than that you're saying in your evidence to the Commission now. Isn't that right?-- -Then it doesn't make sense. THE COMMISSIONER: This is a very important exchange, Mr Scully, because you don't want to – I need to be sure that you understand the questions that are being asked of you at the moment. One proposition is that you're not quite understanding the question and that confusion is coming across as being evasive. The other is that you are being evasive, and we want to be very careful about what conclusions we draw about this exchange. So is it possible maybe, Mr Garozzo to ask in a very clear way a question concerning – well, what you're putting to him about what his state of knowledge was concerning the criticisms of him at the time he wrote that message. Just so that I'm not left in any position as to, is he misunderstanding the question or is he understanding the question and not answering it. MR GAROZZO: Yes. What I'm suggesting to you is that you knew that what Mr Brown has reported was that you had done two things. One, failed to conduct the initial checks with the circuit breaker. And, two, failing to wear the appropriate PPE before attempting to rack the circuit breaker into service?---I didn't know any of that. Didn't know any of it?---Particularly the story about the gloves. That was only ever put to me 260 days after the event on 8 April. All right (indistinct) say about that. What I'm suggesting to you is that by your refusal to acknowledge – I withdraw that. Your reference to concern that had been expressed about your actions and lack of actions while racking in a 6.6-kilowatt circuit breaker is an acknowledgement by you that that's what you had been told of those two things, those two aspects?---No. I wrote this, what 4.50 am and it wasn't proofread by anybody, and while racking in a CB. Well, I never racked in a circuit breaker. I pushed it to the test isolator position and so that is inaccurate in itself. Why would you say it?---I don't know why. I – at that stage the whole story wasn't laid out for me. It evolved along the 260 days between the event, the issue happening on 24 July 2023 and, well, 8 April 2024 it had evolved to now include something about racking a circuit breaker past the test isolator position and not wearing the PPE – the arc flash PPE – at that – and that in itself wasn't put initially. But it's been engrossed, you know, it's been embellished along the way to include these so that they could get rid of me.” [2026] FWC 119 20 [58] It is correct that there were delays in putting formal allegations to the Applicant. But the issue as to what he knew or any reasonable person in his position would have known he was being accused of in August of 2023 and the conversations that occurred at that time was the subject of other evidence, which is discussed in paragraphs [50] and [55] above and which I prefer. The Applicant’s own version of events as to the events of August 2023 was fanciful and evasive, including in particular his suggestion that his understanding at that time that the limit of his supposed error on the day in question was that he had failed to check that Mr Brown was wearing appropriate PPE: All right. Here you're admitting that you failed to complete the initial circuit breaker checks that you told me earlier in fact you did do, correct?---No, I was referring to the checks of his racking helmet and the face shield and the each – the left-hand glove and the right-hand glove and the – his underwear and all these other checks that a person does themselves. I didn't go down that road. You're talking about PPE checks?---Arc flash the PPE check. Yes, you say initial circuit breaker checks?---Yeah, again not – this is written before they've mounted the case against me and I didn't realise it would go this far and I was trying to encourage them to justify the cost of refresher training knowing that they had virtually outlawed it as a tried and proven practice that had been adopted through experience years earlier. All right. Let me get this right then. So we've got Greg's evidence that he witnessed you failing to conduct the initial circuit breaker checks, yes? Just asking you whether that's in evidence?---Can you repeat that? Sorry. Greg's evidence is that he witnessed you failing to conduct the initial circuit breaker checks; correct?---I don't know what he witnessed. No, I'm asking you what's in his statement. You've read it, haven't you?---Yes. Yes. And that's what his evidence is, yes?---Yes. We've got his evidence that he spoke with you about that on two separate occasions on the next shift that you worked together; correct? That's his evidence?---That's (indistinct). All right. We've got Richard's evidence that he spoke with both Greg and you about the failure to conduct the circuit breaker checks; correct?---That's in his evidence. We've got Richard's email to Brad about your failure to conduct those checks and the fact that he's spoken with both you and Greg about that; correct? That's in the email that we just went to?---Yes, but he (indistinct). And now we've got your email to Richard literally talking about your actions and inactions, and that, 'Regrettably in my enthusiasm to assist a colleague, I missed some [2026] FWC 119 21 initial circuit breaker checks', that you claim to have understood the concern about your failure to conduct checks to be relating to PPE, Greg's, and his (indistinct) apparently. Is that right?---So I missed that. Where was that written? In my statement here. No, that's in the email that we're looking at?---'Racking process as I expected, and my colleague has done them'. Yes, I expected he had done them. No, I referred you to your actions and inactions in your statement that, 'Regrettably in my enthusiasm to assist a colleague, I missed some initial circuit breaker checks'?--- Which covered the ones that he would have done. All right. But just happens to be completely inconsistent with all of the other evidence that I've just summarised?---Well, I've tried to explain to the court here today that I was being played on a break by people that had been trying to get rid of me for the last 17 years. All right. You're expecting the Commissioner to believe it?---Well, when he looks at – looks at it, it will be for him to decide. Sure?---But what can I say? It's too well orchestrated. That's what I'm saying. What's that? Explain that to me?---Greg racked the circuit breaker, as I observed, from the test isolator position to the service position. I asked you to explain the alleged orchestration to me?---And he proceeded with the process, and he never raised any issue with me at that time. It's been developed over, in my absence, 260 days till April next year, and it's been an ongoing saga in my life of the last two years. I'm sure it has, and I don't want to minimise that, but I'm asking you about what the case was on 25 August 2023. You see, my point is that whatever might have happened over the course of 260 days, it could not have been more clear at the point one month after it had allegedly happened. You accept that?---I accept that if it's – if it's taken that I didn't need refresher training and I didn't want refresher training, then you can believe that I wouldn't have written it this way. I understood that an opportunity existed where these checks that I had missed that Greg – that were Greg Brown's responsibility, could allow me to get some refresher training. (Audio malfunction) next sentence, 'There were a number of contributing factors involved here, being I had not worked with this particular colleague very often, if at all, and was unfamiliar with how he operated'. How would that explain not checking Mr Brown's PPE?---Well, it was the first time. That's why I remember it so well because it was the first and only time I've ever worked with Greg. Sure. What I'm asking you is how is that an explanation for your alleged apprehension that the concern raised was your failure to check the PPE he was wearing?---Well, it's his responsibility to check. [2026] FWC 119 22 That's the point I'm putting to you. It's ludicrous for your to suggest, isn't it, that that's what you thought was being raised with you?---I don't understand that question. You've just given me an answer that's obvious, that it was his responsibility to check his PPE. What flows from that, I'm putting to you, is that it is implausible, utterly implausible for you to suggest that that's what you were referring to here. That's what you were – those were the checks that you were admitting to not having done?---Why? Sorry, I'm not asking a question. I'm puzzled with your question. Yes. All right. Well, I suggest to you - - -?---That's all I could think of. Okay. In terms of the contributing factors, I suggest to you that the fact that you hadn't worked with Greg very often, if at all, and was unfamiliar with how he operated, gives no explanation as to why you would have failed to check his PPE?---I don't know. Okay. Well, why would you say it?---In the hope that I could get refresher training. [59] The conclusion to this exchange strongly suggests that the Applicant’s desire to obtain refresher training was influential in crafting the response he gave to Mr Clark when the incident was first raised with him.91 There is some inconsistency in the evidence as to whose idea it was that the Applicant complete some refresher training. As noted in paragraph [51] above, Mr Brown’s evidence is that he made arrangements for some training to occur (which ultimately did not proceed), Mr Clark’s position per paragraph [55] above is that it was collective position between the Applicant and himself. The genesis of the request for refresher training, on the Applicant’s version of events, was as follows: “During or around mid to late August 2023, my Shift Manager Richard Clarke, spoke to me briefly about an issue that had been raised with him, which he described as an ‘unspecified claim’. Richard explained to me that Greg had spoke to him about me and that Greg had claimed he never saw me make some checks. I was surprised, but thought about this and explained to Richard that I couldn’t think of any checks I had missed and that I had completed all of the required checks as I usually would (which I had done for the past 28 years doing the same task). Nevertheless, I told Richard I would write and seek refresher training. Richard said “ok” and left it at that. I thought that was the end of the matter”.92 [60] The Applicant did not resile from that position in his Reply Statement, adding further that: “It was my idea to request refresher training, because as I have stated above, refresher training is something I had been seeking to do for some time. Mr Clark suggested that I send him an email, so I sent him an email in order to have AGL give me the refresher training I’d been requesting for some time. In that e-mail, I say that I didn’t perform some ‘CB checks’. I used the phrase ‘CB checks’ because the PPE checks that I thought I may not have done were connected to a task which ultimately related to a CB”.93 [61] The Applicant’s evidence about it being his idea to request refresher training is not consistent with a response the Applicant gave in writing on 28 February 2025, after a formal [2026] FWC 119 23 investigation had been instituted, posing some “clarifying questions”, wherein he stated that “Rather than argue with Greg, I accepted Richard’s advice to submit an application for some Refresher Training so to improve communications and follow ups and also to allay their concerns.”94 It is not clear how the Applicant could have been in position to “argue with” Mr Brown if, as he maintained, he did not have a discussion with Mr Brown after the incident about these matters. [62] The Applicant’s e-mail to Mr Clark of 25 August made references to “urgency”. In particular: “Regrettably, in my enthusiasm to assist my colleague, I missed some initial CB checks before the actual racking process as I expected my colleague had done them. There were a number of contributing factors involved here, being I had not worked with this particular colleague very often, if at all, and was unfamiliar with how he operated, there was also some urgency pending due to this doubling up caused a manning shortage at a time of resultant high workload yet to be addressed, also there has been over very many years an AGL Loy Yang A Station senior managerial directive to refuse LYA Operators refresher training…. My confusion of us, two unfamiliar operators, trying to do the same work, as well as the urgency of reduced ORG manning had on achieving our immediate goal, as well as other outstanding works, resulted in actually both of us not following the HV CB written procedures”95 [63] During cross examination the Applicant was invited on several times to accept the proposition that his own characterisation of urgency was consistent with Mr Brown’s description of him as “rushed”96 when approaching the area of the workplace in which the incident of 24 July 2023 took place: “Do you agree that you were in a rush to get up there?---No. My uncle had the Victorian championship for walking, and it's part of my family. I was six of eight children, number six, so I had not only my mum and dad to keep up with, but I also had my older brothers and sisters to keep up with. We lived over a mile from school, and church, and whatever, we developed quite speedy walking. We didn't own a car at the time, so when I got out of the pram, it was a case of keeping up with the adults. So I learned to walk quite quickly, lowering my centre of gravity and stretching my step length. And I'm naturally, so many years later, I naturally walk fast. It's a big power station, it's not just outside the control room there. The lifts in older power stations are just outside the lifts of the – the lifts are just outside of the UCR, Unit Control Room, and they take you to the level you want to go to. Whereas here, we have got it like a couple of hundred, two or three hundred metre walk, or whatever, to the annex, and it's noisy and it's dirty, and we get paid extra because of the conditions. So I took off and got there first to the door. Now, Greg - - - Is it fair to say you're operating under a bit of time pressure though on the day?---Not – 3 o'clock is a busy time because maintenance normally have finished their work, they're going to stop for afternoon tea, and the person who took the permit out, they're going to come to the control room, and if we're available, surrender their permit, and that then will be prioritised as to which ones get attention first and there's all that. And Greg was [2026] FWC 119 24 going to go home at, I believe, around 4.30 is the time and so we had an hour and a half. They've said to be it was around 3 o'clock, so we had an hour and a half to do a pretty straightforward job.”97 ……….. “There was some urgency pending is what you say, and that was the – that's inconsistent with the answer that you gave me earlier when I suggested to you that you were rushing to this job?---No, no. What I'm highlighting there is just that the manning shortage – they've gone away from – they've cut our numbers from 275 down to 105, and on top of that, now they're saying now we've got to have two operators to do what one operator did before, and what I'm saying in that is that there hasn't been any increase in manning to say, 'Right. Well, if we're going to need people to do these extra tasks, we're going to need more manning'. Right?---And so I'm putting it to management that at the same time that they want two operators to disappear out on the plant, means that there's somebody not in the control room to do what otherwise they would be doing in permit surrendering or accepting surrender from the (indistinct) charges. (Audio malfunction). I take it that you're not going to answer my question about the urgency?---Sorry? I - - - Yes. Yes. No. I accept that was fairly loud. I'm not going to put to you the point about urgency again because I've asked you a number of times. I don't think you're going to answer it. Okay. Maybe I'll do it one more time. What you were saying here about the urgency of the situation is directly inconsistent with what you told me when I asked you questions when you were walking up to the annex earlier today; isn't it? Well, you said that you weren't in any particular rush?---No, I was not – no particular rush.”98 [64] There is in my view some inconsistency between seeking to explain a mistake on the basis of urgency caused by staffing shortages and high workload without also conceding the mistake was a result of being in a rush. The evidence is either there was no rushing (in which the impact of the urgency on any mistake is probably immaterial) or there was. I accept Mr Brown’s evidence, as discussed in paragraph [39] above, that the Applicant was rushing. The Applicant’s verbal response to Mr Clark [65] As noted above, the Applicant’s email to Mr Clark followed on from a conversation between Mr Clark and the Applicant, the contents of which are in dispute. Mr Clark’s evidence about that is referred to at paragraph [55] above and is to be preferred in light of the Applicant’s implausible account that he had only been on notice of a concern about the performance of “some checks” and that his e-mail of 25 August 2025 was consistent with the concerns raised being limited in that way. Mr Clark said that conversation prompted him to write an e-mail to Mr Griffin, who was then the Acting Head of Station Production. It is not necessary to set that e-mail out in full, but merely to note that it informed Mr Griffin of the following matters: a) That he had a conversation with Mr Brown about an interaction with the Applicant; b) That the Applicant had “failed to complete the required safety checks and then has failed to follow our critical procedures when racking in HV CB’s”; [2026] FWC 119 25 c) That the Applicant had explained that he was not up to date with current critical procedures because he had extended breaks and not done refresher training; d) That further information had been sought from the Applicant; e) That he (Mr Clark) had concerns about the Applicant’s ability to perform the role safely and that the Applicant’s “authorisations to perform high risk activities” should be removed “until it is proven he can complete these tasks competently”.99 [66] The e-mail to Mr Griffin, like the exchange between Mr Brown and Mr Clark, also offered a solution rather than a problem. It was not explored in evidence whether the proof that the Applicant “could complete the tasks competently” was something that might be delivered by way of refresher training. Be that as it may, the fact of the matter was that by putting Mr Griffin on notice of this, the risk that the matter may escalate was heightened. It was further heightened by Mr Clark forwarding the Applicant’s e-mail of 25 August 2025 to Mr Griffin. The promotional interview [67] On 25 August 2025, Mr Brown was interviewed for the position of Unit Controller. Mr Griffin and Mr Clark were on the interview panel, as were Mr Klose (another shift manager) and an unidentified person from the People and Culture Department of the Respondent. Mr Brown says he was asked a question about difficult interactions in the workplace and the answer he gave described the incident on 24 July 2023. Mr Brown says that Mr Griffin took him aside “straight after the incident” and told him that given the seriousness of the incident, he needed to report it through the “MyHSE” incident management software. Mr Brown did as he was asked. The contents of that report were annexed to Mr Brown’s Statement and are consistent with the evidence he gave in this matter, save as to the answers given in cross examination as referred to in paragraph [45] above that clarified that some expectations as to particular checks being performed are not explicitly referred to in relevant section of the POM. [68] The outcome of the promotional interview, which involved the airing of the issue beyond the limited group who previously had knowledge of the events, thus marked the formalisation of the reporting of the incident. An investigation ensued, although not without some difficulties. [69] The Applicant says that he did not hear any more about the incident in August after providing his e-mail on 25 August. Whilst Mr Clark100 and Mr Van Der Welden101 were of the view that the Applicant was spoken to about not being permitted to perform work involving high voltage equipment, the Applicant denied this.102 The evidence is inconclusive on this point, but certainly reflects an intention that an instruction to this effect should be given, in particular Mr Van Der Welden’s comment to Mr Clark that: “…John has claimed a lack of training as the sole determinant of his failure to comply, and then to continue on whilst an investigation of sorts is underway appears lacklustre to say the least. Bordering on negligent even”103 Perhaps the best indication of whether such an instruction was given is to establish as a matter of fact whether or not the Applicant did perform work involving high voltage equipment after August. The Applicant says he thinks he did104 but could not contradict the proposition that he did not.105 The records produced by the Respondent go no further than to show that the Applicant did not interact with the system used to log the performance of high voltage work, [2026] FWC 119 26 that is, it did not exclude the possibility that the Applicant worked in a pair with another person on high voltage work in circumstance where that other person took responsibility for entering the relevant details on the system.106 In the circumstances, I am prepared to make a finding that there was a decision by the Respondent that the Applicant not perform such work, but I am not prepared to make a finding that that decision was communicated to the Applicant or carried into effect. The investigation and termination [70] After 25 August 2023, the Applicant worked two night shifts and took two days of sick leave107 before commencing a period of leave on 11 September. He returned to work from leave on 8 April 2024. He had not heard anything from the Respondent in respect of his request for refresher training, or otherwise communicated in respect of that incident, before he returned from work. This is surprising. In my view, there was ample opportunity to put the Applicant on notice of a formal investigation in the period before his leave was to commence, and indeed to give him the option of participating in the investigation during what had, at that stage, been a planned period of leave. Indeed, there was evidently some dissatisfaction about this within the Respondent. Ms Van Der Merwe, the Respondent’s head of People and Culture, gave evidence that she became aware of the incident on 28 August 2023. She relevantly said: “There appear to have been a lot of discussion amongst Mr Scully, Mr Clarke, and Mr Griffin and Mr Brown about the event. I advised Mr Griffin at that point that we have systems in place, and it needed to be put into My HSE, which it was, and I then said he needed a formal investigation, not chatter amongst the different individuals given the seriousness of the issue. And from there, Mr Griffin went to proceed down that line, but Mr Scully had two days sick leave on his day shifts, and then the night shifts were not hours of work that Mr Griffin worked, and then he went on leave, so it was unresolved. As a consequence of that, Mr Griffin was counselled by myself of the inappropriateness of leaving a matter so serious unresolved and to allow Mr Scully to go on leave, and at that point I then told him we would need to reopen it upon Mr Scully returning from leave.”108 [71] The person tasked with the investigation was Mr Jilbert, who did not commence in his role as Head of Station Production until of January of 2024. He estimates that he became aware of the incident on or about 30 January 2024 when, while browsing outstanding events on the “myHSE” system, he came across Mr Brown’s report as referred to in paragraph [67] above. Shortly thereafter, he read the e-mail from Mr Clark to Mr Griffin of 24 August 2023 (discussed in paragraphs [65] - [66] above) and the Applicant’s email of 25 August 2023 (discussed in paragraph [57] above). His evidence was that it appeared to him, on the strength of this material, that the matter was very serious and required further investigation. He then commenced discussions with Mr Clark, Mr Griffin and Ms Van Der Merwe about doing so. In cross examination he also admitted to speaking to Mr Van Der Welden, who conveyed to him that he believed the Applicant had engaged in misconduct, and Mr Van Der Welden said that he took that view into account.109 He also says he made a decision not to commence his investigation until immediately upon the Applicant’s return from leave on the basis that there was “no ongoing safety risk posed by John while he was on leave”.110 Whilst this may well have suited the interests of the Respondent, Mr Jilbert agreed during cross examination that he had been concerned about how much time had already elapsed, accepted that it was ideal to conduct an [2026] FWC 119 27 investigation as soon as possible and accepted that a prolonged investigation can disadvantage the person who is accused of misconduct.111 Be that as it may, I have already found that prior to going on leave, that is in August of 2023, the Applicant knew that Mr Clark and Mr Brown were concerned about the incident and that those concerns were about him not performing checks he should have performed, and racking in a HVCB incorrectly and without wearing the appropriate PPE for the task. [72] Mr Jilbert prepared a letter of allegation by reference to the materials referred to in paragraph [71] above and the Applicant’s training records (which relevantly satisfied Mr Jilbert that the Applicant had been trained in 2018 on “AGL’s updated safety procedures in relation to racking in a circuit breaker and the PPE that was required to be worn to limit the impact of an arc flash”.112 Mr Jilbert’s evidence is that he did not speak to Mr Brown before writing the allegation letter.113 The letter of allegation was provided to the Applicant during a meeting between him, Mr Jilbert and Mr Van Der Welden on his first day back at work, 8 April 2024. The allegations letter set out 12 allegations.114 Materially, allegation 3 alleged the Applicant had failed to conduct checks, allegation 4 alleged that the applicant pushed the HVCB into the test/isolate position, allegations 5-7 alleged that he racked the HVCB “without the required PPE and mat”, past the test/isolate position but not fully into the service position and then removed the racking handle and walked away with it. The allegations letter did not however identify a particular section of the POM that had not been compiled with. As well as setting out the allegations, the letter suspended the Applicant on full pay and sought a further meeting with him on 10 April for him to provide his response and stated that a support person could attend with him. The meeting was rescheduled to 11 April to enable both Mr Pedemont and Mr Smith to attend as the Applicant’s support persons. [73] The Applicant says that when he returned to work on 8 April and while checking his e- mails, he was told that he needed to have a meeting with Mr Jilbert, but not what the topic of the meeting was. He says he was escorted to the meeting by Mr Van Der Welden who did not speak to him. He confirmed he was provided with a copy of the letter of allegations at the meeting and that the meeting went for about an hour. He said he didn’t recall exactly what he said during that meeting other than generally disputing allegations of wrongdoing.115 [74] The meeting on 11 April involved the Applicant, Mr Pedemont, Mr Smith, Mr Jilbert and Mr Van Der Welden. Mr Jilbert made some brief notes of the meeting, including “fine recollection of event”. Mr Jilbert’s evidence was that the Applicant “spent a lot of time ranting about the investigation, the allegations and unrelated issues that were off topic”.116 He says the Applicant told him that “that is the way I have done it for 30 years”, that the gloves did not fit him and that he was familiar with the procedure. He said he read out a section of the POM concerning critical procedures (section 3.1.6 as set out in paragraph [31] above) to the Applicant,117 referred to parts of the myHSE report and provided copies of both to the Applicant when requested to. Mr Jilbert says that the Applicant never said during the meeting that he did not rack the circuit breaker into the service position.118 As I have found, he did not actually achieve the complete movement to the service position successfully, so his failure to state this is unremarkable. Mr Van Der Welden took more detailed notes, which are somewhat inconsistent both internally and compared to Mr Jilbert’s notes and recollections. Specifically, Mr Van Der Welden’s notes attribute comments to the Applicant that he was “not fully aware” of the events on the day and was “vague what the exact details were”, yet also states that the [2026] FWC 119 28 Applicant “gave a very detailed description of the racking process and the details of the event”.119 As to the racking, Mr Van Der Welden’s notes say: “John clearly identifies Greg as the person who was to be doing the racking and wearing the PPE. He denies racking from the test/isolated point. He stops his story at the point where he has pushed the breaker to this point” 120 Mr Van Der Welden’s notes otherwise conclude with an indication that there would be a further meeting on Tuesday (16 April). In cross examination, Mr Jilbert conceded that “in the final parts of the meeting” the Applicant denied racking the HVCB past the test/isolate position121 and that in the earlier parts of the meeting, the Applicant claimed he had little knowledge of the events of the day but had some clear recollection of what he thought he’d done by the end of the meeting.122 [75] Mr Smith said that he didn’t recall the Applicant “ranting” at the meeting but rather speaking at length about the issues raised with him. Mr Smith says that both he himself and Mr Pedemont raised questions in the meeting about contradictions in the letter of allegations and who had performed what role on the day in question. His annexed notes indicate issues being raised about whether the Applicant was “leading or assisting” and it being “Unclear who is the checker and who is undertaking the work”.123 Mr Pedemont also took issue with the description of the Applicant as ranting in the meeting. His brief notes of the meeting are consistent with the Applicant stating that he was familiar with procedures and that Mr Brown was the one who did the racking.124 [76] Mr Jilbert says that he spoke to Mr Brown on the phone in the afternoon following that meeting and Mr Brown explained to him how he thought the procedure should be performed. Mr Jilbert was impressed with Mr Brown’s account and considered that account to be inconsistent with a remark allegedly made by the Applicant in the meeting that “Greg didn’t know what he was doing”. They also discussed the incident, and Mr Jilbert made notes of the discussion. These reflect that Mr Brown had described the Applicant as “gung ho”, that the Applicant had racked the HVCB and walked away with the handle after the HVCB was “90% of the way there” and that “Greg yelled at John to get the handle back + finished the task (Greg was afraid)”.125 Thereafter, Mr Jilbert had a following meeting with Mr Brown and observed the demonstration by Mr Brown and a colleague, as referred to in paragraph [45](g) above. In oral evidence, it was clear that Mr Jilbert understood that demonstration was of how the task was actually done in practice and he believes he was told by Mr Brown that what was demonstrated to him was how Mr Brown did the task and how others also did the task.126 Mr Brown has conceded that what was demonstrated was what should be done under section 3.3.5.8 of the POM, not what is actually done in practice. Nonetheless, for reasons that will be apparent, it is material in the course of the demonstration (and in accordance with section 3.3.5.8 of the POM) that the operator performing the racking wore the arc flash rated PPE.127 Ultimately Mr Jilbert preferred Mr Brown’s account of the incident over the Applicant’s. Mr Jilbert found all but one of the allegations substantiated, save for one which he found partially substantiated. This was allegation 3, being the allegation which particularised the checks that the Applicant was accused of not performing. Mr Jilbert reached that view in part because “it was difficult to say what John had or hadn’t looked at”.128 [2026] FWC 119 29 [77] Mr Jilbert said he had a further meeting with the Applicant, Mr Smith and Mr Pedemont on 16 April 2024 at which he read out the contents of a letter that listed the findings of the investigation, said that the Applicant’s conduct was a serious breach of his employment obligations, advised that the Respondent was considering termination of employment and allowed the Applicant to give a written response by 23 April 2024. Neither Mr Smith or Mr Pedemont gave evidence about this meeting. Other than referring to the meeting occurring, the Applicant gave no account of it in his written evidence but referred to it as “a full-on attack” during his cross examination.129 [78] The Applicant did provide a written response as requested on 23 April, which relevantly denied wrongdoing with respect to both the failure to perform checks and the allegations concerning racking the HVCB past the test/isolate position. That response was lengthy130 and gave detailed responses to the mattes raised, to a level of granularity that included precisely where his left and rights hands were at particular times during the incident in question. The response also gave notice of an intention to take leave until 19 July and retire 20 on July. Whilst Mr Jilbert initially sought to obtain more information from the Applicant in relation to the incident and the investigation, ultimately on 21 May 2024 the Applicant proposed an alternative resignation date of 31 December and that he would utilise various leave entitlements (including at half pay) until that proposed date. Mr Jilbert indicated in reply that he would approve the utilisation of leave in that way and requested a written notice of resignation that he could provide to the People and Culture department.131 After a series of exchanges, the details of which are not relevant for present purposes, the Applicant did not resign. The Applicant provided some unsolicited commentary on the incident, and some of the Respondent’s personnel, during these exchanges. [79] On 23 January 2025, Mr Smith wrote to Ms Van Der Merwe seeking resolution of the Respondent’s decision concerning the Applicant’s employment and advising that “AGL should have enough information to confidently make a decision on John’s ongoing employment, taking any more time will only prolong John’s suffering unnecessarily”.132 Further to this, on 20 February 2025, Mr Jilbert sent a further letter to the Applicant which again set out the allegations and findings, and provided an opportunity for him to respond to some “clarifying questions” by 28 February. The Applicant did provide such a response, and that too was lengthy and denied wrongdoing with respect to both the alleged failure to perform checks and the allegations concerning racking the HVCB past the test/isolate position.133 [80] Cross examination focussed closely on the Applicant’s statements during the investigative process, including the written accounts given on 23 April 2024 and 28 February 2025. It is not in dispute that there were delays in the commencement of that process, with the incident in question occurring on 24 July 2023, allegations not being raised against him until 8 April 2024 and no finalisation of the investigation until the decision to dismiss on 27 March 2025. It is understandable that memories fade and there may reasonably be matters where it is unfair to insist on a precise recollection of particular details. The difficulty the Applicant faces is that he maintained in these written responses that he did recall the event in question and gave detailed responses to the matters raised against him. It was only during his oral evidence that he offered that he may have been mistaken about some details, possibly on account of the passage of time,134 his mental state during the investigation, 135 the absence of legal assistance or someone to proofread his responses into the investigation136 or “the power of suggestion”.137 He went so far as to suggest that his mental state at one point of the investigation was such that [2026] FWC 119 30 he was imagining things that didn’t happen.138 No medical evidence was tendered as to the Applicant’s mental health. [81] Whilst the Commission should grant some latitude to witnesses who are cross examined in relation to events that have occurred years ago and prior statements in relation to those events, such latitude does not extend to forgiving clear evasiveness during cross examination or evidence that lacks basic logic or is plainly implausible. Rather than concede the possibility of a mistake, or acknowledge an absence of a detailed recollection, the Applicant seemed on many occasions to be overly defensive. It is sufficient to highlight this by way of the following examples. Example 1 – type of HVCB [82] In oral evidence, the Applicant contended that during the incident in question he was manoeuvring and inspecting an air type HVCB.139 When it was suggested to him that the framing of the allegations against him and his response to them made clear that it was an SF6 type HVCB, because of the references in the allegations to checks of a mini circuit breaker - a check which he had asserted he had done in his response of 23 April 2024140 - he attempted to explain that he had made an error in his response of 23 April 2024 on account of “the power of suggestion” and the absence of legal representation. His justification in this regard was entirely unconvincing: All right. And throughout the entire course of this process, which was lengthy as you've already given evidence about, it never occurred to you to suggest that the wrong circuit breaker was being referred to?---No, it didn't. And you were prepared to make an assertion of having done a check, in your responses to the allegations, that you could not have done, correct?---Yeah, that's the power of suggestion. Well, no it's not. You were asked to give your truthful response?---Yeah, I didn't lawyer-up at that stage and - - - What difference would that have made?---Well, they're not emotionally involved like the person that they're representing. Their job is to be detached and follow it in some kind of order that's beyond my understanding. But they may have said this or that and corrected that. I really regret that – following that suggestion that they've put on the letter that took them 260 days to come up with and they gave me the two weeks to respond. Because I was told by Andy and Joe, you'll see later, that I was going to lose my job. And so I was beside myself with, what do I do with the rest of my life? Like, this is everything to me. Everything. [83] It should be noted that that Applicant had also, in his initial witness statement in the proceeding dated 16 June 2025, asserted that he had checked that the mini circuit breaker was in the up position.141 Earlier in the day on which the cross examination referred to above took place, that statement had been tendered on the basis that that the Applicant accepted it to be true and correct to the best of his knowledge. Example 2 – Changes to the POM [84] During cross examination, Mr Scully accepted that as part of a training course he undertook in 1996, he received training in high voltage operations including restoring high voltage circuit breakers to service and the checks that need to be undertaken before that [2026] FWC 119 31 procedure is carried out.142 The Applicant’s evidence is that at the time of this training, there was some difference in the personal protective equipment requirements for racking a circuit breaker from the test/isolate position to the service position compared to the current practice,143 however further training was undertaken in 2018.144 There was initially some dispute as to whether the requirements in the POM had been altered in a material way since that training was undertaken,145 particularly in respect of whether there was a requirement to work in pairs in doing work of the type that occurred on 24 July 2023 and whether there was a requirement to print out “critical procedures” before undertaking them.146 It was ultimately revealed that the relevant procedure as at 2018 did also contain those requirements.147 The import of the Applicant being ultimately incorrect about that goes beyond that mere fact in the sense that it serves as an example of the Applicant’s evasiveness. When questioned about this issue, the Applicant was unwilling to accede to the proposition that if the documents were to show no relevant change in the POM as between 2018 and 2023, he must be mistaken in asserting that they had been changed or “embellished” in that period.148 When confronted with both the 2018 and 2023 documents side by side, the Applicant ultimately conceded that he had been incorrect and that to the extent that there was any failure by him to comply with procedure, it wasn’t a failure of his employer to bring the correct procedure to his attention.149 Nonetheless, his desire to evade the logical proposition that his recollection of what a procedure said might be proved incorrect by looking at the document itself was remarkable. [85] Returning to the investigation then, Mr Jilbert said he considered the response that had been given and formed the view that the Applicant had breached the POM, and breached the Respondnet’s code of Conduct by not performing the required checks and racking the HVCB beyond the test/isolate position without the required protective equipment. He prepared an investigation report for the Respondent’s General Manager after conferring with the People And Culture Department (Ms Van De Merwe indicates she provided some support to Mr Jilbert with this).150 This resulted in the issuing of the letter of termination referred to at paragraph [18] above. Initial matters [86] Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application: (a) whether the application was made within the period required in subsection 394(2); (b) whether the person was protected from unfair dismissal; (c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; (d) whether the dismissal was a case of genuine redundancy. [87] The application was made on 11 April 2025 (and subsequently amended). There is no dispute that the application related to employment that came to an end on 27 March of 2025. Nor is there any dispute that the employment ended by way of a dismissal within meaning of section 386(1)(a) of the Act taking effect on that day. The application was brought within the required period. [2026] FWC 119 32 [88] Similarly, there was no dispute that the Applicant was at all relevant times protected from unfair dismissal. The Applicant had worked on a full-time basis for the Respondent for decades, and his employment at the time of the termination was subject to the AGL Loy Yang Enterprise Agreement 2021. [89] The Small Business Fair Dismissal Code has no relevance to the matter, as the Respondent at the relevant time employed far in excess of 15 employees. There was no suggestion that the dismissal was a case of genuine redundancy. The Applicant was dismissed for the conduct the Respondent found he had engaged in, as set out in paragraph [18] above. Was the dismissal harsh, unjust or unreasonable? [90] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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); and (b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that the FWC considers relevant. [91] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.151 [92] I set out my consideration of each below. Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct? [93] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”152 and should not be “capricious, fanciful, spiteful or prejudiced.”153 However, [2026] FWC 119 33 the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.154 [94] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.155 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission 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.”156 [95] In this case, the position of the Respondent was that the Applicant engaged in serious misconduct. The Applicant submitted that the nature of the allegations put means the that the Briginshaw principle applies to proving the relevant conduct. It therefore followed, in the Applicant’s submission, that reliance by the Respondent on the evidence of only one witness to the incident on 24 July 2023 was an insufficient basis to prove the conduct where their evidence was disputed. The Respondent’s position is that the Commission can be “comfortably satisfied” that the conduct alleged against the Applicant and which formed the basis of the reason for termination did occur, even on the basis of a “word-on-word account”. I agree. [96] Ultimately, as the Applicant’s submissions recognise, applying the Briginshaw principle in misconduct cases does not involve adopting a different or unique standard of proof to such proceedings but rather recognises that the seriousness of an allegation, the inherent unlikelihood of the matter having occurred as alleged and the gravity of the consequences flowing from proof of an allegation are all matters than can relevantly bear on the Commission’s satisfaction as to what in fact occurred. As stated by the Full Bench in Brinks Australia v. TWU, while it is true that the strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what it is sought to prove, the standard of proof never changes.157 What is required is that the Commission feel actually persuaded that conduct occurred.158 There is no prohibition on reaching that state of persuasion merely because the evidence of one witness is preferred over another in material respects in a one-on-one contest.159 [97] In this case, I have made a finding that the Applicant racked the HVCB past the test/isolate position and that he was not wearing the appropriate PPE to perform that task. I consider that he engaged in that conduct most likely because he thought Mr Brown wanted him to, after Mr Brown effectively took charge of the operation by first directing the Applicant to stop what he was doing, then checking the equipment, then telling him “its good to push in”. The Applicant may well have been confused or taken aback by Mr Brown’s interjection, but any reasonable experienced operator would have not racked the HVCB in. If he was confused, what he could have done is to first clarify with Mr Brown that what he was going to do was move the HVCB to the test/isolate position and then handover the remainder of the task to Mr Brown. The poor communication (for which both men are responsible) offered no excuse for the Applicant to proceed further, and there is no question that the Applicant understood that it was neither safe or permissible to rack the HVCB past the test/isolate position without appropriate PPE. There is an issue as to whether failure to fully rack the circuit breaker into the service position was intentional (in the sense that the Applicant realised after beginning to rack the circuit breaker he should stop) or unintentional (in the sense that the Applicant mistakenly thought he had reached the service position when he stopped racking). Mr Brown’s evidence that the Applicant removed the handle and started walking away with it is more consistent with [2026] FWC 119 34 the second proposition. The fact that the HVCB was left in a liminal space between being in the test/isolate position and the service position added to the danger created by the Applicant commencing the racking. The conduct is sufficiently serious to amount to a valid reason for the serious sanction of termination. It is conduct that might be described as inherently unlikely to have occurred, but I have been satisfied that it did occur because I have found Mr Brown to be a reliable witness. [98] The racking conduct of the Applicant was a valid reason for the termination of his employment. It was clear from the operating procedures at 3.3.5.7 and 3.3.5.8 of the POM that the racking of a HVCB past the test/isolate position should only have been undertaken by a person wearing arc-flash appropriate PPE. It was conceded on behalf of the Applicant that, if I were to find that the Applicant did perform the racking, this would be a breach of procedure.160 This was not a new requirement, and the Applicant indicated at multiple stages of the investigation and in his evidence that he was aware of this requirement (indeed his narrative about ill-fitting gloves was based around an understanding of this requirement). [99] I have made no firm findings as to precisely what “checks” the Applicant did or did not perform. I consider that he most likely did perform at least some of the checks that could have been performed with the cabinet door closed. In any event, I do not consider that the circumstances warrant any finding that any failure to perform checks constituted a valid reason for termination. Whilst it was well understood that a person racking a circuit breaker past the test/isolate position must be in arc-flash PPE, that is an issue that squarely places an onus on an individual. Conversely, there seems to be, in a practical sense, no fixed rule as to who performs which checks when restoring a HVCB in a team of two. Whilst the POM requires that one person simply read through, instruct and observe the other person while that other person follows a critical procedure,161 this is a requirement that is not consistently observed. It would not be sound or defensible to dismiss an employee for performing a task in a manner different to the stated procedure in circumstances where the employer knows (or ought to know) and/or evidently tolerates it being done differently. The practical expectation is that, collectively, the pair perform the checks. That is what occurred here. It matters not that some intervention was required on Mr Brown’s part to ensure that outcome was reached. Was the Applicant notified of the valid reason? [100] Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).162 [101] 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,163 and in explicit164 and plain and clear terms.165 [102] The Applicant was given notice multiple times that racking the HVCB past the test/isolate position without wearing the appropriate PPE was considered serious. This occurred: [2026] FWC 119 35 (a) In a letter of 8 April 2024 from Mr Jilbert, which relevantly put an allegation that “You then proceeded to rack the CB into the cubicle without the required PPE…” and states that “AGL is concerned that you may have engaged in conduct which, if substantiated, may constitute serious misconduct and could result in disciplinary action up to and including termination of employment”166 (b) In a letter of 16 April 2024 from Mr Jilbert, which advised that the above allegation had been substantiated and said: “AGL considers your conduct to be a serious breach of your employment obligations. You failed to follow the correct operating procedure as outlined in the Plant Operating Manual Volume 9 Section 3. Specifically, you proceeded to rack beyond the isolated/test position and failed to wear the mandatory Personal Protective Equipment (PPE) required for the task. By deviating from this operating procedure, it could have lead to a highly unsafe situation or death as outlined in Clause 3.1.6 Critical Procedures in the Plant Operating Manual Volume 9. You have breached AGL’s Code of Conduct, specifically: We observe the law, our obligations, voluntary commitments and internal standards Perform all work safely, adhere to safety requirements and use all relevant personal protective equipment. We look after our people and encourage our People to Be Safe. Be Supportive Observe all policies that are intended to safeguard your health and safety in the performance of your job. Your employment Based on the above, AGL is considering terminating your employment on the basis you engaged in serious misconduct….”167 (c) In a letter of 20 February 2025 from Mr Jilbert168, which relevantly included the allegation concerning the racking and the text extracted in sub paragraph (b) above with the exception of the “Your employment” heading and the text that followed. Rather, this letter relevantly stated that “In the absence of receiving any further information from you by 5.00PM on Friday 28 February 2025, AGL will make a decision about whether to terminate your employment based on the information available to us. [103] Based on the above, it ought to have been clear to the Applicant prior to the termination occurring that the Respondent considered that racking the HVCB past the test/isolate position was sufficiently serious in and of itself to justify the termination of employment, notwithstanding that other allegations were also pressed. I accept that the letter giving effect to the termination is ambiguous as to whether that conduct on its own justified the termination or rather the conduct taken collectively (including the alleged failure to perform checks) justified that outcome. [104] The Applicant submits that portions of the letter of 16 April 2024, captured in the extract above, were not sufficiently particularised. I do not agree. What is material for present purposes is that Applicant knew that he was facing potential termination because he racked the HVCB past the test/isolate position without the appropriate PPE. That was clear on the face of the written communications, and I have found that even prior to that (notwithstanding the [2026] FWC 119 36 Applicant’s denials) that he was aware from his verbal interactions with Mr Brown and Mr Clark in August of 2023 that the conduct of racking the HVCB past the test/isolate position without the required PPE was something both of them were concerned about. I do not consider that identifying in the letter of allegations and thereafter the precise paragraph of the POM that dealt with the requirement to wear arc-flash PPE when racking a HVCB would have made an iota of difference to the way in which the matter proceeded. Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct? [105] 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.169 [106] 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.170 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.171 [107] The Applicant was given multiple opportunities to respond to the allegation that he had racked the HVCB past the test/isolate position without the appropriate PPE. This occurred at multiple times during the formal investigation as set out in paragraph [102] and [70] - [85] above (and he availed himself of those opportunities). I have found that he was also separately asked to explain that conduct through the less formal process that occurred in August of 2023. Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal? [108] 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. [109] In written submissions, it was said for the Applicant that the initial meeting on 8 April 2024 – on the Applicant’s first day of back from leave when he was escorted to Mr Jilbert by Mr Van Der Welden –was such a refusal. However, 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.”172 [110] In this case, Mr Smith and Mr Pedemont attended as support persons in meetings on 11 April 2024 (that meeting having been rescheduled to facilitate their attendance) and 16 April 2024. There was no refusal to allow a support person, let alone an unreasonable refusal, at these meetings. [2026] FWC 119 37 Was the Applicant warned about unsatisfactory performance before the dismissal? [111] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances. To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? [112] The Applicant submits that the Respondent’s size and the availability of specialist Human Resources specialists means that the investigation of the matter ought to have been undertaken to a higher standard than in fact occurred. [113] I accept this submission in part. I do not regard any alleged lack of specificity in the allegations concerning racking the HVCB past the test/isolate position without the required PPE to be material. I do find that substantiation of allegations concerning the failure to perform checks was unwarranted, but I have also found that the conduct concerning racking the HVCB past the test/isolate position without the required PPE was sufficiently serious to warrant termination in and of itself. [114] The most significant failing in this case was delay in instituting and concluding the formal investigation. That the delay did not meet the Respondent’s own expectations as to how an issue such as this ought to be managed was effectively conceded by the evidence of Ms Van Der Merwe. Some proportion of the blame for the delay lies with the Applicant however, the Applicant’s indication in April of 2024 that he wished to retire after utilising his leave entitlements and his ultimate retraction of that position with the Respondent’s assent in November of that year contributing. However, whether the delay was material is another question. I have found that within a month of the incident occurring, the Applicant was on notice from Mr Brown and Mr Clark that racking the HVCB past the test/isolate position without the required PPE was a matter of concern. This remained the case when the formal investigation was instituted. The Applicant had a choice to deny this conduct, admit it, or say nothing specific and put the Respondent to proof. As per paragraph [50], the Applicant came close to admitting this to Mr Brown, but chose to deny it during the later stages of the formal investigation. I do not consider that the delay was productive of any unfairness to the Applicant in relation to the investigation of racking allegations, which formed the valid reason. I accept that the delay was likely productive of unfairness in relation the allegations concerning precisely which of the long list of checks were not done by the Applicant. [115] I accept that Mr Jilbert was misled by Mr Brown and his colleague in the demonstration that was performed for Mr Jilbert’s benefit in the conduct of the investigation. This demonstration had the potential to impact the view Mr Jilbert took of whether the Applicant had done the checks he was expected or required to do. This is not acceptable in any organisation, let alone one of the scale of the Repsondent with a dedicated People and Culture department. However, I do not think the demonstration, misleading as it was, materially affected the finding as to whether the Applicant had racked the HVCB past the test/isolate position without the required PPE. [2026] FWC 119 38 What other matters are relevant? [116] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. The Applicant submits that the dismissal is harsh. There is no doubt that the consequences of the dismissal for the Applicant are serious, in light of his age, his reduced employment opportunities in and around his regional location and the fact that the industry of his employment is not expanding. It has impacted his financial position in his retirement, and left him with a palpable sense of loss. Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable? [117] Each matter specified in section 387 as relevant must be considered and given due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.173 [118] I have found a valid reason for dismissal lay in the Applicant’s conduct in racking the HVCB past the test/isolate position without wearing appropriate PPE. Whilst it is no doubt correct, as the Applicant submits, that a dismissal can be found to be harsh, unjust or unreasonable not withstanding there being a valid reason for it, the delays and imprecision in the investigation phase do not in my view overcome this. I note that in Farquharson v. Qantas Airways, a Full Bench of the AIRC observed: “In circumstances where, as here, the merits of a termination of employment based on misconduct have been the subject of a full hearing in the Commission (in which the employer must establish the alleged misconduct on the balance of probabilities) and the dismissal has been found to be justified, it will be rare for a defect in an internal disciplinary process that preceded the termination justifying a conclusion that the termination was harsh, unjust or unreasonable. This is so because, almost invariably in such circumstances, it may be inferred that the outcome of the disciplinary process would have been the same even if there had been no such defect.”174 [119] As I have found, the Applicant knew and understood very early in the process that there were concerns about him having racked the HVCB past the test/isolate position without the appropriate PPE. He had an opportunity to respond to that allegation with the assistance of a support person and did so. The conduct was dangerous and serious and he was in no way disadvantaged in relation to this serious allegation by the effluxion of time. [120] As noted above, it is said on behalf of the Applicant that the termination should be found to be harsh. But the assessment of harshness does not rise or fall exclusively on the impacts of the termination on the Applicant – if that were the case I might be compelled to find the dismissal unfair even if I made a finding (which I have not) that the Applicant maliciously intended to harm Mr Brown and damage the Respondent’s plant and equipment. [121] As was demonstrated in Dyson v Centennial Myuna175 and Tracy v. BP Refinery (Kwinana),176 relied on by the Applicant, an assessment of whether a dismissal was harsh involves consideration not only of those personal impacts, but also of other factors. Those other [2026] FWC 119 39 factors might include the gravity of the misconduct alleged, the length and quality of service of the Applicant, the Applicant’s contrition in respect of wrongful conduct, and perhaps other matters too. [122] In this case, I consider it established that the Applicant created a risk to himself and potentially others by racking the HVCB past the test/isolate position without the appropriate PPE. I have found that he knew that he ought not have done this and knew that it was dangerous. The risk was elevated by leaving the HVCB not completely located in the service position. The conduct was of a gravity sufficiently serious to warrant termination. [123] Evidence was given about the Applicant’s service. It was not contested that it was extensive. But it was not unblemished either. Ms Van Der Merwe gave evidence that the Applicant had been issued with four written warnings in the past, between 2009 and 2023, the last of which Mr Van Der Merwe had some personal knowledge of. None of these warnings related to carrying out operational procedures in an unsafe manner. But some related to the tone of his communication with and about his colleagues. In particular, in an interaction with an employee of the People and Culture Department in 2009, the Applicant had referred to being “murder – suicidal” and posing the question “why die alone, I will take others out too, why should my family be the only ones to suffer”. He admitted in cross examination that he had said this, but not some other statements attributed to him at the time.177 Some of the comments made by the Applicant in relation to the incident the subject of these proceedings and the investigation were also inappropriate, even making some allowance for the stress he would appreciably have been under at the time. These include those referred to at paragraph [57] above as well as alleging corruption, suggesting that the fatality that had occurred at Yallourn was the result of a premeditated murder or manslaughter, suggesting that Mr Brown had deliberately threatened his life and colluded with Mr Jilbert and Mr Van Der Welden to cover it up, questioning whether Ms Van Der Merwe was intending to injure his mental health so as to force him to leave, and referring to a member of her team as her “underling”.178 [124] With the possible exception of the informal discussion with Mr Brown referred to in paragraph [50] above, the Applicant has shown no contrition for his conduct in racking the HVCB past the test/isolate position without the appropriate PPE, including at the hearing. [125] Another matter that I consider relevant to whether the dismissal was harsh is that the evidence establishes that Applicant was, for a time at least, intending to retire. He gave notice of that intention in April of 2024, although he changed his mind later that year. I do not place a great amount of weight of that save insofar as it signifies that the Applicant was actively considering bringing his time in the workforce to an end in any event within a time period not entirely inconsistent with when it did in fact end. Had the investigation proceeded more promptly, the employment would have ended sooner. [126] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable. Conclusion Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. The [2026] FWC 119 40 Applicant’s application is therefore dismissed. An order giving effect to this decision is published separately.179 COMMISSIONER Appearances: Mr S. Kemppi, for the Applicant. Mr M. Garozzo, for the Respondent. Hearing details: 11 – 14 August. 2025. Printed by authority of the Commonwealth Government Printer <PR795855> 1 My reasons for refusing that application were give ex-tempore on 12 August 2025. 2 PN6 3 Exhibit A2 at [79]. 4 PN822 5 Exhibit A2 at [86]-[87]. 6 Annexure JS-5 to Exhibit A2. 7 At [69] 8 At PN4291-4295. 9 Contained with Exhibit R6 (Statement of Brendan Jilbert). 10 PN1700-1711. 11 Exhibit R5 at [10]. 12 PN2938-2942. 13 At PN693. 14 Annexure BJ-13 to Exhibit R6 (at hearing book page 223). 15 Exhibit R3 at [65], Exhibit A5 at [35]. 16 PN1678 17 PN2162. 18 PN789-798. [2026] FWC 119 41 19 PN1769; Annexure BJ-34 to Exhibit R6 (at Hearing Book page 457, 467). 20 PN1783-1795, PN2229-PN2230, PN2817-2832, PN2921-2928. 21 PN225-PN232 22 Hearing Book p219-220, within Annexure BJ-13 to Exhibit R6. 23 PN543-551. 24 Although there is no dispute that he understood a second operator was required: See PN696-697. 25 PN693. 26 Exhibit A2 at [23]. 27 Annexure JS-4 to Exhibit A2 (at Hearing Book page 69). 28 Annexure JS-4 to Exhibit A2 (at Hearing Book page 59, 68). 29 Exhibit A2 at [54]. 30 Annexure JS-4 to Exhibit A2 (at Hearing Book page 65). 31 Exhibit R3 at [45]. 32 Exhibit R3 at [49], [95]. 33 Annexure BJ-34 to Exhibit R6 (at Hearing Book page 482). 34 Annexure BJ-34 to Exhibit R6 (at Hearing Book page 459). 35 Exhibit R3 at [56]. 36 Exhibit R3 at Brown at [72]. 37 PN2602 38 Exhibit R3 at [55]. 39 Annexure JS– 4 to Exhibit A2 Scully 1 (at Hearing Book page p64-65). 40 PN1154-1156, Exhibit R2. 41 PN2009. 42 PN201. 43 PN2160-2162, PN2258-2259. 44 PN264. 45 PN1378-1437. 46 PN268, 287-311. 47 PN2163-2164. 48 PN259,PN560-561, PN579-583, PN701-703, PN718. 49 PN2165-2166 50 PN334-336. 51 PN1206-PN1212. 52 PN349. 53 PN337, 348 54 PN1338-1343. 55 PN 391-392, 434, Annexure BJ-13 to Exhibit R6 (at Hearing Book page 219). 56 Exhibit R3 at [86]. 57 PN3958-3964, Exhibit R3 at [1]. 58 Exhibit R3 at [26]. 59 PN2341-2364. 60 PN2369-2380. 61 PN3390-3394. 62 Exhibit A5 at [9]. [2026] FWC 119 42 63 PN2569-2576. 64 PN2589-2592. 65 At [75]-[85]. See also PN2465-PN2466. 66 PN2591. 67 PN200. 68 Exhibit R5 at [9]. 69 Exhibit A4 at [6]. 70 PN1811. 71 PN1807. 72 PN2466-PN2466. 73 PN2579. 74 Exhibit R3 at [77]. 75 Exhibit A3 at [25]. 76 Exhibit R3 at [81]. 77 PN482. 78 PN416-426. 79 PN2464-2466 80 PN2495-PN2501. 81 PN2594-PN2599. 82 Annexure RC-1 to Exhibit R4. 83 Exhibit R4 at [12]. 84 Exhibit R4 at [15]. 85 PN2734. 86 PN2682-2689. 87 Annexure BJ-3 to Exhibit R6 (at Hearing Book page 185). 88 Exhibit A2 at [24]. 89 Exhibit A3 at [12]. 90 Annexure BJ-3 to Exhibit R6 (at Hearing Book page 185). 91 See also PN589. 92 Exhibit A2 at [24]. 93 Exhibit A3 at [13]. 94 Annexure BJ-31 to Exhibit R6 (at Hearing Book page 365). 95 Annexure BJ-3 to Exhibit R6 (at Hearing Book page 185). 96 Exhibit R3 at [39]. 97 PN266-277. 98 PN534-537. 99 Exhibit R4 at [17]. 100 Exhibit R4 at [26]. 101 Exhibit R5 at [27]-[31]. 102 PN727-749. 103 Exhibit R5 at [29]. 104 PN751. 105 PN768. 106 Exhibit R4 at [30]-[32]. [2026] FWC 119 43 107 PN3479. 108 PN3479. 109 PN3337-3341. 110 Jilbert at [23]. 111 PN3309-3317. 112 Exhibit R6 at [27]. 113 PN3204-3205. 114 Annexure BJ6-A to Exhibit R6 (at Hearing Book page 196). 115 Exhibit A2 at [29]-[33]. 116 Exhibit R6 at [36]. 117 PN3279. 118 Exhibit R6 at [37]. 119 Annexure BJ-8 to Exhibit R6 (at Hearing Book page 203). 120 Ibid. 121 PN3299. 122 PN3296. 123 Exhibit A1. 124 Exhibit A5. 125 Annexure BJ-9 to Exhibit R6 (at Hearing Book page 206). 126 PN3219-PN3213. 127 PN3407. 128 Exhibit R6 at [49]. 129 PN851. 130 Annexure BJ-13 to Exhibit R6 (at Hearing Book page 218). 131 Annexures BJ-15 and BJ-16 to Exhibit R6. 132 Annexure BJ-27 to Exhibit R6. 133 Annexure BJ-31 to Exhibit R6. 134 PN822, 495-497 135 PN830, 1282-1287 136 PN496, 820-821. 137 PN816, 820, 1342-1344. 138 PN1283-1286. 139 PN201. 140 The relevant reference to this is at page 222 of the Hearing Book. The exchange is at PN811-822. 141 Exhibit A2 (at Hearing Book page 37). 142 PN141-156. 143 PN181, 222. 144 PN603-617. 145 Exhibit A3 at [5]-[6]. 146 PN653-721. 147 Exhibit R7. 148 PN704-706. 149 PN1156-PN1157. 150 Exhibit R8 at [35]. [2026] FWC 119 44 151 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69]. 152 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373. 153 Ibid. 154 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685. 155 Edwards v Justice Giudice [1999] FCA 1836, [7]. 156 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]. 157 [2002] AIRC 1137 at [7]. 158 Opal Packaging Australia v. Calovski [2025] FWCFB 16 at [95]-[97]. 159 Hinchley v. North Goonyella Coal Mines [2009] AIRCFB 94. 160 PN3601. 161 Annexure BJ-34 to Exhibit R6 (at Hearing Book page 423). 162 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55]. 163 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151. 164 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998). 165 Ibid. 166 Annexure JS-1 to Exhibit A2 (at Hearing Book page 45). 167 Annexure JS-2 to Exhibit A2 (at Hearing Book page 50). 168 Annexure JS-3 to Exhibit A2. 169 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75]. 170 RMIT v Asher (2010) 194 IR 1, 14-15. 171 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7. 172 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542]. 173 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7]. 174 [2006] AIRC 488 at [41] 175 [2020] FWC 5486. 176 [2020] FWCFB 820 177 PN1526-1548. 178 Exhibit R8 at [28]-[33]. 179 PR795856.