Australian Services Union of N.S.W. v Sydney Water Corporation - [2008] NSWIRComm 1064 - NSWIRComm 2008 case summary — Zoe

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Australian Services Union of N.S.W. v Sydney Water Corporation

[2008] NSWIRComm 1064

Industrial Relations Commission (NSW)|2008-07-01

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Court

Industrial Relations Commission (NSW)

Decision date

2008-07-01

Source

Original judgment source is linked above.

Judgment (101 paragraphs)

[1]

Background and Chronology 57 Based on the evidence filed and the transcript. Only those matters considered relevant have been dealt with. Issues/events in dispute are dealt with more extensively in "Evidence". However due to the conflicting evidence in these matters it has been necessary to set out in greater detail and particularity some of the evidence filed. 58 The three dismissed employees (Ross Mansfield, Vaughan Francis and Darren Wotton) were employed by Sydney Water in the Civil Maintenance and Construction Division and based at the Miranda Depot. They were employed under the Sydney Water Award 2004 and pursuant to contracts of employment with, and the policies of, Sydney Water. 59 They were all dismissed by letters dated 1 November 2007. The letters to Vaughan Francis and Darren Wotton were in the following terms: Re: Disciplinary investigation. As you would be aware, Sydney Water has been undertaking an investigation into allegations arising from an incident on 16 October 2007.

[2]

Following a detailed consideration of the evidence, the allegations put to you were found as follows: 1. On 16 October 2007 you were found to be absent from work without permission from approximately 2 p.m. - substantiated. 2. You were in possession of and consumed alcohol while you were supposed to be on duty and in the knowledge that you may have been required to or operate plant and/or machinery, drive a motor vehicle or deal with the public - substantiated. 3. You were intending to drive your allocated Sydney Water vehicle after consuming alcohol - substantiated. 4. By your actions you failed to ensure a safe working environment for yourself and fellow workers - substantiated. 5. You failed to fulfil your responsibilities as Team Leader. You failed to follow the defined processes for the job you have been assigned earlier that day with the potential to place you and/or your fellow workers at risk of injury - substantiated.

[8]

63 All four men acknowledged during the course of cross examination that they were each aware of Sydney Water's zero alcohol policy, that if they were drinking on that day it was a clear breach of that policy and if they were to drink it was a dismissible offence. 64 There was no evidence that any performance issues or disciplinary matters concerning any of the four men had been raised previously during their employment, nor were any such issues raised during the course of the evidence. 65 Relevant details of the four men are as follows: · Ross Mansfield is aged 44, married with children. He commenced with Sydney Water as a Production Employee in October 2006. Prior to his dismissal he had been promoted to the position of Production Employee Level 2. He was remunerated at the rate of $22.63 per hour gross or $1,719.88 per fortnight gross. Following his dismissal he gained alternate employment on 15 November 2007 but is remunerated at both a lower weekly rate of $708.79 and lower overall take home pay (however this was not quantified in detail). · Vaughan Francis is aged 38, married with children. He commenced with Sydney Water as a Production Employee in October 2001. During his employment he had advanced to the position of Production Employee Level 4 - Team Leader, a position he had occupied for approximately 14 months. He was remunerated at the rate of $24.24 per hour gross or $1,842.24 per fortnight. Following his dismissal, he gained alternate employment on approximately 7 November 2007 and is remunerated at a base weekly rate of $972.00 but overall is on a lower take home pay (however this was not quantified in detail). He was also an ASU Union Delegate for the Miranda Depot. · Darren Wotton is aged 35, married with one child. He commenced with Sydney Water as a Production Employee in February 2003. During his employment he had advanced to the position of Production Employee Level 3 - Team Leader. He was remunerated at the rate of $23.42 per hour gross or $1,779.92 per fortnight. In early September 2007 he had successfully completed necessary "critical examinations" and was promoted to Production Employee Level 4 - Team Leader but had not received a payslip at the new rate of pay. Following his dismissal he gained alternate employment on approximately 7 November 2007 and is remunerated at a base weekly rate of $972.00 but overall is on lower take home pay (however this was not quantified in detail). · During their employment with Sydney Water all three men deposed that they worked "required overtime" and therefore their fortnightly earnings would fluctuate from pay period to pay period resulting in higher take-home payments. · The hours of work were 76 per fortnight. On termination they were all paid up until 1 November 2007 and in addition received a further two weeks' pay. · Jason Meredith commenced employment with Sydney Water in December 1989 as an apprentice Boilermaker stationed at Birrong Workshop. In 1998 after the closure of the workshop he relocated to Sydney East Depot as a Production Employee Level 2. In 2000 he was relocated to the Miranda Depot as a Production Employee Level 2. He progressed to the position of Production Employee Level 5/E-Developer. A position held for some 18 Months. He was remunerated at the rate of $26.62 per hour or $2,023.12 per fortnight. He also deposed that he worked required overtime with fluctuating take home payments. 66 Immediately prior to the events of Tuesday 16 October 2007, Darren Wotton had been on approved annual leave from the 5 October to the 14 October returning to work Monday 15 October. Mr Wotton flew to Darwin for a fishing holiday with his friend Bradley Nightingale (Exhibit 32). 67 After work on the evening of Monday 15 October, Darren Wotton and his wife deposed that they held a barbeque at their residence at 56 Caldarra Avenue, Engadine to share holiday photos taken of the trip. Bradley Nightingale and his wife were in attendance, as was Gary Dawson (Exhibit 33) the father of Janelle Wotton. Two cartons of VB stubbies were purchased by Mr Wotton for the evening. There were a number of stubbies left over (less than a carton) which were in Mr Wotton's fridge in the laundry together with various bottles of soft drink (including Bundaberg Ginger Beer). The Wottons did not tidy up the backyard either immediately after the barbeque or on the next morning and maintained that as a consequence there were a number of VB stubby bottles located in various positions around the backyard including under at least one of the chairs. They bottles were still there when the four men had their barbeque lunch on Tuesday 16 October. 68 Ross Mansfield had also been on been on annual leave, but from 28 September and returning on 15 October. He had worked with the sewer crew for the previous three months and was also working on sewers on Monday 15 October. 69 During the afternoon of Monday 15 October, Vaughan Francis and Jason Meredith carried out the requisite assessment of a job to be completed off the Woronora River near the Woronora Creek in the Engadine bush area. The job required locating a remote concrete chamber with a scour-valve requiring attention. Assessment was made of the material and tools needed to complete the job and the relevant Job Card was filled out. It was determined by Vaughan Francis that the required tools and material would be need to be lowered down a steep embankment with rope. No estimate was made as to the time it would take to complete the work required. Access to the site involved difficult terrain. 70 Tuesday 16 October was what the men termed "super Tuesday" with ordinary day work hours due to extend to 6.00 p.m. 71 On that Tuesday, all four men attended an ASU meeting at Matraville Depot from 8.30 a.m. to approximately 10 a.m. and then returned to the Miranda Depot. Ross Mansfield had contacted Gordon Stephenson on the Monday about travelling to the meeting with Darren Wotton who lived close by. 72 On his return to the Depot after the meeting, Vaughan Francis was issued with a new Job Card by Gordon Stephenson for completion of the required work to the scour-valve at the Woronora River site (Exhibit 7). Jason Meredith who had assisted in locating the work site the previous day and was issued with fire trail keys for the Mount Carmel Avenue gate which had to be accessed, was also to attend the job. Darren Wotton and Ross Mansfield were allocated as the work team with Darren Wotton advising Mr Mansfield that he would be working with him for the rest of the day. 73 Mr Stephenson also advised Mr Wotton that he was to do fire run work after the completion of the job. That work involved checking the hydrants on the fire trail at Kingswood Road, Engadine and ensuring that the fire valves were clear of weeds and that appropriate signage was highly visible. 74 Jason Meredith maintained that he had checked the work allocator that morning (the Maximo Information system listing current "reactive " and "non-reactive" workloads). The workload was "low" and Vaughan Francis (who was scheduled for "non-reactive" work that day) did not at that stage have any particular work allocated to him for the afternoon. Mr Meredith subsequently suggested (after they had finished their lunch) that Mr Francis assist Mr Wotton with the fire run work. 75 On Darren Wotton's return to the Depot he had tidied and replaced equipment in the break truck he was usually assigned but which had been used by another Sydney Water employee whilst he was on annual leave. 76 Vaughan Francis and Ross Mansfield prepared the pipeline truck. Mr Mansfield was sent to obtain rope from the equipment stores at the Depot. He also obtained both the necessary equipment for the scour-valve job and the later fire trail job. He said he was told by Paul Woods that they didn't have thin rope. Darren Wotton had then said that he had such rope at home and would get some on the way. 77 All four men in their witness statements referred to the rope as "Parramatta rope" so named because of its blue and yellow colouring (a length of such rope was tendered as Exhibit 11). Mr Francis also referred to it in evidence as "Telstra rope". However all four men, according to the minutes of the relevant disciplinary meetings of 23 October, only referred to "rope" . 78 Mr Woods (Exhibit 52) could not recall Mr Mansfield coming to the store, only Darren Wotton who he said collected various equipment. He deposed that firstly he had not heard of "Parramatta rope" and secondly that if he had been asked for thin rope he would have obtained it by cutting a length of thick rope that was in the store and separating the strands (Exhibit 52 - PW1 a photograph of thick white rope coiled inside a large white sack). However Vaughan Francis maintained that he had never seen such rope in the stores before. 79 Vaughan Francis and Jason Meredith drove to the Mount Carmel gate separately, Vaughan Francis arrived first at approximately 12 noon in his Sydney Water First Response utility. Darren Wotton and Ross Mansfield had arrived together in the pipeline truck. Darren Wotton was the only employee of the four who held the requisite HR licence for the pipeline truck which was a four-wheel drive vehicle and necessary to be used to access the site. Jason Meredith arrived last, at about 12.15 p.m., and was driving a four wheel drive Sydney Water utility. 80 Ross Mansfield had left the Depot driving the break truck normally allocated to Darren Wotton who was driving the pipeline truck. Both men had stopped on the way at Darren Wotton's house in Caldara Avenue to collect some Parramatta rope (and also Mr Wotton's large plastic container holding his files, job cards etc.,). The break truck had then been left at Darren Wotton's house and both men proceeded to the Mount Carmel gate in the pipeline truck. It was intended by Darren Wotton that the break truck be used during the afternoon to do the fire run work and that the pipeline truck would be left at his house overnight. The pipeline truck was usually used on Fridays to do inspections of the pipeline. It was suggested that having the break truck at the Mt Carmel gate would have blocked access. 81 Once the men were all at the Mount Carmel gate, Vaughan Francis left his vehicle at the gate (it was not a four wheel drive vehicle) and joined Jason Meredith in his vehicle and, together with the pipeline truck, the four men proceeded in the two vehicles along the track to the worksite location. A number of gates had to be opened and closed on the way and the trip took about 10 to 15 minutes. The work was completed by about 1.30p.m. and the men returned to the Mount Carmel gate. Mr Francis completed the Job Card (Exhibit 7) which was retained in a folder in his possession but subsequently produced to the Commission during proceedings. 82 Darren Wotton suggested that they have a barbeque lunch at his residence and they all agreed with this rather than going to the Heathcote Depot. It was maintained by Vaughan Francis and Darren Wotton that the Heathcote Depot was in a state of disrepair, had no hot water and was further away, taking into consideration the route to be taken, traffic lights to go through as compared to only roundabouts etc. Mr Meredith said that the Heathcote Depot was further than Mr Wotton's house by 5 or 10 minutes and that it was also being "cleaned up" in that October in preparation for being used whilst the Miranda depot was being renovated in November. 83 Lunchtime is generally considered to be of 30 minutes duration from the time of sitting down and this was acknowledged by all four men. There is no requirement that lunch must be taken at a Depot, with Sydney Water encouraging employees to have lunch "in the field" and carry on to the next job. Hot and Cold storage containers are provided in Sydney Water vehicles for such purpose. 84 Of the four men only Ross Mansfield had in fact taken lunch and a drink with him to work that day and said he had consumed some after the ASU meeting. It was generally said by the others that their practice as to taking lunch varied. Vaughan Francis and Darren Wotton would sometimes contact each other and arrange to have lunch together at some location and also sometimes had a barbecue lunch at Woronora River. 85 The men left the Mt Carmel gate at about 2.15 p.m. arriving at Darren Wotton's house about 2.30 p.m. On the way, Vaughan Francis went to the local shops (Woolworths) and purchased 8 bread rolls and 16 sausages for lunch. He did not purchase any drinks either for himself or any of the other men nor did he offer to purchase any drinks. He arrived at 56 Caldarra Avenue shortly after the others. 86 The men parked their 3 Sydney Water vehicles in the driveway of 56 Caldarra Avenue. The break truck was already parked at the rear of the property at the top of a driveway leading down to a battleaxe block. The location of the vehicles are shown in Exhibits 5b, 19b, 36a and 36b. 87 The four men proceeded to have a barbeque lunch. After they had commenced Mrs Janelle Wotton arrived home with her young son driving a green Commodore which was parked in the driveway immediately behind the pipeline truck (as shown in Exhibit 36b). When they finished lunch Vaughan Francis and Darren Wotton maintained that they discussed the proposed fire run work (Exhibit 10b) as contained in a manila folder titled "ENGADINE CHIP & PLATE" (Exhibit 10) that Darren Wotton had taken out of his vehicle and which was subsequently placed on the side of the barbeque. 88 The men all acknowledged during cross examination that they had taken longer than permitted for lunch. However they variously said that they had not taken a break that morning, the day was hot and windy and it was also "super Tuesday". They maintained it was their intention to resume work (on the fire runs) that afternoon. 89 The four men also maintained they did not consume any beer at any stage during lunch. Their respective evidence was that Mr Wotton had a schooner glass of water before he prepared the barbeque; Mr Francis had a drink of water in the house when he went in to cut up onions and he then got a Bundaberg Ginger Beer from the laundry fridge and because he had the bottle sitting on the concrete and it was getting warm, he later picked it up and placed it under his singlet (balancing it on the material of his work shorts on his left leg) to keep it out of the sun; Mr Meredith had a bottle of Solo drink he taken from the "hot & cold fridge" in his vehicle and Mr Mansfield did not have a drink of any kind. 90 Mr Wotton did not offer any drinks to any of the men nor did Mrs Wotton when she arrived home and came into the backyard. 91 They each maintained (as did Janelle Wotton) that the only person to have a beer was Mrs Wotton who had come out of the house carrying a VB stubby which she subsequently placed on the table next to Mr Wotton when she went back into the house to attend to her son. She returned to the backyard later and was present when Mr McNally and Mr Coles subsequently came up the driveway and spoke to the men. 92 The four men were still in the backyard of 56 Caldarra Avenue and their Sydney Water vehicles were still parked in the driveway when Acting Area Manager Christian McNally and Field Supervisor Steve Coles arrived in response to a complaint made to Sydney Water from a member of the public. 93 Christian McNally has been an employee of Sydney Water since the beginning of 1992. At the beginning of 2006 he was appointed to the position of Work Plan Coordinator based at the Matraville Depot. He had been appointed to the position of Acting Area Manager located at the Miranda Depot and had been in that role for six days before the incidents of 16 October 2007. 94 Stephen Coles has been an employee of Sydney Water since April 2001. He was appointed to the position of Field Supervisor in February 2006 and has responsibility for supervising the work of production employees at the Matraville Depot. He works a nine week roster which has him work afternoon shift on one week (2.30 p.m. to 11 p.m.) on supervisory duties across the whole southern area encompassing City East, Southern Suburbs and South Coast, During that week he would commence his shift at the Miranda Depot. He had therefore commenced work at the Miranda Depot at 2.30 p.m. on the 16 October and was still in the office when a phone complaint was answered by Gordon Stephenson. 95 Mr Gordon Stephenson has been employed with Sydney Water since January 1991. At the beginning of 2007 he was appointed to act on a temporary basis in the role of Work Plan Coordinator based at the Miranda Depot. He is one of a group of three Field Supervisors and is jointly responsible for the supervision of approximately 40 to 50 employees, including the applicants.

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96 At approximately 3 p.m. on the 16 October 2007, Ms Christine Sharp at the Sydney Water Customer Contact Centre, rang Mr Stephenson and asked him to take a call regarding a customer complaint. An anonymous female caller (a neighbour) complained to Mr Stephenson to the effect that Sydney Water trucks were parked at 56 Caldarra Ave and that "the guys from the trucks were drinking beer". She said she could not identify the registration numbers but could hear them saying "you want another beer" and carrying on. She was going to call the Police and wanted management to do something about it. She said that it had been going on all the time, this drinking from midday one o'clock until five or six in the afternoon and she wanted that stopped before anyone got hurt by the Sydney Water drivers. (Exhibit 53). 97 Mr Stephenson then went and spoke to Mr McNally and Mr Coles who were together in another office and advised them of the complaint, that he was unaware that they had anyone working there, he thought it might be contractors, but that someone would need to go and check it out. Mr Coles agreed to go and then left the office. After he had gone Mr McNally decided that he should also go. He deposed that he told Mr Stephenson that he thought it was a "potentially serious allegation", he was "uncomfortable" with Mr Coles going on his own as he wasn't from this area and they didn't know what he would find. He then followed, ringing Mr Coles as he was driving to Engadine to let him know he was joining him (at this stage Mr Coles had not yet left the Depot). 98 Later that day Mr Stephenson sent Ian Nisbet an email detailing the events of the day and the complaint made (Exhibit 53 - GS1). The e-mail was also copied to Mr McNally and Mr Coles. 99 Mr McNally had not been aware of what job had been allocated to the men that day and had made the assumption when he subsequently saw the pipeline truck that they were supposed to be down inspecting the Woronora pipeline which was a routine weekly inspection job. In subsequent conversations with Mr Stephenson he did not correct his knowledge about that. 100 Mr McNally arrived first at 56 Caldarra Avenue at 3.29 p.m. and took photos of the Sydney Water vehicles in the driveway with his mobile phone (Exhibits 32a and 32b). He also called Mr Stephenson to let him know he had arrived. Mr Coles then arrived and they proceeded up the driveway and observed the four men sitting in the backyard. They recognised who they were and observed VB stubby bottles in various positions in relation to the three men dismissed (disputed by the men concerned). 101 The seating arrangements and location of the four men and the location of Mr McNally and Mr Coles was detailed and marked on a copy of a Google Earth photo of the premises (MFI 5c). There was no significant dispute about who was sitting where, apart from some minor and irrelevant differences about distances and precise direction each was facing etc., which I do not consider require further consideration, apart from issues arising from the position of Mr Coles in relation to Mr Francis. 102 A short conversation ensued between Mr McNally and Mr Wotton about what the men were doing, the content of which is disputed as between the applicants and Sydney Water. (To be dealt with in detail below) 103 The men maintain that they were not drinking beer whilst having lunch and that Darren Wotton did not admit that "we've only had a couple" as maintained by Mr McNally and Mr Coles. Mr McNally then asked Jason Meredith to speak with him around the side of the house and did so in company with Mr Coles. He told Mr Meredith about the complaint. 104 The content of the conversation between Mr McNally and Mr Meredith is also disputed. Mr Meredith maintains that he did not acknowledge that he was sitting with the other men who were all drinking beer and that he was just as bad, as stated by Mr McNally. 105 Whilst this conversation was going on around in the driveway Mrs Wotton began clearing up stubbies from the area placing them in a plastic shopping bag she obtained from inside the house. She was assisted in this by Vaughan Francis. 106 Both Mr McNally and Mr Coles maintained that they did not observe any empty beer bottles in the backyard apart from those specifically mentioned in connection with the men. 107 Mr Meredith then returned to the other men who had remained seated (except for Mr Francis) and told them that the "managers" were out the front making a decision. 108 Mr McNally and Mr Coles had a brief discussion about what they should do. Mr McNally then spoke to Ian Nisbet by phone informing him of the situation as he saw it, Mr Nisbet then told him to advise the men that they were stood down on pay pending an investigation. 109 Mr McNally and Mr Coles went back to the men and conveyed that advice and Mr McNally requested that they remove their personal gear from the vehicles so they could be moved. There is some dispute about what was said about moving the vehicles. The men maintain they were told to move their vehicles by Christian McNally. This is denied by Mr McNally who maintains he told them to give him their keys and he would arrange for someone to come and take them to the Depot. Mrs Wotton moved the Commodore. Before moving the pipeline truck Mr Wotton removed his gear from the break truck. The other three men moved the other Sydney Water vehicles out on to the road and then removed their gear. 110 Mr McNally also maintains that at this time, as the men were moving about, Darren Wotton deliberately bumped into him twice and that he could smell alcohol on both Darren Wotton and Vaughan Francis. The two men denied that alcohol could have been smelt as they weren't drinking and it was also a windy day. Both Mr Wotton and Mr Francis maintained that Mr McNally was never close enough to them to have been able to smell alcohol. Mr Wotton and the other men denied that the bumping occurred. Mr McNally said that he was not close enough to Ross Mansfield to be able to smell alcohol. He smelt no alcohol on Jason Meredith. Mr Coles maintained he was not close enough to the men to be able to smell alcohol and that he did not see anything "untoward" in relation to Mr Wotton. 111 Mr McNally again called Mr Stephenson at the Depot, reported on the situation and requested that employees be sent out to pick up the vehicles to take them back to the Depot. Mr McNally took further mobile phone photos of some of the vehicles when they had been parked out on the roadside (Exhibits 36e and 36d). 112 Mr Francis then called Peter Campise of the ASU to tell him what had happened. Mr Campise called him back a short time later after having spoken to Ian Nisbet and confirmed that they had been stood down and said he would be contacting him further to organise a meeting with the four men.

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113 The men declined offers of lifts home from Sydney Water. Mr Coles spoke to Mr Francis about providing a lift but this was rejected by Mr Francis. This was in the presence of Mr Wotton who made a negative comment in reply("you're kidding aren't you?"). Mr Wotton subsequently drove the other three men to their homes. 114 Given the significance of the timing of how the events of that afternoon at 56 Caldarra Avenue unfolded and the disputed evidence between the parties - listed below is the sequence of phone calls (and mobile phone use) during the period 3.00 p.m. to 4.30 p.m. The times in relation to the mobile phone photos were ascertained from Mr McNally who was asked to check his mobile phone for that information during the course of cross examination. The information listed (caller, time of call, person called and duration of call) is taken from the mobile phone records (produced on subpoena) of the following persons: Christian McNally - Exhibit 39 Vaughan Francis - Exhibit 45 Steve Coles - Exhibit 56 Gordon Stephenson - Exhibit 54 (who Ian Nisbet - Exhibit 40 was using Grant Mason's phone) Time Caller Called Duration of Call 15.15 C McNally S Coles 13 seconds 15.26 C McNally S Coles 14 seconds 15.28 C McNally S Coles 51 seconds 15.29 C McNally mobile phone photo vehicles (Ex. 36a) 15.29 C McNally mobile phone photo vehicles (Ex. 36b) 15.30 C McNally mobile phone photo vehicles (Ex. 36c) 15.30 C McNally G Stephenson 44 seconds 15.46 C McNally G Stephenson 2.14minutes 15.49 C McNally I Nisbet 22 seconds 15.50 C McNally Depot 55 seconds 15.53 C McNally I Nisbet 46 seconds 15.54 I Nisbet C McNally 13.29 minutes 16.08 C McNally wife 22 seconds 16.09 C McNally G Stephenson 3.03 minutes 16.18 C McNally Matt McNally 1.34 minutes (brother & Sydney Water Supervisor) 16.18 V Francis P Campise 6.00 minutes 16.21 C McNally mobile phone photos vehicles (Ex. 36e) 16.22 C McNally mobile phone photos vehicles (Ex. 36d) 115 Before Mr McNally left 56 Caldarra Avenue and returned to the Depot, he made basic notes of the events of the afternoon (3.00 p.m. to 4.30 p.m.), which he recorded in his work diary (Exhibit 35 - CM1). 116 After noting that on arriving they found four vehicles parked at the address, Mr McNally went on to record:- "We could hear voices coming from side of the property so walked down and found four Sydney Water employees Jason Meredith, Darren Wotton, Vaughan Francis and Ross Mansfield. I noticed Ross Mansfield with a Beer between his legs while sitting on chair Darren Wotton had open Beer on table directly adjacent to him Vaughan Francis had bottle under his shirt. I asked what they were doing there and Darren said they were having some lunch. I said what are you doing drinking Beer while your suppost to being doing (sic) the pipeline inspection. Darren said we have only had a couple. 3.40 p.m. Jason Meredith said they were having some lunch I said how long have you been here Jason said since approx 2 p.m.. Someone had gone to the shops to get some sausages." 117 Mr McNally then went on to note the contact with Ian Nisbet and the decision made. The notes then go on " I advised the four employees I needed keys and had arranged for vehicles to be picked up." He went on to detail that Mr Stephenson arranged this. 118 Before returning to the Miranda Depot that afternoon Mr Coles also made a contemporaneous diary note. However the next morning he "whited out" that entry with liquid paper and rewrote his notes over it. A photocopy of the entry for 16 October was attached to his witness statement (Exhibit 55 -SC1) and the original diary was also tendered (Exhibit 57). 119 After briefly detailing how they came to be there and the sequence of events on arrival (which he put as 5 min after receiving a call from Christian, already on site, at approx 3. 35) Mr Coles went on to note as follows: - " - 4 Employees on site - Darren Wotton - Vaughan Francis - Jason Meredith (Act F(Supervisor) - Ross Mansfield - beer was located on the premises at the table - Christian spoke to employees - they claimed they were having lunch - question asked how many beers had been consumed, they replied one. 3.45 -Christian and I went to front of premises - Christian phoned Ian Nisbet - Crew (employees were stood down on full pay immediately) - trucks were moved to front of premises - keys then gathered - other Syd water employees assisted in trucks returning Miranda Depot. - Crew were told they would be notified within 24 hours of further investigation."

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Mr Coles left the site at 4.30 p.m. to return to the Miranda Depot. 120 No contemporaneous notes were made of the events of the day by any of the four men or by Mr Campise. Mr Campise subsequently met with the four men on the 22 October . There were no notes of that meeting. 121 On the 17 October, a meeting was held at the Matraville Depot concerning the events of the previous day attended by Ian Nisbet, Robert Hutchinson, William McLachlan, Sophie Alifierakis (from Human Resources and who has since left Sydney Water), Michael Keelan, Sydney Water's General Manager (present for a brief time) as well as Christian McNally and Steve Coles. 122 No formal notes were taken of this particular meeting however Mr Hutchinson made his own file note dated 17/10/07 (Exhibit 46) which essentially briefly lists the events of 16 October. Whilst the document is headed "Civil Mtce - Alcohol Incident" there is no reference in the matters listed to either beer or alcohol or any detail as to what was said by either the four men or Mr McNally or Mr Coles. The notes go on to record detail of a second phone contact made with Gordon Stephenson, by the person who had initially complained, concerning doorknocking of surrounding houses by the lady from No 56 to try to find out "who dobbed them in". It was also noted "we still don't have her details". 123 The notes also list a number of possible follow up actions for the investigative team (reviewing job cards, vehicle records etc.,) and seeing "when these 3 or 4 have worked together - give dates to review "for (illegible) records as an indicator whether neighbours statement of frequency is true". In addition the issue of whether they canvass the neighbours was flagged. Time slots for interviewing the four men are also listed. 124 As a result of that meeting Mr McNally and Mr Coles were asked to put together a statement in writing, providing as much detail as they could remember. These statements were subsequently provided and the investigating team had them prior to the disciplinary interviews with the four men. Those statements were not provided to either the four men or Mr Campise.

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125 Mr McNally's written statement was dated 22 October (Exhibit 37) and detailed relevantly as follows: 4. I noticed Ross Mansfield with a beer between his legs while sitting on a chair. Darren Wotton had open beer on the table directly adjacent to him. Vaughan Francis had bottle under his singlet. I did not see Jason Meredith with a beer. The only other people I saw on the premises that afternoon was one woman and one child. 5. I asked what they were doing there and Darren said they were having some lunch. I said what are you doing drinking beer while youre supposed to be doing the pipeline inspection. Darren said we have only had a couple. 6. At 3.40 pm I spoke to A/Field Supervisor Jason Meredith while Steve Coles was present. He said they were there having some lunch. I asked how long have you been here? Jason said since approximately 2 pm. He said someone had gone to the shops to get some sausages. At this stage I said to all employees involved that they could not drive the vehicles as they had been drinking. There was no response. 7. .........re contacting Ian Nisbet.......... 8. There was a Commodore blocking the SW trucks so I asked for it to be moved. Darren said we can't even drive our trucks (Vaughan then told Darren to Shut Up). I said to Darren I'm not asking you to drive the truck I just need the car moved so I can get the trucks out. The female at the property then moved the commodore. The SW staff then also removed the trucks off the property onto the street. I did not ask them to do this. At 4:15 p.m. I advised the four employees that I needed the keys and had arranged for their vehicles to be picked up. 9. As they were moving about I spoke to Darren Wotton who asked me who I had contacted, I said Gordon Stephenson & Ian Nisbet. Darren said you didn't have to do that, I said you didn't have to be here drinking while you should be out working. It was during this time I could smell alcohol on Darren and Vaughan Francis. I could not smell alcohol on Ross Mansfield, but I was not very close to him. I could not smell alcohol on Jason Meredith who was standing within a couple of feet from me. 126 Mr Coles' written statement was dated 23 October (Exhibit 47) and relevantly details as follows: 5. Beer was located at the premises on the table next to Darren Wotton. Vaughan Francis had a bottle under his singlet. I could not see whether Ross Mansfield had a bottle as my view of him was blocked. I did not see Jason Meredith with a bottle. 6. I could not smell alcohol on any of the four employees. Christian did most of the talking while I stood and observed, so I was not as close to them. I spoke to Jason Meredith about what they were doing there but I could not smell beer on him. 7. When Christian spoke to the employees, Darren said they were having lunch. Christian asked how many beers they had consumed, and Darren replied a couple. Christian asked how many is a couple. Someone then mumbled one, I think it was Vaughan. 8. At 3:45 p.m. Christian and I went to the front of the premises and Christian phoned Ian Nisbet. Crew employees were stood down on full pay immediately. Christian advised the four employees that someone was coming to collect the trucks and we would need the keys. Darren stated that he wanted them of his premises, and the employees moved the trucks to the front of premises on the street. We did not tell them to move the trucks. Keys were then gathered. 127 On the 18 October,, Mr Hutchinson spoke separately to both Mr McNally and Mr Coles by phone and made the following short file notes of the two conversations (Exhibit 48):- " Steve - saw what is stated in Christians report Didn't see beer between Ross legs - Steve didnt smell on them - Spoke to Jason didnt smell it - Christian did most of the talking, steve stood & observed, so not as close to the 4. Christian - Smelled alcohol - Darren Wotton - Vaughan Francis Not---Ross Mansfield didn't get much closer to him. - Jason did not smell, was close to him - Vaughan was in the singlet not uniform" 128 Mr Hutchinson was unaware that Mr McNally had taken any mobile phone photos of the vehicles in the driveway. 129 On the 18 October Mr Hutchinson also prepared a three page Disciplinary Investigation - Fact Finding Report, which was noted as "PRIVATE AND CONFIDENTIAL" (Exhibit 49) and listed the following: 1. Issues to be Investigated (a) whether staff absented themselves from work without permission (b) whether staff were consuming alcohol during work hours (c) whether staff were intending to drive a Sydney water vehicle after consuming alcohol. 2. Summary of facts Covering the complaint, who attended the address, who was present and what Gordon, Christian and Steve and Christine Sharpe have each noted occurred and copies of the notes. 130 Under each of the three listed and specified Issues there was noted the "Information gathered" which indicated it was essentially drawn from the available information at the time (already referred to above) together with detail as to the various vehicles allocated to the four men and their home addresses. Relevant breaches of Sydney Water Policy were also noted. There was also noted a "Finding of Fact" for each issue as follows: Issue A: "It appears that the staff were absent from work from at least 2pm as stated by Jason to 3.30pm when Christian and Steve arrived at the premises. It appears that they were absent from work for more than the normal lunch period. It is warranted that this issue be put to the employees as an allegation." Issue B: "Three employees were observed at the premises in possession of open beers, indicating that those three employees consumed some amount of alcohol. It is further possible that the fourth employee also consumed alcohol. This is in breach of Sydney Water policy, and should be put to each of the employees as an allegation." Issue C: "It is not known whether the four staff on the site intended to return to work in the afternoon or to proceed directly home, or if any or all of them intended to drive the Sydney Water vehicles. Those staff who do not live at 56 Caldarra Ave may have intended to drive their vehicles directly home as they would require them for work the next day. All of the staff may have intended to return to work in the afternoon driving the vehicles. It is appropriate that this issue be put to all four of the employees as an allegation." 131 Under the heading "Outcome", three assessments were made in line with the finding of facts above. Under the heading "Recommendations", it was recommended that given the seriousness of the allegations and "the unknown information", all three issues be put as allegations to the four employees, and that this be conducted in line with section 4.1.2 of Sydney Water's Disciplinary Policy. 132 The investigative team that was set up consisted of Robert Hutchinson, William McLachlan and Ivan Pavlovic (who was to take over Ian Nisbet's position the following week on an acting basis whilst he was on annual leave). This was formally done by Mr Petterson on his return from leave on Monday 22 October. Mr Petterson had been briefed about the situation by Mr Nisbet by phone on Sunday 21 October. 133 On the afternoons of the 17 and 18 October, Mr McLachlan contacted each of the four men by phone and arranged to meet them individually at their homes to hand them letters from Sydney Water and collect their work mobile phones. It was arranged that Ross Mansfield would attend Darren Wotton's home for such purpose. At that stage Mr Mansfield had not told his wife that he had been stood down. 134 Each of the four men received a letter from Ian Nisbet, dated 19 October, formally advising of the requirement to attend a disciplinary meeting to respond to the specific allegations as listed (the same allegations as outlined in the termination letters of 1 November above). The meeting venue, time and date (23 October) and entitlement to one witness were advised. The letter also indicated that Sydney Water took the allegations "very seriously" and went on to state: "You should be aware that following this meeting, Sydney Water will be considering whether disciplinary action is appropriate, up to and including termination of employment, in line with Sydney Water's Disciplinary Policy. A copy of the Disciplinary Policy and Procedure is attached for your information." 135 In the week following the events of 16 October, Mr McLachlan had also asked Mr Stephenson to visit the worksite the men had attended at the Woronora River location and take photographs of the scour valve. There is no issue raised that there was not work done on the scour valve. However there are issues raised by Sydney Water as to whether it was necessary to have rope, as claimed by the men, in order to carry out the job and whether this was used as part of an explanation to justify being at 56 Caldarra Avenue (see findings in Disciplinary Hearing Report). 136 There were no photographs of the work on the scour valve, that might have been taken by Mr Stephenson, tendered as evidence. The only written material in evidence from Gordon Stephenson were copies of the two emails he sent concerning the member of the public and the complaint made as attached to his witness statement (Exhibit 53 - GS1 and GS2). 137 On 23 October 2007 the four men were individually interviewed at Sydney Water's Civil Maintenance Headquarters at Potts Hill. Mr Campise attended each interview. The interviews were held with Ivan Pavlovic, Robert Hutchinson and William McLachlan. The order of the interviews was as follows: Ross Mansfield - 12 noon Jason Meredith - 1 p.m. Vaughan Francis - 2 p.m. Darren Wotton - 3 p.m. 138 The allegations detailed in the letters of 19 October were generally put to each employee along with a series of questions. Although whether each of the allegations was relevantly put to each employee was disputed by Mr Slevin in both written and oral submissions. 139 The four men essentially acknowledged that they had taken a longer lunch break than permitted but denied drinking beer. Darren Wooton, Vaughan Francis and Jason Meredith said the only person drinking beer was Mrs Wotton. They all acknowledged that they were aware of Sydney Water's Drug and Alcohol Policy. There were VB stubby bottles still in the backyard from a barbeque the night before. They each related events of the morning and the job allocated and how they came to be at 56 Caldarra Avenue. 140 They were each asked if they heard Christian ask what they were doing there drinking beer and Darren reply we have only had a couple. Jason Meredith said he didn't hear that, Ross Mansfield said he didn't hear anyone admit drinking, Vaughan Francis said he heard him say my wife's having a beer and Darren Wotton said "no way" his wife was having one. Mr Meredith and Mr Mansfield also maintained that Mr McNally asked them to move their Sydney Water vehicles from the property onto the street. 141 Each of the four men also provided three short, "To Whom It May Concern" letters, dated 22 October, in support, which were attached to each of the four men's respective witness statements. On objection from Mr Taylor one of those letters was not admitted as part of the evidence of the four men as it did not indicate who it was from (subsequently ascertained as Doris Wotton). However signed copies of those three letters with additional unidentified short handwritten notations were subsequently handed up during the course of cross-examination of Mr Petterson and marked as MFI 5a, MFI 5b and MFI 5c. It was subsequently established that the hand written notations were made by Mr McLachlan and the letters were then formally tendered as exhibits. As those letters were referred to during the investigative process, they are set out below: Janelle Wotton, (wife) (Exhibit 51a) Doris Wotton 54 Caldarra Ave (Exhibit 51b) David Jehan 41 Porter Rd (adjoining neighbour) (Exhibit 51c) 142 The three letters were as follows:- Janelle Wotton : " On the afternoon of the 16 October 2007 I arrived home with my son at approximately 2.45 p.m. and my husband and three work colleagues were at home having a BBQ lunch. I went on to joke with them about not giving myself and my son any sausages to which they replied they didn't know I was going to be there. I then got myself a beer, joking if we couldn't have any of their sausages then I would have a beer in front of them knowing full well they couldn't drink during work hours. I then had to attend to my son inside the house and left my beer on the back table while I went inside. I had just walked back outside and saw two managers from Sydney Water walk around the back of my house, without knocking or announcing themselves. What followed was an assumption that the beer was one of the boys. In regard to the few beer bottles in my backyard there were left over from the previous night's BBQ. In relation to a complaint made by one of my neighbours we have had previous trouble with this neighbour as had several other neighbours. I hope my statement will help with this misunderstanding." Hand written notation of Mr McLachlan: " Tendered by Ross Mansfield"

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Handwritten notation of Mr Mclachlan: "Tendered by Ross Mansfield: Visited Mr Jehan on the afternoon of 25.10.07 in company of I. Pavlovic to verify validity of above statement. Mr Jehan agreed it was his statement and was aware that he may be required to attend any formal proceedings should they occur." 143 There was no subsequent interview held with Janelle Wotton. The investigative team considered her statement was sufficient information. 144 During the disciplinary interviews handwritten notes were made by each of three interviewers, however Mr Pavlovic subsequently shredded his notes for reasons of confidentiality. Both Mr McLachlan (Exhibit 50 - WM1) and Mr Hutchinson (Exhibit 44 - RH1) retained their notes. A final typed Record of Interview for each employee was prepared by Mr Pavlovic based on the three handwritten records (Exhibit 41 - IP1, IP2, IP3, and IP4) and was finalised by the 29 October and provided to Mr Petterson. 145 There were no notes taken during the meeting by any of the four men nor by Mr Campise nor were any subsequent notes put together by them prior to the preparation of the witness statements filed on their behalf. 146 The four men were provided with typed copies of their respective record of interview on the 1 November when they were advised by Mr Petterson that they were terminated and were handed their respective letters of termination. 147 All four men maintained in their witness statements and evidence that there were instances where they gave more extensive responses to the questions asked and also different responses to those set out in the typed records of interview. 148 On the 25 October, Mr Pavlovic and Mr McLachlan visited a number of locations to verify information provided by the four men during the disciplinary interviews as follows:- The Matraville Depot, The Miranda Depot, The Heathcote Depot, 54 Caldarra Avenue, Engadine and 41 Porter Road, Engadine. 149 During the visit to the Matraville Depot they held a further "Fact Finding Interview" with Christian McNally and Steve Coles to "further clarify some of the observations and statements made" by the two Managers. No details of the accounts given by the four employees interviewed were provided to the two men. A typewritten record of this meeting was made (Exhibit 42) as follows: IP - Can you clarify the location of the bottle when you arrived. CM - had an open beer on the table next to him in a black wet suit cooler holder, Ross had a beer in his lap between his legs. IP - please clarify where between his legs Ross had the beer. CM - in his lap (indicating with his hands a location between his crutch). IP - What about Vaughan and Jason. CM - I didn't see Jason with a beer and Vaughan had a bottle under his shirt. IP - How were the vehicles moved. CM - Darren was fired up and said "he want them off the property" I asked for the Commodore to be moved and asked for the keys. (For the trucks) the wife then moved the Commodore. IP - Did you at any time ask for the trucks to be moved. CM - No just the Commodore. IP - Your statement indicates on arrival, you put an open question to the group, "what are you doing here" and "what are you doing drinking beer". What was the response. CM - Darren said "we were having some lunch and we've only had a couple". IP - are you sure that's what he said CM - yes definitely SC - yes I heard that too. IP - How close did you get to Darren on the day. CM - I was talking to him face to face and he past (sic) me and bumped my shoulder twice when getting the tray out of his truck. Darren also asked me who else I had contacted. I told him Gordon Stephenson and Ian Nisbet IP - did you come in contact with Vaughan CM - only when he walked past me between the truck and the house. IP - Did you make any other observations CM - I could smell alcohol on the both of them. IP - was there any paperwork or plans or evidence of a BBQ such as chips, food on the table when you walked back in. CM - No there was never any food on the table or paperwork. CM - Only the bottle that Darren had and when we came back everything was cleaned up. 150 Mr McNally also provided a hand drawn sketch showing the placement of the Sydney Water vehicles located at 56 Caldarra Avenue, where the men were sitting in relation to the table and a dotted line showing the path he and Mr Coles had taken to reach the point in the backyard where they had stopped and spoken to the men (Exhibit 38). This showed Mr Meredith vehicle parked parallel to the break truck at the rear of the backyard facing the barbeque area. However this was subsequently shown to be incorrect, as based on the mobile phone photos taken by Mr McNally, Mr Meredith's vehicle is shown parked directly in front of that of Mr Francis and pointing towards the rear of the property. 151 The mobile phone photos Mr McNally had taken were also shown to Mr Pavlovic but were not considered especially relevant. Mr Hutchinson was not aware that mobile phone photos had been take.

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152 At the Miranda Depot they interviewed Paul Wood and inspected the stores area where they observed a "generous supply of the white five-strand or six-strand rope." 153 They also visited the Heathcote Depot because of the issues as to its suitability as a location to have lunch raised by Vaughan Francis and Ross Mansfield (hot water not available and not in good condition) as well as Darren Wotton as to his house being closer. They considered the depot to be in repair, clean and tidy with functional facilities including a "Zip Miniboil" hot water service in working order but not switched on. 154 They also visited the two addresses listed above being, the residences of neighbours of Darren Wotton (Mr Jehan lives on the adjoining battleaxe block). No one answered the door at Doris Wotton's home. Mr Jehan was asked to confirm that he had prepared and signed the letter provided, which he did. 155 During the course of their investigations that day they also measured, on their vehicles' trip-meter, the distance between the intersection nearest the worksite at the Mount Carmel gate and the Heathcote Depot and between that intersection and Mr Wotton's residence. They did not record those readings. They found the Heathcote Depot was closer to the worksite than Mr Wotton's residence. 156 The investigative team then considered the general conclusions they were reaching, with Mr Hutchinson typing a Draft Disciplinary Report. This was finalised and provided to Mr Petterson on Monday 29 October. Discussions were then held between the team and Mr Petterson regarding the report and the application of Sydney Water's Drug & Alcohol Policy. 157 A final Disciplinary Hearing Report, signed by the three members of the investigative team, was subsequently provided to Mr Petterson on the 30 October (Exhibit 43 - RP4). 158 The Report followed the following format: 1. The Allegations The five allegations put to the employees in the letter of 19 October and during the meeting of 23 October were set out. 2. The Facts and Responses from Employees Information gathered: A short summary of relevant information (statements from Manager, Field Supervisor, Work Plan Coordinator, Call Centre Operator) and dates of relevant meetings. Finding of fact to support the allegation: "See fact finding report As the version of events put forward by all four employees were the same or substantially similar, the responses of all four employees have been addressed together under each allegation." 3. Were the Allegations Substantiated? The findings and conclusions reached were detailed. All five allegations made were found to be substantiated. The only allegation found not to be substantiated was that Jason Meredith had been drinking. 4. Mitigating Circumstances No mitigating circumstances raised during interviews and recommended this be put to employees if recommendation approved. 5. Recommendations Due to seriousness of findings termination of employment recommended for Wotton, Francis and Mansfield. Demotion and transfer (as detailed in 1 November letter) recommended for Meredith. 159 2. The Facts and Response from Employees" - The employee responses to the allegations as detailed in the Report can be briefly and relevantly summarised as follows: Allegation 1: (being absent from work) s Employees acknowledged - normal lunch break half an hour, they had been at house at least one hour and had taken longer than normal lunch. s Employees believed saving time over all, next job Engadine area, Darren's house closer than returning Miranda Depot, were planning next job, working to 6 p.m., trucks to be kept overnight. s Vaughan said had lunch at Darren's before a couple of times, Darren said never. s Heathcote Depot inadequate facilities, no hot water (Vaughan), Depot and house same distance from job (Darren). Allegation 2: (consuming alcohol) s Employees maintained that they did not drink any alcohol. s Reports from Manager ("McNally") and Field Supervisor ("Coles") - beer bottles observed on premises either held by or next to employees. s General response - bottles left over from BBQ night before, not cleaned up. Wotton -observed with bottle on table next to him: response- wife having a beer, her bottle, statement from wife in line with this. Mansfield - observed by McNally with bottle between legs in crutch: response - no bottle between legs, two bottles on ground beside chair (one unopened one not empty). Response taken back to McNally/Coles. McNally confirmed location of bottle, Coles could not see, view obscured. Both later saw one bottle on ground next to his chair. Francis - observed with bottle held under shirt: response - holding ginger ale in brown bottle, keeping out of sun. Meredith - not observed with bottle: response - drinking soft drink from esky. s McNally reported asking employees why drinking beer. Both heard Wotton state " we have only had a couple". Coles heard Francis mumble he had one. Wotton -denied this, says he replied "my wife is having one". Francis - heard Darren say "my wife is having one", denied he mumbled one. Meredith & Mansfield - "did not recall" hearing Darren answer. s Responses put to McNally & Coles (meeting 25 October) - firmly maintain heard Darren say " we have only had a couple", did not mishear. s McNally reported that when employees asked why drinking beer none denied it. Francis - asked why didn't show bottle under shirt to show not drinking, said in hindsight wished he had. Wotton - asked what Vaughan drinking, response - soft drink from fridge (coke, diet coke, ginger beer) s McNally reported smelling alcohol on Wotton and Francis when standing near them. Wotton & Francis - denied this. Francis - acknowledged McNally standing next to him at one stage. Wotton - stated not possible, McNally not close enough, windy day. s Responses put to McNally & Coles 25 October. They maintain McNally close proximity Francis and Wotton, Wotton twice physically bumped McNally when moving personal property from truck. Francis passed close to McNally at this time. Coles confirms Francis and Wotton passed McNally, not close enough himself to smell alcohol. Allegation 3: (intention to drive after consuming alcohol) s All four employees stated about to return to vehicles to commence work at around 3:30 p.m. when McNally and Coles arrived. Each denied consumed alcohol. Mansfield stated no allocated vehicle, no intentions of driving that day, drives if required. s Questioned on vehicle movements: Wotton & Mansfield stated went to Darren's house first to drop off small truck and collect rope. s Questioned as to reasons for this. Mansfield - needed small truck later in day, not needed at pipeline job, potentially block street, rope from Darren's house needed for pipeline job, no rope available at Miranda Depot. s Moving trucks off property: Mansfield & Meredith stated directed to move trucks off property onto street by McNally and Coles. Asked, if had been drinking, why this direction given. Mansfield - stated McNally & Coles asked him to move vehicles Meredith - stated McNally directed all four move vehicles. Francis & Wotton - did not mention issue. s These responses put to McNally & Coles - did not direct employees to move trucks. Once decided employees may have been drinking, necessary that other employees come and collect vehicles. Commodore blocking driveway, asked this be moved. At same time employees moving back and forth from trucks to remove personal possessions, while this going on McNally and Coles not directly watching employees, employees proceeded to move trucks of own accord. Allegation 4: (failure to follow safety regulations) All employees denied drinking, did not admit failing their responsibilities. All employees agreed responsible to work safely. All employees acknowledged understood drug and alcohol policy. Meredith acknowledged he was health and safety rep. for Depot. Allegation 5: (failure to meet obligations) (Meredith - Field Supervisor)( Francis & Wotton -Team Leader) Employees admitted not fulfilling responsibilities by taking extended lunch break. As did not admit drinking did not admit failing responsibilities by allowing this conduct. All understood drug and alcohol policy. Francis & Wotton - acknowledged as Team Leaders, authorised extended lunch break not good example other employees. Meredith - acknowledged understood responsibilities of position, responsible to keep employees being supervised on track. Advised before he needed to be more assertive, said did not get training as field supervisor. s Towards end of meeting Wotton queried who made the complaint, advised - member of public who chose not to leave contact details, stated he believes knows who made complaint, has neighbour he has ongoing difficulties with. 160 The findings and conclusions reached concerning the allegations can be briefly summarised as follows: (sections considered relevant underlined) Allegation 1. (being absent from work) Length of time of lunch - acknowledgements made by employees noted. The various times given by those present noted, possible may have been there before 2.30 pm, statements provided indicate 2.30 pm., "so it is difficult to substantiate that they had been there for more than 1 hour". ( emphasis added) Employees claimed excess time spent planning job - Manager reported no paperwork on table. If planning had clearly packed up and were back sitting in yard. Did not mention planning work to Manager. " on balance we think it is not likely they were doing any planning of work. Even if they were planning the next job, the planning required would take at most a couple of minutes work to review what needs to be inspected, as it was only a bushfire run chipping and plating hydrants." (emphasis added) Degree of excess time not clear, around 30 minutes when found by Manager, unclear if it would have continued had they not attended the site. Saving time - lunch at house compared to Heathcote Depot - "this was investigated and the (sic) Darren's house is twice as far from the pipeline job than Heathcote Depot." (emphasis added) Vehicle movements earlier in day via Darren's house - stated as necessary to get rope and leave vehicle so street at pipeline job not blocked. Investigated. Over 500m. of rope in store, there on 16th, storeman present, none of employees asked him for rope. Not accepted practice to use own materials. " The job also does not appear to need rope. The employees stated that the rope was to slide plywood sheets down a steep path rather than carry them. It appears that the path is too narrow for plywood sheets to fit when laid horizontally." (emphasis added) Statements about rope and blocking access did not make sense, if not truthful, not sure why. Only explanation investigating committee can conclude, an excuse to justify being at house. " However none of the employees use this as an explanation during the meetings on 23 October. As a result we have not relied on this issue in reaching our conclusions." (emphasis added) Allegation 2: (consuming alcohol) " In relation to all four employees, significant parts of this case come down to the word of the Acting Area Manager and the Field Supervisor against the word of the four employees. It is important to note that there is no apparent reason why they would lie about their observations. Given that both the Manager and Field Supervisor verify each other's version of events, it is unlikely that they are mistaken about what occurred. Conversely, the four employees might maintain that they were not drinking in order to protect their jobs." (emphasis added) 161 The particular matters relied on in relation to each employee can be summarised as follows: Wotton - Manager and Field Supervisor heard him say "we have only had a couple". This also indicates more than one person was drinking. Manager smelling beer also indicates he was drinking. Proximity to Manager whilst denied, confirmed by Manager and Field Supervisor. "Weighing up the different versions of events, it is more likely than not that Darren was drinking beer." (emphasis added) Francis - observed holding bottle under shirt, acknowledged they did not see bottle, "stands out as odd" he said he didn't think to show bottle when asked if drinking beer. Manager's testimony of smelling beer also indicates he was drinking, Field Supervisor confirmed he passed close by Manager. "Overall, it is more likely than not that Vaughan was drinking beer." (emphasis added) Mansfield - discrepancy in number of bottles near him, he says two next to him, one not open, one open, small amount out of it. Manager says one bottle between his legs in his crutch, both Manager and Field Supervisor later see one bottle next to chair. When Manager asked why employees drinking he did not deny it. " This does not seem like a normal response, especially when Ross stated that he understood the seriousness of the allegation. Overall, it is more likely than not that Ross was drinking beer." (emphasis added) Meredith - not observed with a bottle near him or in his hands, Manager not able to smell alcohol even though he had discussion with him. "On balance there is insufficient evidence to indicate Jason was drinking." (emphasis added)

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Supporting statements (C. Sharpe, G. Stephenson, J. Wotton and neighbours) must be considered. Wotton believes complaint made by vindictive neighbour. "We do not have access to this person as they did not leave contact details and do not know her motivations. Her separate statements to Christine and Gordon were considered in that context, but they are in line with the observations made by the Manager and Field supervisor when they arrived at the site." Statements from Darren's wife and neighbours relevant but considered in context of their relationship to him. Jehan's doesn't clarify if employees drinking. Unable to contact D. Wotton (Darren says surname coincidence) statement not given much weight due to her location. Allegation 3 : (intention to drive after consuming alcohol) All four employees stated they were intending to return to work around 3:30 p.m. just as Manager and Field Supervisor arrived. We have found Wotton, Francis, Mansfield were consuming alcohol, given statements about returning to work, "the only conclusion available is that they were intending to drive after consuming alcohol". (Emphasis added) Allegation by Ross and Jason they were directed to move vehicles off property, why told this if drinking. When questioned different ideas about who gave direction. Manager and Field Supervisor state didn't give direction employees moved vehicles of own accord. "Overall we believe employees weren't directed to move the vehicles." (emphasis added) Allegation 4 : (failure to follow safety regulations) This allegation was found to be substantiated based on the finding that three of the men were drinking alcohol and they were all aware of the drug and alcohol policy concerning driving vehicles/operating machinery. Allegation 5: ( failure to meet Field Supervisor/Team Leader obligations) Allegation substantiated based on acknowledgements made by relevant employees. 162 On the 30 October Mr Pavlovic rang each of the four men to advise them of the requirement to attend a further meeting with Sydney Water at Potts Hill on 1 November. 163 On the 31 October Mr Petterson rang each of the four men and advised them as follows: "I am calling to let you know that the disciplinary investigation is complete and I need to make a final determination with respect to the disciplinary outcome. You know that we are considering consequences that could include the termination of your employment, I need to know if there are any mitigating circumstances you would like to tell me about before I make a final determination."

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164 Mr Petterson made handwritten file notes of the responses of each of the men under the above typed script which was headed "Telephone conversation record" (Exhibit 43 - RP5, RP6, RP7, RP8) with the time and date of each noted. The main responses noted were as follows: Vaughan Francis - "Just a misunderstanding, all they had to do was ask a couple of questions and it would have been resolved....................". Ross Mansfield - "Consider my work performance in the last 12 months. Put a lot of effort in I really need this job badly........ I've never done anything like this before........." Darren Wotton - No mate, everything was said in the meeting....." Jason Meredith - I take work serious and I like working for the place in the last 18 yrs." 165 All four men maintained that they each said more than this during the conversation. They each said that they denied (expressed in varying ways) drinking alcohol and mentioned having families and mortgages etc. 166 On the 31 October 2007, the Disciplinary Hearing Report was signed off as approved by Richard Petterson, Ray Ferrier, IR Manager and Michael Keelan, General Manager. 167 On the 1 November Mr Petterson and Mr Pavlovic held short meetings with each of the four men. Mr Campise was in attendance at each meeting. The letters of termination and in Mr Meredith's case the letter of demotion were given to the men along with the relevant typed transcript of the Disciplinary Interview. They were also provided with the details of the Sydney Water Chaplain. 168 Following the termination of her husband on 1 November Mrs Donna Mansfield wrote to Mr Petterson (Exhibit 30) explaining the circumstances of how Mr Mansfield came to be working with Vaughan Francis and Darren Wotton on the 16 October, his work background and some family circumstances. She also maintained that he did not drink any alcohol that day. Mrs Mansfield also maintained that Mr Francis had an argument with her husband on the morning of the 16th at the Miranda Depot. The letter was also copied to Mr McNally. The letter also referred to a telephone call Mrs Mansfield had had with Mr Petterson on the 1 November about following his termination. 169 Mr Mansfield was unaware that his wife had written the letter or spoken to Mr Petterson. He did not know about the letter until some time later. He maintained there was no argument with Mr Francis and that he did not tell that. Mr Francis also denied there was an argument and there was evidence from any other witness about any such argument. 170 Mr Campise requested a subsequent meeting with Sydney Water management to view the evidence upon which they had relied in making the decision to terminate/demote the men. He met with Mr Ray Ferrier and Mr Hutchinson on the 2 November 2008 and was provided with copies of the records of interview as provided to the four men the day before. No other documentation was made available to him. The Evidence

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178 All four men were extensively cross-examined about the issue of drinking alcohol. They all consistently maintained they each did not drink any beer nor saw any other of the men drinking beer. The only person who had a beer was Mrs Wotton. 179 Recollections about who was drinking what, varied. · Mr Francis maintained he would have noticed if anyone was drinking beer, he was certain of that because they wouldn't drink alcohol whilst on duty. However he didn't notice what anyone else was drinking (apart from Mrs Wotton). He initially got himself a glass of water out of a plastic, two litre bottle of water (with slices of lemon in it) out of the fridge when he went in the house to chop up the onions. He then got a Bundaberg Ginger beer out of Mr Wotton's laundry fridge. · Mr Meredith saw Darren Wotton with a schooner glass of water when he came out of the house with the barbecue utensils. He later saw the glass on the edge of the barbeque. He saw Vaughan Francis come out of the house with a bowl of chopped onion which he passed to Mr Wotton, when he sat down he placed a ginger beer on the ground by his left foot. He later placed it under his singlet to keep it out of the sun. He did not remember what Mr Mansfield had to drink. Mr Meredith went and got a bottle of Solo out of his vehicle. · Mr Wotton did not mention anything about a glass of water in his witness statement but confirmed he had a schooner glass of water in cross examination. He could not recall what happened to the schooner glass after he had finished drinking the water. He deposed that Mr Francis went outside with the bowl of onions and a Bundaberg Ginger Beer. He could not recall what Mr Meredith drank. · Mr Mansfield deposed that Mr Francis had a Bundaberg Ginger Beer (he could clearly see the label) on the concrete next to his left foot. He did not recollect Mr Wotton getting himself a drink but did see him initially with a small container of water which he used to clean the barbecue. He could not recollect seeing either Mr Wotton having a drink of anything nor Mr Meredith. He himself did not have anything to drink at all. The Parramatta rope.

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Mr Mansfield maintained in cross-examination that he was instructed to go to the store to ask for "Parramatta rope". It was not an expression that he had either heard or used before that day. 183 Mr Wotton also indicated in cross examination that another reason for going to his house first had been to collect the large container in which he kept his books, folders and work cards. He wasn't prepared to put that container in the ute (he had travelled to work that morning in a Sydney Water First Response utility). This was not included in his witness statement and had not been mentioned to Sydney Water in the 23 October interview. 184 Mr Pavlovic maintained that in all his 35 years of experience he had never heard of Sydney Water employees having to bring equipment from home. Mr Francis maintained that he had done just this on a number of occasions citing the use of a Stanley knife and a drill. 185 There was no evidence and unfortunately no questions were asked (including by the Commission) about what happened to the actual piece of rope the men maintained they used on that day e.g. whether it was left at the jobsite, left in the pipeline truck or Darren Wotton took it home. There is no indication of any efforts that Sydney Water may have made to locate the particular piece of rope (or if such action was even considered). 186 The issue of the rope, in the context of the materials the men said they used (including plywood boards), is referred to in the Disciplinary Hearing Report under the heading "Were the Allegations Substantiated?" - Allegation 1 - being absent from work" (see above) and it was indicated "the job does not appear to need rope" with the reason given being the narrowness of the path to lay such boards. However there is no indication of who made this assessment and in what form it was reported (it is assumed to be Mr Stephenson as he was the one who subsequently inspected the jobsite and took photos). The Report mentions that reports from the Work Plan Coordinator ( Mr Stephenson) were considered but that is a reference to his emails about the complaint. There is no mention anywhere else of any relevant interview, discussion or record of any consideration of this issue by the investigating team. 187 The issue of the actual work completed on the 16 October was traversed in only a minor way in cross examination of the four men. The first verbal exchange between Mr McNally and Mr Wotton

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188 Set out below are the various accounts of the initial exchange between Mr McNally and Mr Wotton just after 3.30 p.m. on the 16 October, taken from the relevant witness statements: Darren Wotton Christian: "what the fuck's going on here!?" Darren: "we're having some lunch" Christian: "how many beers have you had?" Darren: "my wife is having a beer!" Christian: "righto, Jason, I'll see you around the side!" Vaughan Francis Christian: "what the fuck's going on here!?" Darren: "we're having some lunch" Christian: "how many beers have you had?" Darren: "my wife is having a beer!" Christian: "righto, Jason, I'll see you around the side!" Ross Mansfield Christian: "what the fuck's going on here!?" Darren: "we're having some lunch" Christian: "how many beers have you had?" Darren: "my wife is having a beer!" Christian: "righto, Jason, I'll see you around the other side!" Jason Meredith Christian: "what the fuck's going on here!?" Darren: "we're having some lunch" Christian: "how many beers have you had?" Darren: "my wife is having a beer!" Christian: "righto, Jason, I'll see you around the side!" Janelle Wotton Christian: "what the fuck's going on here!?" Darren: "we're just having some lunch mate" Christian: "how many beers have you had?" Darren: "my wife is having a beer!" Christian: "righto, Jason, I'll see you around the side!" Christian McNally I said: "What's going on?" Mr Wotton said: "Well we're having some lunch" I then pointed to the bottle that was in Mr Wotton's hand and said: "You're having some lunch and a few beers too are ya?" Mr Wotton said: "Oh, we've only had a couple." Mr Wotton then held up the bottle in his hand and shook it a little. I said: "What do you mean you've had a couple? You're not even supposed to be here let alone drinking." Mr Wotton said: "Can't we have lunch at my place?" I said: "Mate, you know you can't have lunch at your place. As far as I know, you're supposed to be doing a pipeline inspection." I then looked back...... towards Mr Meredith......and said words to him to the following effect: " Mate, can you come here for a tick, I want to have a talk to you. Steve Coles Mr McNally said: "What's going on here? What are you guys doing?" Mr Wotton said: "Oh we're just having some lunch." Mr McNally said: "What's with the beers? You've got a beer in your hand there, how many beers have you had?" Mr Wotton held the bottle up in his hand and said: "Oh you know, just a couple. Mr McNally said: "Well I don't know, how many is a couple?" Mr Francis then mumbled: "One." Mr McNally said: "Well we don't know how many beers you've had. You've been drinking beer, you can't drive your trucks. You know this is no good, this is bad news. Jason we need to have a talk." 189 The four men (and Mrs Wotton) maintained that the only person who said anything was Mr Wotton who replied to Mr McNally because Mr McNally was looking at him when he spoke. Mr Francis denied saying anything at all and said he wasn't even aware that Mr Coles was standing behind him. He did not turn around and merely looked to his left and saw Mr McNally. They all generally indicated that things happened very quickly and they were in a state of shock.

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193 The three different account of this conversation are as follows: Jason Meredith Christian: "what are you doing here?" Jason: "we're just having some lunch" Christian: "how long have you being (sic) here?" Jason: "we finished the job at about quarter past two" Christian: "Mate, we received a complaint that you all had been here since midday and that you've been drinking and carrying on screaming" Jason: "Well, that's bullshit!" Christian: "Mate, there are vehicles everywhere and you're all in his backyard, it looks pretty bad" Jason: "Mate, nothing's happened, we're just having some lunch" Christian: "Well, I suggest you go back in there and I'll go and make a few calls and see whether we'll take this any further" Christian McNally I said: "Mate, what's going on, how long have you been here for?" Mr Meredith said: "Oh since about 1.30, 2.00pm." I looked at my watch and said: "It's fucking twenty to four and you're still sitting here!" Mr Meredith said: "Yeah I know, we did a job down the pipeline and you know it's a hot day." I said: "That's beside the point, a member of the public has rung up and complained that Sydney Water workers have been drinking and carrying on at this address since lunchtime, saying things like 'hey do you want another beer'. And you're sitting there with those guys who are all drinking piss." Mr Meredith said: "Yeah, I know I know I know. I'm just as bad." I said: "Mate it's bad all right, have you had a beer?" Mr Meredith said: "Nup." Steve Coles Mr McNally said: "What the hell's going on here? You're the acting supervisor and you're sitting here while they're drinking beers and while you're all supposed to be working. What have you got to say for yourself?" Mr Meredith said: "You know I suppose I'm as bad as them, I'm in the same box as them." Mr McNally said: "Righto" 194 Mr McNally also said that he was standing very close to Mr Meredith but could not smell any trace of alcohol on his breath. 195 Mr McNally acknowledged that he did not put anything in his subsequent diary notes about Mr Meredith confirming that the men were having a beer and did not record that serious admission in his diary. He said "he agreed with what I'd said. He didn't actually say they were drinking beer." Mr McNally also agreed that he did not record any admission by Mr Meredith in the statement he typed up on 23 October (Exhibit 37) nor did he specifically mention that in the interview of 25 October. 196 Mr Coles also did not make any note in his diary about any admission by Mr Meredith nor in his subsequent statement (Exhibit 47). What he did note in relation to not being able to smell beer on the employees was (at point 6)....."I spoke to Jason Meredith about what they were doing there but I could not smell beer on him. There was no detail given as to what Mr Meredith responded. Mr Coles also acknowledged that he did not record that admission but maintained that Mr Meredith did say the words as he had set out in his witness statement (as outlined above.) 197 It was the evidence of the three men remaining in the backyard (Wotton, Francis and Mansfield), as well as Mrs Wotton, that they could not hear the verbal exchange between Mr Meredith and Mr McNally. It was the evidence of all four persons that this conversation took place out of their sight around the side of the house. Mr Meredith also supported this saying that he accompanied Mr McNally and Mr Coles around to the side of the house (between the pipeline truck and Vaughan Francis' utility) where the conversation took place. 198 Mr McNally however maintained that he had the men in the backyard in his sight at all times. Mr Coles also maintained that they could see the area where the men were sitting. It was their evidence that neither of them observed anyone getting up and moving around. It was also their evidence that they did not hear any conversations of the men who remained in the back yard.

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200 It was the evidence of Mrs Wotton that before Mr Meredith returned she started clearing up the various scattered beer bottles, because "it was not a good look", going into the house to get a plastic shopping bag for this purpose. · Mr Francis' evidence was that he got up and assisted Mrs Wotton but just in relation to picking up the few empty bottles that were around him and putting them in the plastic shopping bag that Mrs Wotton had. He also put his ginger beer bottle in the bag. However he could not recall whether she continued to collect beer bottles. · Mr Wotton did not see his wife go into the house but did see her with a plastic bag collecting bottles with Mr Francis helping. · Mr Mansfield however denied that anyone collected up beer bottles or that some of the bottles were gone when the Managers returned. · Mr Meredith said that he could recall that when he returned Mr Wotton and Mr Mansfield were still sitting down but he was "pretty sure Vaughan was up". He also noticed that the beer bottles along the edge of the table and in the garden had been cleaned up however he did not see that happening. 201 There was no reference made in the disciplinary interview by any of the four men to any actions taken to collect up any of the scattered beer bottles. There were no questions asked of the men about that issue. 202 They all generally estimated it was about five minutes before Mr Meredith returned to the backyard. There was only a short conversation that each of the four men could recall, with essentially the three men in the backyard maintaining (in identical words) that Mr Francis asked "what was going on", Mr Meredith telling them that "their (sic) out the front deciding what to do with us." Mr Francis asked "what do you mean?" Mr Meredith responded with "they obviously think we were drinking". Mr Meredith confirmed that he just told them they were out the front making a decision. He made no mention in his witness statement of telling them what the Managers thought nor was that clarified further in cross examination. 203 None of the four men could recall the specifics of any conversation in the period they were waiting in the backyard before Mr McNally and Mr Coles returned. 204 All four men acknowledged that at no time, either whilst Mr McNally and Mr Coles were in the backyard, or after Mr Meredith came back and told them they were out the front making a decision, or whilst the two men were out the front of the property, did any of the four men speak up and specifically deny they were drinking alcohol or go out the front to attempt to speak to Mr McNally. 205 Mr Francis also acknowledged that he was a Union delegate and used to speaking up on behalf of his members and that if he needed to address a situation he did and that he did not speak up and say anything to Mr McNally. He said that Darren Wotton answered the question and that no question was put to him and as they had an Acting Field Supervisor with them he thought he was going to say something. 206 Mr Meredith agreed that at no point in his exchange with Mr McNally around in the driveway did he say that they had not been drinking alcohol. Nor did he say he was drinking soft drink. He said - "You can't tell Christian anything, Christian has got a one track mind. He's not the type of person that - he talks to you, you know what I mean, I don't talk to him unless he talks to me, He's that type of person. Just his personality, I don't know." 207 Mr Meredith also acknowledged that after they had all been told by Mr McNally that everyone was stood down, no one said to Mr McNally or Mr Coles that they were not drinking. Mr Meredith was asked why he didn't take that opportunity to say "you got it all wrong", knowing how important it was. Mr Meredith responded "no, he's the type of person that's just got a one track mind. 208 Mr Meredith sought to clarify what he meant by "Christian is the type of person that he talks to you - can I answer him?" and the following exchange with the Commission took place: Q. Keep on going. A. Yes, he's just that type of person that when he talks, you talk to him, it you know what I mean. That's just what Christian is like. You will only talk to him if he talks to you, it yes, Q. So you mean you just listen when he talks? A. Yes. Q. You don't talk back, is that what you mean? A. No. He's that type of person. 209 Mr Francis also agreed he did not show Mr McNally that the bottle under his singlet was soft drink or say that he was only drinking ginger beer. He said he wished "in hindsight" that he had done that, he was in a state of shock and Mr McNally never asked to see the bottle. He denied that he put the bottle under his shirt so that it would not be seen by the Managers. 210 Mr Francis also denied that there was an opportunity to speak when Mr McNally later returned from the front of the property. " The phone call had been made by then. Once that ball's in motion, there's no stopping it. Once he's come back and told us we're stood down pending investigation, whatever I wanted to say at that stage would have been neither here nor there." Mr Francis maintained that Mr McNally didn't have the power to make that decision so obviously he had rung someone higher. He had formed the opinion by then that it wouldn't have mattered what he said they had already made a decision between them. It would have been "wasting his time" by that stage. 211 Mr Mansfield maintained that when Mr Meredith had returned and told them the Managers were out the front making a decision, they asked Mr Meredith if he told them they weren't drinking and he said he told them they were not drinking. Mr Francis couldn't recall having that sort of conversation with Mr Meredith. Mr Wotton said he didn't ask that question and didn't know what Mr Meredith told the Managers. Mrs Wotton didn't recall what was said. Mr Meredith said he only told them they were out the front making a decision. He couldn't recall any other conversation. 212 Mr Mansfield said that "they weren't given the opportunity to respond" Everyone was shocked by what had happened. He went on to say that it wasn't a period of time where they could talk to them. "They weren't approachable" and "Christian McNally is not the type of person you would talk to. He made his decision". He later said in response to questioning from the Commission that he had had very little to do with him but "always got the impression that he was in control and you did exactly what you were told to do". 213 However Mr Mansfield also conceded that he had had very little to do with Mr McNally and had only seen him when he had come out to the job in the week since he had been at the Miranda Depot. He had only had a couple of short conversations with him. He denied that the views he had formed were based on what others had told him. It was an opinion he formed himself based on the very little he had to do with him. 214 Neither Mr McNally nor Mr Coles made any mention of bottles being cleared away in their written statements provided to the investigating team however in their interview of 25 October, Mr McNally, in responding to a question from Mr Pavlovic as to whether he saw any food or paperwork on the table responded, "No.... only the bottle Darren had and when we came back everything was cleaned up". 215 In evidence both men denied seeing or recalling bottles scattered in various locations when they came up the driveway and into the backyard. The only bottles observed were those specifically mentioned as being the bottle on the table next to Mr Wotton, the bottle under Mr Francis' shirt and the bottle on Mr Mansfield's chair. Mr Coles deposed that he "noticed Mr Meredith was holding a plastic bottle of soft drink with a yellow or orange label; it may have been a Lift or Fanta." 216 Mr Coles had also deposed that he "did not focus his attention on Mr Mansfield or see what, if anything, he was drinking." This was in contrast to what he had said in his statement of 23 October (see above). In cross examination Mr Coles indicated that he didn't observe Mr Mansfield holding a beer, he didn't see it. When asked whether whoever had put in his statement of 23 October "my view of him was blocked" was mistaken, he said "could have been, yes." He did not focus his attention on Mr Mansfield and agreed he did not see him with a bottle at all. 217 Both men said that when they came back into the backyard after calling Mr Nisbet there were no bottles in sight. 218 In his witness statement Mr McNally deposed that when he first saw Mr Wotton he had his hand around the VB stubby bottle that was on the table (he also said it was in a stubby holder). He also deposed that during their verbal exchange Mr Wotton held up the bottle and shook it (see above account of exchange). He denied in cross examination that he had "embellished" his account in relation to Mr Wotton holding up the beer and shaking it. Mr Coles also deposed that Mr Wotton was holding a brown bottle in a stubby holder in his right hand whilst sitting at the table and that he held the bottle up during the verbal exchange with Mr McNally. He also denied that he had exaggerated his account over time. Neither Mr McNally nor Mr Coles had made any mention of stubby holders in either their diary notes or subsequent statements. The first mention of there being stubby holders was by Mr McNally in the notes of the interview with the two men on 25 October - "Darren had an open beer on the table next to him in a black wet suit holder". 219 Mr McNally and Mr Coles both maintained in cross examination that Darren Wotton's beer was in a stubby holder. 220 Mr McNally understood Mr Wotton to be making an admission on behalf of himself and Mr Francis and Mr Mansfield. He did not, at that stage, ask Mr Meredith if he was drinking.

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Mr Coles' version 231 Mr Coles' evidence also confirmed the evidence of the men that that he and Mr McNally, after speaking to Mr Meredith, walked out to the front of the house to ring Mr Nisbet and did not return until Mr McNally had spoken to Mr Nisbet. 232 Mr Coles essentially deposed that there was one conversation about moving the trucks after the call to Mr Nisbet. Once they had spoken to Mr Meredith, he returned to the table and then Mr Coles and Mr McNally walked further down the driveway to a point where they could no longer see the area where the four men were sitting. They then had a conversation as follows: I said: "This is crap, I can't believe that Vaughan is here. We know these blokes, it could have been anyone else but why these blokes?" Mr McNally said: "We're going to have had to do something about it, otherwise you know if it's not them, it will be us." I said: "Yep, we'll have to. We've got to make the phone call. A customer complaint's been made and we need to follow it up." Mr McNally said: "Righto, let's ring Ian, we'll let him know what's going on." 233 In cross examination Mr Coles said he understood Mr McNally to be saying: "What he was saying was that we both knew that a complaint had been made, many people knew about it, we had to the right thing, otherwise if we did the wrong thing and let it go, it would have got back to our bosses, my boss and I would be justifying my job. That's what that conversation was about." Mr Coles understood that at that point the complaint had been confirmed by what they saw. He agreed the only person he saw with a beer was Mr Wotton. 234 Mr Coles deposed that Mr McNally then spoke on the phone to Ian Nisbet, he then called Mr Stephenson and requested some drivers be sent to pick up the trucks and take them back to the Miranda Depot. After approximately 15 minutes they then returned to the backyard and Mr McNally had a conversation with Mr Wotton and the others about moving the trucks as follows: Mr McNally said: "We've made the phone call and the decision's been made that you're stood down on full pay pending an enquiry, you'll be notified within 24 hours of what will be happening with that enquiry and the situation." Mr Wotton said: "What are you doing here? Why are you here?" Mr McNally said: "Well we received a customer complaint about noise and drinking and the customer was thinking that you were going to get back into your trucks and drive off to work." Mr Wotton said: "Oh that's bullshit, what are you talking about that's rubbish. Someone else has done this, someone else has done this." Mr McNally said: "Righto, well we need to get the keys for the trucks and we need to get your personal belongings out of the trucks. We also need that Commodore moved so that we can get the trucks moved out on to the Street. Vaughan you look pissed off." 235 Mr Coles deposed that Mr Francis did not respond. He and Mr McNally then started walking back towards the front of the property. Mr Coles deposed that it was "not a pleasant place to be", and Mr McNally deposed that he did not want to "unnecessarily provoke any more of a confrontation." A loud conversation then took place: Mr Wotton said: "We can't even drive the trucks, I want them off my fucking property!" Mr McNally said: "Fair enough. We all get them off your property. Get your personal belongings out, move the Commodore, we'll move the trucks out." Mr Francis said: "Listen, shut up Darren." 236 Mr Coles deposed that they walked to the front of the property and started talking and suddenly noticed the trucks being started up, reversed out of the driveway and parked on Caldarra Avenue. 237 Mr Coles said he did not recall hearing Mr McNally saying "they've obviously had more than one". He saw Mr Wotton remove his belongings from his vehicle and walk towards the house but did not see him enter the house. In response to questions from the Commission he said that he did not notice "anything untoward" when Mr Wotton was moving around at this stage.

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They all deposed as to "Christian and Steve then whispered amongst themselves for a moment". They all then recounted:- Christian: " Well, get your personal belongings out of them and put them out on the road for me". Vaughan: "righto." Christian: "Vaughan you look pissed off" Vaughan: No reply. 240 Mr Wotton denied bumping into Mr McNally. The other three men also said this did not happen. Mr Wotton also said he did not go into the house at any stage. Mr Francis saw him place his yellow box on the table. Mr Francis also said that he remained seated and did not move to his vehicle to get his gear at this time. 241 Mrs Wotton moved the Commodore. In evidence, Mr Wotton said that after he got his box out of the break truck, he jumped in the pipeline truck and drove it straight ahead and down the driveway leading to the battleaxe block turning around at the bottom and then drove back up and down his driveway and parked it out on the road. Mr Francis confirmed that Mr Wotton moved the pipeline truck in this manner. Mr Mansfield said Mr Wotton threw him the keys to the break truck and after getting out his bag he reversed it down the driveway and parked it out on the road. Both Mr Meredith and Mr Francis said they reversed their vehicles down the driveway and out onto the road. Mr Francis did not get his gear out of the vehicle until he had parked it on the road, he left the keys in the vehicle. 242 Mr McNally denied that he asked the men to put the trucks out on the road. He acknowledged that if he had, it would be inconsistent with a finding that they had been drinking but rejected the suggestion that his denial of asking them to do this was done to cover himself. He didn't try to stop them moving the vehicles because - "it wasn't my responsibility to physically restrain them from driving the vehicles out. That was their choice to drive the vehicles out. "I'd instructed them not to -- that I wanted the keys and there was people on the way to pick the vehicles up and all I wanted was the Commodore moved, which was parked behind the pipeline truck." He went on to say that he wouldn't have asked them to move the vehicles out when he had already said to them before they couldn't drive their vehicles and when he had people already on the way to pick them up. 243 Mr McNally and Mr Coles also deposed as to a short conversation that took place with Mr Meredith after he parked one of the vehicles on the road where Mr McNally asked him for his keys and Mr Meredith queried whether he was being stood down too. Mr McNally deposed he told him: "Of course you are, you're just as bad as them if not worse because you just sat there and watched them do it." 244 Mr Coles deposed Mr McNally said: "Yeah mate, there are four of you, you're all here, there will be an investigation and whatever comes out of it, comes out of it." 245 Mr Meredith said Mr McNally only asked him for his keys which he gave him. He already knew that he was stood down so he didn't ask this of Mr McNally. 246 Mr McNally acknowledged that he did not include in his diary notes any reference to smelling alcohol nor to Mr Wotton bumping him twice. 247 The four men all generally said that they came together on Mr Wotton's front lawn, Mr Francis rang Mr Campise on his mobile phone and during the course of this conversation walked back up the driveway with the other three men and they all went into the backyard. Job Cards

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248 Mr McNally had annexed to his witness statement a photocopy of a Job Card (Exhibit 35 - CM2) which he deposed he had found on the 17 October inside a folder in the vehicle used by Mr Francis. Mr McLachlan had asked him to locate the particular Job Card for the previous day's work on the scour valve. Mr McNally saw that it had not been signed in the designated place. However Warren Woods (a Sydney Water Field Supervisor) saw him with the Job Card and told him that he had filled it out the previous afternoon after Vaughan Francis had rung him up, after everything had happened, and asked him to fill out a Job Card for him. 249 CM2 was a "Programmed Job Card" for Job# 11336470 which was described in bold type as " Section Valve Annual Maintenance On Woronora Pipeline Meet At Sv2a on Monday 10/9/07". It had hand written information completed such as V. Francis being listed as the Team Leader, but no listing of any crew names, 16/10/07 was given as the date, with 11.00 as "time travel to site", 12.00 as "time arrived" and 14.00 as "time finished". Various other information had also been completed (certain boxes had been filled with a cross and certain numbers circled). 250 Mr Francis denied that he asked Mr Woods to fill out the card. He agreed he had rung him up and asked him to look in the ute and find the Job Card for him and make sure "it is correctly filled out for me". He subsequently discovered that he still had the completed Job Card for the 16 October (Exhibit 7) amongst his papers. There was no issue that Exhibit 7 was not the correct Job Card for the work performed on the 16 October which was described as "Make Safe Chamber - Covers Have Been Removed". 251 Mr Francis was taken through CM2 in some detail and denied that any of the detail and information entered had been made by him, it was not his writing and he did not know how the information came to be so recorded. He didn't tell Mr Woods to fill out the job card for him and had no explanation for how the correct times were entered. 252 There was no evidence from Mr Woods. There was no mention in any of the subsequent Sydney Water documentation generated during the investigative process (Fact Finding Report, Disciplinary Hearing Report, interview minutes) of any issue about the Job Card. The issue was not raised in any other of the witness statements filed on behalf of the respondent. Should Sydney Water have known or ascertained that 56 Caldarra Avenue was Mr Wotton's address/Was Mr McNally aware of this?

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254 There was evidence from Mr Meredith, confirmed by Mr Stephenson, as to data and information available to Sydney Water via its computer systems (and in particular the Hydra system) which enabled, via a variety of means such as either the typing a particular address or a UBD reference to bring up a screen setting out a map of selected streets showing Sydney Water assets (hydrants etc) and which would also display a blue icon in the shape of a small man at an address that was of a Sydney Water employee. 255 Mr Stephenson also indicated that it was possible to do a property owner search, a search for jobs, a search for vehicles and a search for an asset, be it water or wastewater depending on the style of job. A general search would pop-up the blue icon. He was not aware of whether if he had done a property owner search to see if it was Mr Wotton's house but acknowledged that it would have shown that if Mr Wotton was the owner of the property. 256 In addition there was also tendered a laminated copy of the "Southern Suburbs Production Workforce" consisting of three columns headed by the name of the relevant Field Supervisor (including their mobile telephone number) and listing the surname, employee number, address and phone contact of the employees based at the Miranda Depot (Exhibit 18). Mr Stephenson was one of the Field Supervisors so listed. (He had subsequently moved into Grant Mason's position of Work Plan Coordinator) On the reverse side was listed a variety of contact phone numbers for the Southern Suburbs (including the Team Manager Boris Sinikoski, Grant Mason and other supervisory positions) and various phone numbers listed for the Miranda, Heathcote and Penshurst Depots. All Field Supervisors had a copy of this document. 257 Mr Stephenson initially indicated that the laminated document was two separate documents which did not exist as such at the Depot. However he acknowledged that he had seen such a laminated copy of those two documents and that the document would have been available to him on the 16 October. 258 Mr Stephenson also acknowledged that he was aware of just who had the pipeline truck that day and knew that it was Mr Wotton when they gave the work to the men in the morning. However he did not make any connection between the pipeline truck and the property. He knew that he didn't have anyone working at the property as the computer screen in front of him did not have a specific Sydney Water job listed at that address.

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260 When Mr McNally had first arrived at the address, he deposed that he had rung Mr Stephenson and told him he had arrived and that the pipeline truck was there. He also deposed as to a subsequent phone conversation ( at 15.46 p.m.) where he said to Mr Stephenson "Mate do you know whose property this is?" and Mr Stephenson said "don't have a clue". 261 By the time of that phone call at 15.46 Mr Stephenson had not entered the address into the computer of system to find out who owned the property nor had he done a general search to find out any other information about the address as he didn't deem it necessary. 262 Mr McNally acknowledged that Mr Stephenson could have ascertained that the address was Mr Wotton's house if he went through Hydra but that was not the normal process to find out where staff addresses were. Mr McNally said he relied on staff listings rather than use the Hydra system. the Hydra system was basically used to track repeat problems at customers' addresses and so forth. 263 The staff listing Mr McNally referred to was a cost period report which also contained other financial information. He maintained that if he entered 56 Caldarra Avenue, Engadine using that system it would not have shown that it was Mr Wotton's address at that time. At that time he maintained Mr Wotton's address was shown as somewhere at Maianbar. 264 He was aware of this because when he had first gone to the Miranda Depot he had had a look. He had known Darren from past history and he used to live down the coast. He knew he had a property down at Wollongong because they'd spoken about that in the past. He didn't know whether he still lived there but when he looked at the address he knew Mr Wotton's parents lived at Maianbar and that was on the cost period sheet. He had checked this after the first couple of days he'd been at the Depot. He had not specifically gone looking at Mr Wotton's address. He was viewing it overall for staff listings as far as trying to get guys starting and finishing in the field. He noticed Darren was at Maianbar because they'd spoken about that before and he remembered looking at that and saying Darren was at Maianbar. 265 Mr McNally maintained that he didn't know the address was Darren Wotton's house before left the Depot that day. It was the last thing he expected. He could not recall saying anything to Mr Hutchinson or Mr Pavlovic as to why Darren Wotton's address was shown as Maianbar instead of Engadine but did recall speaking to the administration people who update the cost period report and asked them to update it. When a cost period report was done for October the address was then updated. 266 Mr McNally acknowledged that on Exhibit 18 Mr Wotton's address was shown as 56 Caldarra Avenue Engadine, but said this would have been a template made up by the Field Supervisors for their own staff at the Depot. It was not something that the Area Manager would generally use. He was not aware that just about everyone in the Miranda Depot had a copy of that list on their desk. 267 Mr McNally denied that Mr Wotton's address as shown in the cost period report of October 2007 was Engadine not Maianbar. He had checked the cost period records recently on the Saturday prior to his giving evidence (29 March) as he wanted to check whether they had been updated and found that they hadn't been. The date of the cost period report, from what he could see, was 15 October so therefore the Maianbar address would have been shown. From his checking the report was not modified until November 2007. He acknowledged that that would have been after Mr Wotton's termination. He denied that he had not looked at the particular cost period report in October 2007 and had only looked at it the previous Saturday. 268 He agreed that Mr Stephenson would have had access to the cost period report but generally it was the Manager who normally updated the report once a month through the admin people. He also agreed Mr Stephenson would have had access to the Hydra system because he used that in the course of his work and the Hydra system would have had Mr Wotton's address recorded as being Engadine if he was the owner of the property. However Mr McNally said that he would not look at the Hydra system to see where his employees worked. He did not check the Hydra system on Saturday 29 March. He checked the cost period report in preparation for giving evidence as he was asked a question by the Solicitors about the issue of the Maxima Hydra system. Close friendship between Francis and Coles

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274 Mr Francis deposed as to an incident that occurred on 30 September 2007 concerning a sewer crew en route to a routine job outside of the Southern Districts Production Area. He spoke to a member of that crew advised him that because of a range of OHS issues the subject of discussions with between the Shift Monitoring Committee ("SMC") and Sydney Water, that work should not be performed across boundaries. The crew returned to the Depot. Mr Francis indicated that this issue was the subject of Commission proceedings, with it being an ongoing directive of the SMC to all field employees that there be no crossing of Production Area boundaries into unfamiliar territory. He was subsequently contacted by that employee who told him he had been called to Mr McNally's office and verbally warned of the consequences of not following instructions regarding crossing boundaries. 275 Mr Francis deposed that he had a subsequent conversation with Mr McNally on 5 October 2007 about the issue of him instructing the sewer crew not to cross the boundaries and during the course of the conversation he asked him whether Sydney Water recognised instructions that came from the Commission. Mr Francis deposed that he made it clear that it was nothing personal and he understood Mr McNally was following instructions from management. Mr Francis subsequently placed the SMC's Policy on Crossing Boundaries next to a Sydney Water Disciplinary Memorandum on the issue on the Miranda Depot notice boards. The next day he was asked by Mr McNally if he had put that "Union bullshit on the notice boards", he told him he did and Mr McNally said "well you're a smart arse." 276 Mr McNally denied that he had called the particular sewer crew employee into his office to speak to him, he only had a conversation with him after running into him in the office. He agreed he had a subsequent general conversation with Mr Francis about the issue but did not agree that Mr Francis had put the question to him as outlined above. He also denied that any further conversation took place with Mr Francis about the issue or that he had spoken to him the next day in the terms outlined above.

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277 For his part Mr Francis, in his statement in reply (Exhibit 4) deposed that he had contacted the particular sewer employee in February 2008 and he verified that on that particular day Mr McNally had walked past him and told him he should go upstairs to the Manager's office so he could speak to him. 278 He also reiterated that the conversations with Mr McNally that he had deposed to in his first statement had taken place. 279 In cross examination Mr Francis acknowledged that nothing about the conversation with Mr McNally suggested to him to him that he had antagonised him personally. He did not think so at the time but now he was not sure how he took it. He did not seem pleased that he, as a part of management, was being defied, but they didn't have a screaming argument. He did not agree that "Union bullshit" was an expression that Mr McNally did not use - "only if the union comes up" was his response. He maintained that Mr McNally "swears a lot". 280 Mr Wotton deposed as to two related incidents. The first took place in August 2005 after he was driving to the Depot following a Union meeting and he had an exchange with Mr Coles over the "MDT Radio" in which he called Mr Coles "a scab" and was called a "smart-arse" in reply (Mr Wotton deposed he had heard Mr Coles ask for more work after having completed a job during the Union meeting). About a month later, in September 2005, after returning to a job site after lunch, Mr Wotton was spoken to by Mr Nisbet, Mr Sinikoski and Mr McLachlan about calling Mr Coles a scab over the radio and told he just can't call people those things, it wouldn't be tolerated. Mr Wotton apologised saying it was only tongue-in-cheek. He was told not to do it again as it was against Sydney Water policy. He heard nothing further from them after that incident. 281 Mr Coles deposed that he was not anti-union. He was a member of the ASU and denied that he responded to Mr Wotton as he said, rather he deposed that he replied " Yeah that's very funny". He had never lodged a complaint about the incident. 282 Mr Wotton maintained in his statement in reply (Exhibit 15) that his version of the exchange was correct. 283 There was no cross-examination of either Mr Wotton or Mr Coles on this issue. The Investigative Process

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284 The chronology and procedures followed during the investigative process are outlined in some detail above. There was some confusion and differences in the evidence of Sydney Water's witnesses about whether or not Mr McNally and Mr Coles were interviewed separately and also when that first interview took place. What has been set out above has been pieced together based on both the relevant witness statements and the oral evidence that gradually unfolded. 285 Mr McNally had deposed that he had been first interviewed about the events of 16 October by Mr Pavlovic at the Matraville Depot. He also deposed that Mr Coles was also separately interviewed but could not recall the dates. He deposed that there was a second interview with Mr Pavlovic and Mr McLachlan on the 25 October and that Mr Coles was also present. 286 Mr McNally continued to maintain in cross examination that he had an initial interview with Mr Pavlovic and Mr McLachlan (and that Mr Hutchinson might have been present as well). The interview took place in the same week as the 16th possibly the Thursday or Friday. The meeting lasted for an hour or so and was in the form of questions and answers. He gave full answers, to the best of his knowledge, to the questions asked about what had happened on that day On the 17th he had some training at the Miranda Depot. 287 Mr Coles had deposed that he was informed on the 17 October, that he was to attend a meeting with Mr Pavlovic, Mr Hutchinson and Mr McLachlan that day. It was in preparation for that meeting that he deposed that he read and then "whited out" his diary notes as he found them to be "largely illegible and not neat". He re-wrote his notes deposing that they were not inconsistent with the earlier notes "just more legible and neater". He also deposed that Mr Pavolvic took copies of his dairy notes and asked for his account of the day. There was a further interview with Mr Pavlovic and Mr McLachlan on the 25 October. 288 Mr Coles also maintained that Mr Pavlovic was at the meeting in addition to Mr Keelan, Mr Hutchinson and Mr McLachlan but not Mr McNally and he could not recall anyone else from HR as being present (Ms Alifierakis) 289 The original diary of Mr Coles was tendered in evidence for the relevant page of 16 October (Exhibit 57). On the opposite page (17 October) there is listed at the time slot of 7.30 a.m. " - Matraville Depot" - Ian N, Bill McL, Christian, myself, Mick K, - Sophie + Robert (HR) 290 There was no mention at all in any of the relevant witness statements of Sydney Water (being those of Mr Hutchinson, Mr Pavlovic, Mr McLachlan or Mr Petterson) of any process involving Mr McNally and Mr Coles prior to some mention being made of the interview of the 25 October. Those witness statements all essentially dealt with the investigative process as it focussed on the disciplinary interviews with the four men on the 23 October. 291 There was no evidence from Mr Nisbet. 292 Mr Pavlovic deposed as to meeting with the men on the 25 October "and interviewed them again". However in cross examination he said that he had not been involved in conducting any investigation before the 22 October when he was requested to become involved by Mr Petterson. He had not been involved in any discussions with Mr Coles or Mr McNally before that date. He had spoken to Mr Hutchinson and Mr McLachlan and been given brief information as to the allegations and the course of events by Mr Petterson. He had the statements prepared by Mr McNally and Mr Coles prior to the interview with them. 293 Mr Hutchison indicated in cross examination that a meeting took place on 17 October at which he was present with Mr Nisbet, Mr McLachlan, Mr Keelan (briefly) another person from HR (since left), and Mr McNally and Mr Coles. He didn't arrange the meeting, he was asked to attend. He believed (but couldn't say for certain) that Mr Nisbet organised the meeting. Mr Hutchinson subsequently had separate phone calls with each of the two men and made brief notes as indicated above. 294 He agreed that in hindsight it would be best to interview all persons involved in a particular incident, regardless of whether they were management or the actual employees subject of the allegations, separately. 295 Mr McLachlan confirmed that the meeting took place on the 17th (although he had Mr Pavlovic as being also present). However he then indicated: "Formal investigations had not commenced. That meeting was the general manager to - he virtually briefed us to say he wanted the process to start, I don't want any delay. There was no detail as any of the facts as they may have been discovered at that point in time. It was more about to set the scene, you've got my support, get on with it. That was the content of that meeting, hence why I took no notes. It was like a state of the nation meeting." 296 He could not recall if Mr McNally and Mr Coles spoke about what had happened on the day before and indeed could not recall if they were both there. They initially asked the two men for some statements. He would have had discussions with them about the events but could not recall if he had those discussions prior to them sending their statements or if they got the statements first and said "well there's a need to now go and interview them" He could not recall the order. 297 Mr Hutchinson could not recall whether he saw the diary notes of Mr Coles which had been "whited out" and he was not aware that Mr McNally had taken mobile phone photos at 56 Caldarra Ave. However in making their statements he asked Mr McNally and Mr Coles to detail in them "as much detail as they recall". He could not remember if he specifically said to use the same words but he asked them for as much detail as they could recall. 298 Mr Hutchinson also agreed that it would be normal procedure that where handwritten notes were taken of meetings, those notes would be kept rather than shredded. 299 Mr Hutchinson also had a significant role in preparing and finalising the Disciplinary Hearing Report. He acknowledged that there had been certain matters checked out in relation to the four employees such as the rope. They were trying to figure out if the employees were trying to say that was why they had to go to Darren's house, but it didn't appear they were saying that. That was the conclusion he could remember writing in the final Report. As to the Heathcote issue they were trying to determine why they went to the house so they asked them why they didn't go to the Heathcote Depot. They did not check any peripheral matters raised by Mr Coles or Mr McNally because they didn't raise such matters. They did not check phone records to find out the times that phone calls were made on that afternoon.

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303 Mr Petterson deposed that Mr McNally and Mr Coles had "always been trusted employees of the respondent and two of our better performers. I know Mr Coles is a 'no-nonsense' type of supervisor and that both he and Mr McNally are well respected in their area of operation for being very forthright individuals with high levels of integrity." His view of them was part of his consideration in believing their version of events over the employees. He did not have a view about the employees as to whether they were also well respected in their area of operation or had high levels of integrity. 304 At that stage of the hearing it was unclear from the evidence thus far that Mr Coles and Mr McNally had not been initially interviewed separately (this was subsequently clearly clarified by Mr Hutchinson), Mr Petterson believed they would have been interviewed separately but in any event they made their statements separately. He agreed that he would not have accepted an interview process that involved all four employees being interviewed together, not in terms of producing individual statements. He believed the normal process of events would be that the two managerial persons would be interviewed on an individual basis in conjunction with collecting their statements and that there would be a written account of those interviews if it was part of the investigation. 305 Mr Petterson agreed that the Managers were permitted to provide a statement of events, but the employees were not. He said that there had been "different methods used for collecting information" in the investigation process. 306 In relation to the demotion of Mr Meredith, he acknowledged that it was a serious matter for a Supervisor to sit there while men were drinking beer and not stop them. However if Mr Meredith had allowed them to start work knowing they had been drinking beer and allowed them to put others at risk there may have been a " different outcome, as in more serious". He agreed that that was a fine distinction but it was based on the evidence he had at the time when he looked at the report. They hadn't started work, they were at a person's residence and he didn't know what Mr Meredith's actions would have been if they'd said "let's go to work now". 307 Mr Petterson said he did not recall there being a record of any disciplinary issues on any of their files and agreed that there were no performance or disciplinary issues associated with any of the four employees. In making his decision he compared the incident with a previous issue at Sydney Water concerning employees and alcohol. However as he had determined that Mr Wotton, Mr Francis and Mr Mansfield had been drinking alcohol on that day and had not been honest about that he formed the view that in the light of the Drug and Alcohol Policy and Termination policies, such action constituted a dismissible offence. He did not consider there were any mitigating circumstances raised by the three men in his phone calls to them that were sufficient to warrant any action other than dismissal.

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308 Mr Slevin made oral submissions in support of the detailed written submissions as filed (Exhibit 60). He opened by taking the Commission in some detail to the relevant principles applicable to the three unfair dismissal applications. 309 Firstly the provisions of s. 88 of the Act and the matters that the Commission may take into account in determining such a claim and secondly the various principles arising from a consideration of specific relevant cases. 310 On the meaning of the expression 'harsh, unjust or unreasonable' reliance was placed on the High Court's consideration in Byrne v Australian Airlines (1995) 185 CLR 410 and in particular the joint judgement of McHugh and Gummow JJ at 465-468. 311 The principles applying to unfair dismissal proceedings in circumstances of alleged serious misconduct are summarised in the four questions posited by Sams DP in New South Wales Fire Brigade Employees' Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440. 312 In considering the employment relationship as a serious contractual relationship involving rights and obligations on both sides, reliance was placed on Day v Lumley Life (1999) 90 IR 70. 313 The requisite onus placed on a respondent in a matter involving dismissal for serious misconduct was traversed, with the principles and previous authorities summarised in the recent Full Bench decision in New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007} NSWIRComm 164. 314 The Full Bench also addressed the requisite standard to be applied being proof on the balance of probabilities as set out in the oft quoted passage to be found in Briginshaw v Briginshaw and explained in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR (at 449-450). 315 In dealing with the question of onus Mr Slevin took the Commission in some detail to Briginshaw v Briginshaw submitting that he was in some disagreement with the Respondent as to how those principles should apply. There was agreement as to the onus to be discharged by the Respondent in accordance with the above cases. However issue was taken with the Respondent's written submission that the strength of the evidence necessary to prove something on the balance of probabilities will vary depending on the nature of the allegation with serious allegations - fraud, physical assault etc., requiring strong evidence due to a presumption that members of the public do not normally engage in such conduct. The conclusion reached by the Respondent was based the false premise that the allegation was that of simply of drinking beer at lunchtime on a hot day. That simplification did not assist the Commission. The allegation is one of serious misconduct involving drinking beer on a work day in Mr Wotton's home contrary to a policy that led to summary dismissal. 316 Mr Slevin submitted that the standard to be applied was on the balance of probabilities, but keeping in mind the seriousness of the allegations and the seriousness of the consequences of the allegations. 317 Issue was also taken with the reliance placed by the Respondent on Ambulance Service of NSW v Buchmann (2007) 160 IR 57. At first instance Commissioner McDonald determined that he believed one account over the other. The case wasn't decided on onus, it was decided on which version of events was believed. The decision to grant leave to appeal was on the basis that insufficient reasons for that belief were given. What Buchmann highlights is that where there is clear conflict in evidence in proceedings amounting to a fundamental factual dispute then the Commission will need to resolve that dispute and identify how it does so. 318 The relevant evidence was in the testimony of the seven people present at the property on 16 October 2007 and the Commission was being asked to believe the Respondent's witnesses over the word of the Applicants. The question of credibility of the accounts given by the witnesses was an issue. Mr Slevin submitted that in such cases the consideration of the evidence as a whole is required as per Fox v Percy (2003) 214 CLR 118 (at 128-129)

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320 In these matters the Commission is asked to consider evidence that includes conflicting accounts of important events. The men categorically denied the allegations of drinking. The men denied the accounts given by the Managers as to being seen with beer and also making certain admissions. In considering the evidence the Commission should prefer the contemporaneously available accounts such as the diary notes and early statements of the Managers, the objectively established facts such as telephone records and the apparent logic of the events. 321 Mr Slevin took the Commission in some detail to Timms and others v Commonwealth Bank of Australia (2005) NSWCA137 and suggested that what was described in the authority was a "third way", where it wasn't said that the story was not believed, but that the party that had the onus had not convinced the court. It was submitted that based on this authority, that course was available to the Commission in these matters. 322 The Respondent alleged serious misconduct and the onus was therefore on the Respondent to prove such misconduct to the reasonable satisfaction of the Commission. The letters of termination and demotion set out the five allegations of misconduct and the findings and decisions made. The Respondent relied on the observations of the two Managers of what they saw, heard and smelt on the afternoon in question. However there was no direct evidence from the two Managers stating that that actually saw anyone drinking. The Respondent inferred that the men were drinking from the circumstantial evidence arising from the observations of the two Managers. 323 Mr Slevin relevantly summarised those observations relied upon as follows: Mr Wotton a) Mr McNally saw Mr Wotton holding a beer. b) Mr McNally spoke to Mr Wotton and during that conversation Mr Wotton admitted that the men had had "a couple" of beers. c) Mr Meredith admitted that the men were having a beer. d) Mr Wotton bumped into Mr McNally twice and on each occasion Mr McNally could smell beer on him. Mr Francis a) Mr McNally saw a bottle underneath Mr Francis's shirt. b) Mr McNally spoke to Mr Wotton and during that conversation Mr Wotton admitted that the men had had "a couple" of beers. c) Mr Meredith admitted that the men were having a beer. d) Mr Francis walked past Mr McNally and Mr McNally could smell beer on him. Mr Mansfield a) Mr McNally saw a bottle between Mr Mansfield's legs. b) Mr McNally spoke to Mr Wotton and during that conversation Mr Wotton admitted that the men had had "a couple" of beers. c) Mr Meredith admitted that the men were having a beer. 324 The four men, and Mrs Wotton who was present, denied the men were drinking and denied that either Mr Wotton or Mr Meredith made any admissions of drinking. It was explained that the beer was Mrs Wotton's and that Mr Francis was holding a bottle of soft drink under his shirt. 325 It was submitted that the Commission was required to consider the evidence and come to conclusion as to whether the Respondent had satisfied the onus on it and has proven that the men were drinking with the question being whether the Commission was persuaded by the case put that they were drinking. That required being persuaded that the evidence given by the Managers was firstly, a reliable account of what they saw, heard and smelt and secondly, that that evidence justified an inference that the men were drinking. 326 The ASU on behalf of its members relied on statements from 8 witnesses who gave evidence of what happened on both the evening of 15 October and the events of 16 October as well as Mr Campise who represented the men during investigation meetings. The statements of the four men and Mrs Wotton were thorough and provided full details of the relevant events and they were all cross-examined on those statements, giving forthright evidence and answering questions in a straightforward way. 327 The Respondent relied on the evidence of the two Managers, the members of the investigative team (Messrs Hutchinson, Pavlovic and McLachlan) Mr Petterson, as one of those who made the decision to dismiss, Mr Wood and Mr Stephenson who took the phone call of complaint. The Respondent's statements were found to be wanting on important details especially going to the investigation and there were significant omissions from the Respondent's case (initial interviews of the Managers and their initial signed statements). 328 It was also submitted that Mr McNally and Mr Pavlovic were not forthright in their evidence in cross-examination, failing to directly answer questions with Mr Pavlovic prone to consult his statement before answering questions. There were also inconsistencies in Mr McNally's evidence, with his evidence about when he first spoke to investigators contradicted by the evidence of other Managers. He also gave evidence that exaggerated the events of 16 October and included in his testimony conversations and events which no one else in the backyard that day witnessed including Mr Coles. The phone records' evidence provided a useful tool to test some of the assertions of Mr McNally about what happened on the day. 329 It was also submitted that Mr Coles recollection of important events such as when he first spoke to investigators was also found wanting. 330 It was submitted that the Commission should find that the Applicants' witnesses provided a more reliable account of the events of the 16 October 2007 than the Respondent's witnesses. 331 Mr Slevin comprehensively summarised the chronology of events commencing with 15 October, the events of 16 October, the complaint made in the process initiated, including the disputed conversations and the investigative process with appropriate and relevant reference being made to the transcript and the exhibits. He traversed the material covered in the above Background and Chronology. 332 He submitted that the main contest in the evidence is what occurred once the Managers arrived at the property at around 3:30 p.m. In taking action to dismiss and demote the employees, the Respondent has relied upon the Managers' accounts of what occurred. The allegations made against the four men are based on what the Managers saw, heard and smelt when they entered the backyard. However their evidence does not give the Commission a clear picture of what occurred. 333 The Applicants provided statement of their accounts of the events of the day and contested the accounts given by the two Managers in their filed statements. 334 Mr Slevin summarised the sequence of events whilst the Managers were at the property (indicating that phone records show this occurred between 3:30 p.m. and 4:30 p.m. and which were probably over by 4.18 p.m.) as follows: a) The Managers arrived at the property and had a brief discussion. b) The Managers moved to the backyard and Mr McNally spoke to the men. c) The Managers then spoke to Mr Meredith separately. d) The Managers moved to the front of the property and Mr McNally made some phone calls. e) The Managers returned to the backyard and told the men that they were stood down. f) The men then removed their belongings from the trucks and drove them onto the street. g) Sydney Water employees then arrived and drove the trucks away. 335 Mr Slevin drew the Commission's attention to the contemporaneous diary notes of the two Managers, the telephone records providing the times of important phone calls and giving a reference point to the competing accounts, the 17 October meeting with Mr Keelan (with both of them together), the notes of Mr Hutchinson and the further written statements of the Managers provided to the investigators as well as the record of interview (showing they were interviewed together). 336 Mr Slevin submitted that there was no a single comprehensive account of the Manager's version of events made prior to the dismissal and there was no contemporaneous account from each of the Managers of what had occurred. Instead each person had provided a number of versions of what happened. The two Managers did not sit down to provide a comprehensive written account of events until they prepared their statements for the proceedings in the Commission in February 2008, this was done after seeing the statements of the employees. 337 Mr Slevin summarised and detailed the various accounts of the two Managers and the changes and additions to those accounts as they evolved from the original diary entries, through the subsequent written statements of 22 and 23 October, the interview of 25 October and the witness statements filed and their oral evidence. 338 Mr Slevin traversed the additions Mr McNally made to his version of events from what he initially put in his diary notes (beer bottle on the table next to Wotton, bottle between Mansfield's legs and bottle under Francis' shirt) which were essentially repeated in the 22 October statement but in the interview of 25 October he had the beer bottle held by Mr Wotton in a black wet suit cooler. In the filed witness statement the additions were individually listed and included the location of the men and the table being noted, the backyard noted as neat and tidy, the beer bottles were identified as VB stubbies in stubby holders and Mr Wotton had his hand around the bottle, with no items on the table apart from Mr Wotton's bottle. 339 Mr Slevin submitted that this account was in stark contrast to his contemporaneous diary notes and the accounts given to the investigators. 340 Similarly Mr Slevin dealt with the differences in Mr Coles' accounts from what was in his whited out dairy notes (beer located on premises at the table) and his 23 October statement which was prepared by someone in HR, (beer located on table next to Wotton, Francis had bottle under his singlet, could not see whether Mansfield had bottle as view him blocked, did not see Jason Meredith with a bottle).

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343 It was submitted that there was evidence as to where each of the men were seated and where the Managers were standing and from that evidence it was impossible to conclude that Mr Coles could be in a position where he could see a bottle under Mr Francis' singlet and at the same time have his view of Mr Mansfield blocked. He said nothing in the interview of 25 October about what he saw and gave an expanded account of what he saw in his witness statement. He detailed the positions of the four men; Mr Wotton holding a Brown bottle which looked like a beer bottle in a stubby holder in his right hand sitting on the table; Mr Francis wearing a blue singlet, breathing hard, his chest going up and down, holding a bottle under his shirt and Mr Meredith holding a plastic bottle of soft drink. He said he did not focus on Mr Mansfield and did not see what he was drinking 344 The various accounts as to the conversations between the four men and the two Managers during the specified encounters as given by Mr McNally and Mr Coles (diary entries, October statements, October interview and witness statements filed) were also detailed with Mr Slevin drawing attention to any differences between those accounts. 345 The differences in Mr McNally's account were outlined. In his diary notes and 22 October statement he had Mr Wotton responding they were having lunch and when asked if they were drinking beer - "we've only had a couple". In the 25 October interview he again had that Darren said they were having some lunch and "we've only had a couple". In his witness statement he referred to Wotton having the bottle in his hand and when he replied he held up the bottle and shook it a little. There was also additional conversation detailed. 346 Mr McNally initially had Mr Meredith saying they were having lunch and had been there since 2 p.m. (diary notes). In his 22 October statement he repeated this but added that he told the employees they could not drive the vehicles as they'd been drinking with no response being given. In his witness statement there is much longer conversation recorded with Jason Meredith about what he is doing sitting there while those guys are drinking piss with Meredith agreeing he's just as bad. Mr McNally also asks him if he's had a beer and Meredith replies - "nup". 347 Mr Slevin also submitted that after Mr McNally and Mr Coles spoke to Mr Meredith and before went out the front of the property to make the phone calls, Mr McNally was the only person to give evidence that he spoke to the men telling them that he couldn't even let them drive the vehicles because he didn't know many how many beers they had had. 348 As far as Mr Coles was concerned, in his diary notes he had "Christian spoke to employees, they claimed they were having lunch, Christian asked how many beers had been consumed, they replied one". In his 22 October statement he indicated he couldn't smell alcohol on any of the employees, he was not close to them, he spoke to Meredith about what they were doing, didn't smell beer on him. He had Darren replying "a couple" to Christian's question about how many beers consumed and when Christian asked how many was a couple, he said someone mumbled one, he thought it was Vaughan. 349 It was also pointed out that Mr Coles had indicated that he did not smell alcohol because he was not close enough to the men, yet when he was in the backyard he was close enough to Mr Francis to observe his "chest rising and falling" and he later spoke to Mr Francis and Mr Wotton out the front of the property about giving them a lift home. 350 It was submitted that Mr Coles' account closely accorded with the version given by the Applicants except that the comment attributed to Mr Francis and the comments attributed to Mr Wotton were denied. 351 In his witness statement Mr Coles also had Mr McNally referring to Mr Wotton as having a beer in his hand and Mr Wotton holding up the bottle and saying "you know just a couple". Mr Coles also had Mr McNally responding to Vaughan Francis mumbling one, commenting that they didn't know how many beers they'd had, they'd been drinking beer and they couldn't drive the trucks. Mr Slevin submitted that no one else's version of the conversation included those comments 352 Mr Slevin also took the Commission to Mr McNally's evidence about the conversation he had with Mr Coles when they walked to the front of the house before ringing up Mr Nisbet. 353 It was submitted that the phone records of Mr McNally provided the timeframe in which the events occurred. Mr Slevin detailed the relevant phone calls and times and indicated that the events above all occurred within 15 minutes. 354 Mr Slevin also summarised the evidence as to the second encounter between the men following the phone call between Mr McNally and Mr Nisbet and highlighted the differences between Mr McNally's diary note, Mr Hutchinson's 18 October notes, Mr McNally's 22 October statement, the 25 October interview and finally his witness statement. 355 The original diary notes had Mr McNally advising the four employees he needed the keys and had arranged that the vehicles be picked up. Mr Hutchinson's notes had Mr McNally referring to smelling alcohol. The 22 October statement referred to the men moving the trucks off the property onto the street but that Mr McNally did not ask them to do this. He also referred to them moving about and a conversation with Mr Wotton about who he had contacted and that it was during this time he smelled alcohol on Mr Wotton and Mr Francis. In the interview of 25 October he also added that Darren bumped his shoulder twice when getting the tray out of his truck and observed he could smell alcohol on both of them. 356 Mr Slevin summarised Mr McNally's detailed description of the events in at five minute period which had Mr Wotton bumping him twice as he moved around, carrying his tray into the house and Mr McNally having a conversation with the remaining three men before they went to the trucks as well as a further conversation Mr Wotton when he came out of the house. Mr Slevin submitted that given the phone records, the above encounters could only have occurred within a five minute period between Mr McNally's phone conversation with Mr Nisbet and his subsequent phone call to Mr Stephenson. He submitted that Mr McNally's account of the events between the two phone calls was unreliable for the simple reason that the events described could not have happened in five minutes. Further most of the events described were not corroborated by any other witnesses including Mr Coles. (Mr Wotton bumping Mr McNally, Mr Wotton going into the house). 357 The accounts of the two Managers were inconsistent within their own evidence comparing contemporaneously material with witness statements and also inconsistent with each other.

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358 Mr Slevin submitted that the onus on the Respondent had not been met. The Respondent's case relied solely on credibility and that the men should not be believed because they had planned their lunch before they went to work. There was no evidence of this. 359 There was as much logic in leaving the break truck at Mr Wotton's and saying it wasn't needed. They were five minutes from the worksite and that they had to go back to Mr Wotton's home then didn't mean there was pre-planning of lunch. The Respondent's case was built on credit, they wanted to create a grand conspiracy theory because they reckoned the men decided to have lunch much earlier, had always planned to do it and were going back to Darren's to have beers. 360 Mr Slevin submitted that there was no contest that there was a complaint made however Mr McNally made no attempt to check the location. There was an almost "Starsky and Hutch" exercise that followed. There was in this exercise "a sense of anticipation" - they go investigating a complaint with men drinking beers, they go around the corner and see a beer on the table - they see what they expected to see. From there on, it's "them or us". They have to follow through with the complaint. 361 Mr Slevin also dealt with the substance of the complaint indicating that there were other aspects of the complaint that were not subsequently verified or the subject of any evidence (being there since midday, trucks parked at an angle etc.). 362 He further submitted that whilst it was appreciated that the terms of the complaint were not tendered as evidence of what occurred, it was in the minds of the Managers when they turned up, and formed the basis for what they were going to see. There was also the evidence of the conversation between Mr McNally and Mr Stephenson. So if one wanted to go into "grand theories" in terms of the logic of what occurred it was submitted that it was just as open for the Commission to come to the conclusion that really the Managers went there thinking they'd find people drinking, they saw a beer on the table as soon as they walked into the backyard, Mr Wotton was sitting next to the beer, they formed the conclusion the men were drinking and from that point on they weren't to be convinced otherwise. 363 Mr Slevin submitted that in relation to Mr McNally, he gave evidence as to his character -- that "he's firm but fair". Mr Petterson gave evidence that in the ultimate decision to prefer the Managers' account over the employees he took into account his view of Mr McNally as being "a no-nonsense sort" of fellow. Mr Meredith said that when Christian got something into his head he didn't want to hear anything different from anyone else. In the witness box Mr McNally refused to concede anything and one could well appreciate that Mr McNally saw a beer on the table and as soon as he did he decided these blokes had been there drinking all afternoon and then from that point on he told Mr Nisbet and made a note in his diary. His story had gotten bigger when he got to the interview of the 25th of October and it becomes enormous by the time he is in the witness box and he is always backing himself in.

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364 It was submitted that in relation to the applicant's version of events that after they were stood down, they were not asked anything further on that day. It was assumed by Mr McNally that they had been drinking after the first encounter with the men in the backyard. That was reported to Mr Nisbet who made the decision to stand them down. From the 17 October they were then contacted by Mr McLachlan with letters containing the allegations that the respondent wished to put to them at the meetings of 23 October. The allegations in the letters were the same allegations to be found in the letters of termination. 365 It was further submitted that in contrast to the meetings held with the Managers on 17 and 25 October which were held with the two men together, the meetings with the employees were held separately with records of interview attached to each of the employee's statements. It was also noteworthy that the interviews were very brief. 366 As to the first allegation of being absent from work without permission all four men admitted this. Mr Francis explained having lunch at Mr Wotton's was quicker than going back to the Depot. Mr Meredith explained that were discussing work over lunch. Mr Mansfield explained that he followed his team leader. 367 All four men denied the second allegation that they were drinking whilst on duty and in the knowledge that they had to drive Sydney Water vehicles. In addition to the denials they each made, they also indicated in particular: · Mr Meredith explained that the only person drinking was Mrs Wotton and the beer on the table was hers. He did not hear Mr Wotton say "we have only had a couple" and there were other beers around. · Mr Mansfield said there were beer bottles around from the night before. Two bottles on the ground near his chair but they were there when he arrived. He didn't hear anyone admit drinking. · Mr Francis explained the bottle under his shirt was ginger beer and. He did not answer Mr McNally. He heard Mr Wotton say his wife was having a beer. He didn't understand how Mr McNally could have smelt alcohol on him as he was sitting that am. · Mr Wotton denied saying "we have only had a couple" and explained that he said "my wife has had one". He denied Mr McNally was ever close enough to smell beer on him. 368 Copies of the statements from Mr Wotton's neighbours (Mr Jehan and Ms Wotton) stated the men arrived at approximately 2:30 p.m. and there was no loud noise or evidence of men drinking. These were also provided to the investigation team and they were subsequently visited by Mr McLachlan and Mr Pavlovic. Mr Jehan was home and verified it was his statement. 369 Mrs Janelle Wotton also provided a short statement outlining events and indicating that she was the one drinking a beer and left it on the table and that Sydney Water made an assumption that the beer was one of the boys. The beers were in the backyard were left over from the night before. She was not interviewed by the investigation team with Mr Hutchinson explaining that they decided not to interview her because they'd been provided with a statement which they took as being her version of events. 370 Mr Slevin also submitted that not all of the five allegations were put to the four men during the interviews as follows: The allegation that the men intended to drive Sydney Water vehicles after consuming alcohol was not put to Mr Wotton or Mr Francis. It was discussed with Mr Mansfield who said he was travelling with Mr Wotton may have driven that afternoon but that had yet to be decided.

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The allegation relevant to the Mr Wotton and Mr Francis that as team leaders they failed to follow defined processes and procedures was not put in the interviews. Also the allegation that Mr Meredith as Field Supervisor failed to provide satisfactory supervision in relation to work performance and health and safety was not put to him in his interview. 371 The interviews were the only chance the employees had to respond to the allegations. They denied the allegations put to them and the investigators then interviewed the managers for the first time together and sought further information. That further information was not being put to the employees before they were dismissed. 372 Mr Slevin then detailed the sequence of events and conversations exchanged as contained in the versions put forward by the Applicants and Mrs Wotton. (as outlined in the Background and Chronology above). 373 He noted that the accounts of the first conversation were consistent and that they were similar to the accounts of Mr McNally except for his reference to men supposed to be working on the pipeline and Mr Wotton saying "we've only had a couple". 374 There were consistent accounts from the Applicants about the second conversation. 375 However the first time Mr Wotton heard of the allegation of bumping into Mr McNally twice was when he read Mr McNally's witness statement. The allegation was denied by Mr Wotton. 376 The Applicants' accounts of the events in the backyard on 16 October were consistent and accorded with the explanations they gave on 25 October. They described two brief encounters with the Managers which accord with the timeframes that are evident in the phone records. 377 The Applicants' statements were made on the basis of "words to the effect of" was said, but they were also consistent with the contemporaneous diary notes in terms of the order of the words said. Mr Slevin submitted that it couldn't be taken any further to say that the Applicants had given rote accounts as ultimately the answer to the complaint that they had given the same version of the conversation, is that that was because that was what was said. It was not something that could be held against the Applicants. 378 Mr Slevin refuted the criticism in the Respondent's written submission as to Mr Mansfield's credit arising from the letter of Mrs Mansfield and the suggestion that he was either lying to his wife or was lying otherwise. His evidence was that he didn't tell his wife the things that were in the letter. No finding could be made as to Mr Mansfield's credit in circumstances where reliance was put on a letter from Mrs Mansfield and where she had not given any evidence to say that her husband had told her these things. Mr Mansfield said he didn't tell her those things and didn't know where she got them from. 379 Mr Slevin also refuted the submission made against the Applicants for not speaking up and telling the Managers that they weren't drinking. Simply put the Applicants said, when this was put to them in cross-examination, that they just didn't have a chance. The way things proceeded in those very short time frames didn't give them the opportunity to approach the Managers and tell them they weren't drinking. After considering the phone records, it was clear that the conversations took place in around 15 minutes and there just wasn't any opportunity for anyone to say anything. It was also submitted that the circumstances were that firstly, Mr Wotton had already explained that the beer on the table was his wife's and secondly, as far as Mr McNally was concerned, the view was expressed by a number of witnesses that Mr McNally was someone who just wouldn't be told in any event. 380 Mr Slevin submitted that a further reason to find that the Respondent had failed to meet its onus in these proceedings was that the Applicants' version of events was more reliable. On the balance of probabilities it is the version offered by the Applicants that was more persuasive. The Managers' version of events was unreliable and their testimonies were riddled with inconsistencies with for example Mr McNally and Mr Coles not agreeing on the content of key conversations. The Commission was not assisted by comprehensive contemporaneous account of the Managers' version of events which relied on the unavoidable collaboration of the two Managers at meetings where they listen to one another in their version of events. 381 It was submitted that the Respondent had failed to meet its onus in the proceedings because it had failed to prove that the misconduct had occurred. 382 Mr Slevin also submitted that issues arose about the manner in which the investigation was conducted. He took the Commission in some detail through the sequence of events and procedures followed in the investigation (as set out in the above Background and Chronology) and the evidence given and indicated that the evidence showed the following arose: · No interviews conducted with the managers individually to test their version of events. · The statements collected from the managers prior to putting the allegations to the employees were brief and did not include for accounts of the events of the day · Relevant evidence such as photos and phone records were not consulted · an eyewitness in Mrs Wotton was not interviewed · The employees were not given the opportunity to respond to matters raised after they had been interviewed. · The decision to dismiss was based on a decision to believe the managers over the employees and the credit of the managers was taken into account. 383 It was submitted that those matters would justify finding that the employees were unfairly treated on procedural fairness grounds and reliance was placed in this regard on Byrne v Australian Airlines (1995) 185 CLR 410 (at 430). The Commission was also referred to the relevant provisions of the Act at s.88 as well as the decision of the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 (at 389). 384 Mr Slevin submitted that the ASU's primary submission was that the disciplinary action taken by the Respondent was harsh, unjust or unreasonable because the serious misconduct alleged was not proven, in the alternative the investigation conducted by the Respondent was such that the employees were denied procedural fairness. The disciplinary action taken by the Respondent was thus harsh unjust and unreasonable. 385 Orders of reinstatement to their former positions were sought in relation to the three men dismissed which involved the making of orders under section 89. Orders and directions under sections 136 and 137 of the Act were sought in relation to the demotion of Mr Meredith. 386 Mr Slevin submitted that was now trite to say that reinstatement was the primary remedy and relied on the following cases:- Little v Commissioner of Police (No.2) (2002) 112 IR 212 at [88]; Riley v Workcover Authority [2006] NSWIRComm 108 at [94], Plummer v Stannard Bros Launch Service (2005) 145 IR 111 at [145]; and Budlong v NCR Australia Pty Limited [2006] at paras [105] to [110]. 387 It was put against the applicants in the Respondent's written submissions was that there was mitigation by the men and that they picked up work shortly thereafter. The evidence was that the work that was picked up was work that paid less. There was no principle that employees who mitigated their loss by going and finding another job was a reason to deprive them of the primary remedy. That was not a consideration that would have the Commission consider that another remedy was appropriate. However it was accepted that were the Commission to order reinstatement, it might do so in terms that Sydney Water would only have to take into account making a back payment of difference between what they had had earned in that employment and what they would have earned with Sydney Water had they not been dismissed. 388 It was also submitted that in the current circumstances the principles applying to be unfair dismissal applications should also be applied to the dispute application. The disciplinary action taken against Mr Meredith was based on the Respondent's findings that even though he was not drinking he was present and supervising the men when they were drinking. The serious misconduct alleged on his behalf was also not proven and he should be restored to his substantive position. Submissions for the Respondent

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393 Mr Taylor submitted that serious allegations such as fraud or physical assault would require strong evidence to satisfy the decision maker that on the balance of probabilities the illegal conduct had occurred. This was because of a presumption that members of the public do not ordinarily engage in such conduct. In this case the allegation was of drinking beer at lunchtime on a hot day. While the consequences of that conduct were significant for the individuals, the conduct was not criminal. It was not behaviour which the Commission would be slow to assume that the individuals would engage in. Mr Taylor submitted that in those circumstances the Briginshaw approach, as properly understood, would not require particularly strong evidence to satisfy the Commission that on the balance of probabilities the employees were drinking alcohol. 394 Mr Taylor went on to submit that there was no real difference between the parties as to the law, but rather a different view of the inherent unlikelihood that four men on a hot day, having decided to have a long lunch in someone's backyard, would decide to have a beer. It was not inherently unlikely that this could have occurred. That act of course alone did not prove it but it allowed the Commission to start from a premise that what was being alleged was not inherently unlikely. So the strength of evidence necessary might not be the same as if one was alleging a criminal conduct such as an assault or ought which were examples which had come up in unfair dismissal cases in this jurisdiction. 395 In any event it was submitted that in a case such as this, where the Commission had competing evidence on oath, the case was not going to be decided on the question of onus. This was not a case where the Commission was simply dealing with some circumstantial evidence like some beer bottles found in a residence. It was a case where the Respondent had put on sworn evidence that the employees, amongst other things, admitted they were drinking beer. Onus did not come into it in this sense, that either the Commission accepted the evidence or rejected it. If it accepted the evidence then it followed that the Commission would accept the Respondent's case. If it rejected that evidence then it followed that the Applicants would succeed. Therefore part of the Commission's reasoning must involve considering whether the evidence of the Applicants was credible or not. 396 Where there was a clear conflict of evidence that emerged in proceedings amounting to a fundamental factual dispute the Commission would need to resolve that dispute and identify how it did so. Reference in this regard was made to Ambulance Service v Buchmann (2007) 160 IR 57 at [49]. 397 Mr Taylor in reply to Mr Sleven's submissions also took the Commission in some detail to Timms v Commonwealth Bank of Australia pointing out that it was clear that it wasn't simply a case, as was suggested, where there was conflicting evidence and the trial judge didn't decide whether the Timms were telling the truth or their version could be accepted. It was simply decided that Mr Walker's evidence wasn't sufficient to meet the onus. The trial judge did actually come to terms with whether the Timms evidence should be accepted. 398 In this matter, once one moved from the proposition that there was not just circumstantial evidence, but that there was also evidence of admissions and contemporaneous notes of admissions, in addition to evidence of seeing bottles of beer, the Commission would ultimately be in the position of having to decide whether they were matters to be believed in that regard and was the sworn evidence of the Managers to be accepted. It was only if the Commission rejected their evidence and said they were not to be believed did one get to the point of accepting the Applicants' version of events. 399 Mr Taylor also submitted that they were in agreement that the nature of the evidence that the Commission would place particular weight on, was the evidence of notes and recollections that are most contemporaneous to the events. The starting point being the diary notes. Whilst Mr Slevin relied on the diary notes to draw distinctions between what was in them and what was later said in evidence by the Managers, mainly to note things containing more detail, what was conveniently not paid any regard to were those things in the diary notes that were consistent with the evidence that the employees admitted they were drinking on that day.

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400 Mr Taylor submitted that it was a "rather schizophrenic approach" to say the diary notes were the best evidence, except those bits that didn't assist. The position was, that as to key facts, the evidence of the Managers was backed by the contemporaneous records and if the Commission were to find those facts, then the Commission would ultimately find that the employees had beers and admitted they were drinking them. If the Commission accepted that, then everything else must flow, the denials of the employees would not be accepted, the Commission would find they were drinking and the applications would be dismissed. 401 Mr Taylor responded to the submissions made on behalf of the Applicants and the criticisms of the additional detail given by the Managers in their subsequent statements with the suggestion that the accounts were exaggerated and raised issues of credibility. In relation to the admission made by Mr Wotton that would be a powerful submission if that were the only evidence as to admissions made. However it ignored other evidence as to other admissions noted from the word go. 402 The second fundamental difficulty with this submission that had not been addressed at any point was any explanation of why Mr McNally and Mr Coles would lie about what they believed they had seen and heard. Not a single motive was put to them in cross-examination or proffered in submissions. That was a very powerful consideration that should be taken into account by the Commission. 403 Mr Taylor also rejected the submissions made criticising the evidence of Mr McNally and Mr Coles which seem to be based on their ability to recall the way the matter was subsequently investigated as against what occurred on the day. It was submitted that it was not of any particular importance as to how they recalled being interviewed after the event. In contrast there was no evidence or disclosure from the applicants who met in a room with Mr Campise and told him their version of events the next day. There were also no notes of that meeting. If there was any criticism of the employer as to the way information was gathered, the same criticism could equally be made of the employees who were discussing it as a group. 404 Mr Taylor submitted that it was open on the evidence to find six key facts. If those facts were found then the case would be determined in favour of the Respondent. Mr McNally and Mr Coles' evidence had been consistent throughout and was supported by their contemporaneous diary notes and the short form statements they prepared shortly after the incident. 1. A complaint was made by member of the public recorded contemporaneously by Mr Stephenson. There was no dispute that the complaint was made nor as to its terms (Sydney Water employees saying words to the effect of a "pass me another beer"). 2. When the Managers arrived: · Mr Wotton had a beer on the table next to him and held it in his hand (McNally and Coles). · Mr Francis had a stubby bottle underneath his singlet - not contested. · Mr Mansfield had a stubby of beer between his legs (McNally), not seen by Coles as his view of Mansfield's and lap obscured. 3. Mr McNally asked whether the employees were drinking beer, and in response: · Mr Wotton admitted drinking using words to the effect of "we've had a couple" (McNally and Coles) · Mr Francis confirmed this by saying they had "one" (4) McNally did not recount this -- where Coles says Francis mumbled and he was standing closer to him. 4. When the Managers had a conversation with Mr Meredith up the driveway he denied he had had a beer effectively admitting the others were drinking by saying he accepted that he was as bad as the others (McNally and Coles). 5. Mr McNally got close to Mr Wotton and Mr Francis at separate points and in each case smelt beer on their breath. 6. Apart from Mr Meredith, at no time did any of the employees deny they had been drinking beer, claim they had been drinking soft drink, or show they had been drinking soft drink or take any active steps to disabuse the Managers of the view that they had been drinking beer (clear from McNally and Coles statements). This was not effectively put in contest by the employees beyond a single statement alleged to have been said by Mr Wotton that his wife was having a beer and by him also saying the word "bullshit". 405 The sworn evidence of Mr McNally and Mr Coles was not shaken in cross-examination even though it was suggested that in their subsequent statements they were "adding to" or "exaggerating" their evidence. There was nothing inappropriate or indeed surprising that statements prepared for a hearing with the assistance of advocates would be longer and more detailed than statements prepared immediately after the event particularly diary notes. This was no different to the initial half page statement of Mrs Wotton and her subsequent more detailed witness statement. 406 Mr Taylor submitted that when the contemporaneous diary notes and the subsequent short-form statements prepared by Mr McNally and Mr Coles were considered, the Commission would find that each of the key facts were recorded there. (Those key facts and the appropriate references were then detailed). 407 Whilst Mr McNally did not record in his diary notes that he smelt beer on the breath of Mr Wotton and Mr Francis, that was recorded in the short form statement he made only a few days later. 408 In relation to Mr Coles' written over diary note he was cross-examined on the basis that the diary note can still be seen both underneath the whiteout and also if one turns the page and looks on the reverse side. If the Commission examines that page it can be seen that, contrary to the suggestion put to him in cross-examination, Mr Coles' evidence is correct that the content of the original diary note does not differ in any significant respect to the rewritten one other than in neatness and style. In particular it was noted that the words of the original diary note "Vaughan also said he had one beer". It was submitted that the evidence before Commission was that Mr Coles considered Mr Francis a long-standing friend and in those circumstances it was not surprising that when he rewrote the note he deleted the specific admission by Mr Francis and turned it into a more generic "they". The original diary note confirmed that the admission by Mr Francis was made. 409 The Respondent had prepared an entire transcript of what can be read as the original diary note of Mr Coles and attached that to the written submissions. A copy was provided to the Applicants' Solicitors and they were asked if they agreed that the transcript was accurate, they indicated they could not agree to the accuracy and noted that at least in one respect there are some additional words that can be read. 410 The Commission pointed out that the only diary notes of Mr Coles in evidence were the photocopy and original whited out version. Mr Taylor indicated that the transcript provided was a submission only. 411 Mr Taylor submitted that Mr McNally and Mr Coles were interviewed again only nine days after the incident (25 October). The record of interview confirmed three key matters: · That Mr McNally saw Mr Mansfield with a bottle of beer between his legs, · That Mr Wotton definitely said words to the effect of "only had a couple" (confirmed by Mr Coles), · Mr McNally got close to Mr Wotton and Mr Francis and smelt beer on their breath. 412 The Respondent was criticised for interviewing Mr Coles and Mr McNally at the same time. It could be accepted that it was always better to have witnesses interviewed separately. However even if the fact gathering exercise was not as it should have been, that did not mean the Commission would find that Mr McNally and Mr Coles were not telling the truth. The employees similarly discussed the events of the day, as a group, on more than one occasion, including after the event, as Mr Wotton drove them all home, and the next day when they told Mr Campise what had happened (evidence of Wotton, Francis and Meredith). 413 For the above reasons the Commission would accept the Managers' evidence because it was backed up by their contemporaneous diary notes and their short-form statements prepared only a few days later. This was to be contrasted to the employees' statements made some months after the event and recorded, at least in respect of the key conversations, in identical terms. This suggested not that there were five independent recollections but rather that there was one "story" or "script" to which they each adhered. 414 There was a second fundamental reason why the Commission would accept the Manager's evidence and that was that they had no reason to lie. Mr Coles considered himself a friend of Mr Francis (once living in the same street and having many social dealings); Mr McNally had worked with Mr Francis as had Mr Coles with Mr Meredith. Mr Coles had also known Mr Wotton over an extended period first meeting when they were at TAFE together. 415 Critically, it was submitted that during their cross examination it was not suggested to either of them that they had any reason to lie. Not a single proposition was put to them as to why they would be saying anything other than what they believed to be the truth. 416 It was submitted that in comparison to the Manager's evidence, the evidence of the employees was not credible. It was "embarrassingly consistent" in the sense that in respect of the key factors it was not just similar but word for word identical. 417 Mr Taylor took the Commission to Sydney Water's Drug and Alcohol Policy and indicated that each of the Applicants agreed in evidence that they were aware that if they were to drink it was a dismissible offence. 418 Mr Taylor then dealt with specific issues as to the credibility of the Applicants' evidence as follows: Lunch was held at an employee's home s There was no contest that it was a hot, windy day or that the employees had been working since 7.00 a.m. and had worked through their normal lunch break. It was not credible that the idea of having lunch at Mr Wotton's house for the following reasons: · Mr Francis had seen the worksite the day before, he knew before leaving the Depot they'd be working through their normal lunchtime. It wasn't credible that they wouldn't all discuss how long the job would take or in turn discuss when to have lunch. · Mr Mansfield drove Mr Wotton's break truck to his home, leaving it there before going to Barden Ridge. There was no reason why he could not have driven it to the Mt Carmel gate. · Mr Wotton admitted he knew he would need the break truck to do the fire trail work and it was left at his home on the basis that he already knew he would be returning home before doing the fire trail work. · Mr Wotton accepted that unless he was planning on having lunch at his home it was more sensible to keep the break truck with him. · Mr Meredith said Mr Wotton told him at 12.15 he would be going back to his house after finishing at the worksite. s It was not the first time Mr Wotton had had lunch with Mr Francis at his home despite their initial reluctance to recall such. There would be little difficulty concluding that either of both had some idea of lunching there even if they had not told the others till later. s That they went to Mr Wotton's home rather than the Heathcote Depot (a few minutes and 2 traffic lights away) or returning to the Miranda Depot and had an extended lunch break was more consistent with the suggestion they intended to relax with a beer rather than take the normal break and return to work. They attempted to defend the choice on the basis that it was further away. This lost credibility with Mr Mansfield's evidence that it was common to travel 40-45 minutes to return to the Depot for lunch. Any additional travel time would still have been work time and they would still get a break. The reason was for the choice was simply preference rather than some other reason.

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Applicants conferred before giving their version of the events Each of the witnesses had conversations with each other prior to the statements being prepared and indeed prior to the interviews held with them by management. This included a meeting of the four men with Mr Campise where they are all told him their story. Examples of that evidence was provided such as Mr Francis indicating that he had discussed the events of the day with the others and they " discussed what we remembered". He also had spoken with them by phone on a number of occasions about "the events of the day". The Applicants saw each others' evidence The weight that could be put on their evidence was further significantly diminished by the fact that each of them read each others' statements prior to giving evidence thus reducing the ability of the Commission to accept that they had an independent recollection of the events. 419 Mr Taylor then took the Commission in some detail to further particular issues that it was submitted challenged the credibility of the evidence of the Applicants and Mrs Wotton as well as their general demeanour as witnesses. 420 Vaughan Francis His evidence was given in a firm manner consistent with being a Union delegate prepared to speak up on behalf of members. He stuck to his story. Additional particular issues raised: · Little independent recollection of conversations, quoted verbatim. · No recall of other conversations yet an ability to remember other detail (precise location of empty bottle). · As an outspoken union delegate said nothing to Managers to disabuse them of their views about them drinking. · Sat still, saying nothing with a stubby under his singlet, no explanation provided and accepted Mr McNally speaking to all. · Agreed he had no difficulty in speaking up and this confirmed by others. · Did not check with Mr Meredith he had made clear to Managers they weren't drinking. · Did not speak up or check anyone else spoke up in circumstances he admitted looked "incriminating". · Did not speak up at any stage, when they were stood down, accused of drinking more than one. · Attempted to downplayed friendship with Mr Coles, when clear they knew each other socially outside of work, nothing to stop him speaking to Mr Coles. · Silence is inconsistent with his character. Explanation he knew they were drinking (Mr Coles heard him say "one"). · Impossible to accept evidence as to why stubby under singlet -- (to keep it cool) not credible. Given nature of the day, length of time on concrete etc, it would have been warm by then anyway. On balance of probabilities more likely bottle was under singlet to hide it from Managers view. · To have only single ginger beer, given nature of day, not credible, · Evidence of bottles being cleaned up also casts doubt. · Evidence re job card filled in by Mr Woods demonstrates preparedness to maintain statements he knew to be untrue. 421 Darren Wotton He gave evidence in a very quiet voice, clearly uncomfortable. His overall demeanour was of someone not comfortable with the evidence he was giving. Additional particular issues raised: · Claimed in interview with management "never" had lunch with Mr Francis at his home, but sworn evidence claimed interview record incorrect. Mr Campise agreed answer was "never". Conceded in evidence (acknowledged by Mr Francis in interview and evidence) that they had had lunch before at his house. His initial answer to investigators demonstrated a lack of honesty affecting his reliability. · Had difficulty remembering anything that wasn't in his statement which he could recall word for word. Generally demonstrated little independent recollection apart from statement. 422 Janelle Wotton Her evidence could not be accepted as she had the same motive as the four employees to misrepresent the evidence in support of the husband's application to get his job back. Additional particular issues raised: · Any independent recollection of events clearly affected by any discussions with her husband leading to their recollections being inextricably entwined. · Her recollection of the first conversation with the Managers identical with no explanation and demonstrating an ability to recount it verbatim as in a script. · She expanded and exaggerated her evidence re empty beer bottles from first letter to subsequent statement ("few" becoming "two dozen"). · Her evidence as to cleaning up bottles was consistent with there only being a few. · She knew her husband's job was on the line yet like the others said nothing to Managers. She knew Mr McNally from social contacts. · If there was only one beer and it was hers, it was not credible that she said nothing to that effect. · On the balance of probabilities it was more likely she said nothing because she knew they had been drinking and that Mr Wotton had just admitted as much. 423 Jason Meredith Additional particular issues raised: · The senior employee present, ample opportunity to tell Managers other employees not drinking yet failed to do so. Spoke to them separately up the driveway but did not say other employees not drinking or attempt explanation about VB bottles being present. · Did not record in his first statement that he had been specifically asked whether he had been drinking by Mr McNally. Agreed it was said in his reply statement. This was the obvious time to say something about the others but he failed to do so. He agreed it was important to say the others were not drinking but failed to do so. · His explanation for this revealing "I didn't think it would go that far, no. None of us thought it would go that far". In other words they thought at the time that being found drinking a beer would not lead to dismissal. · Whilst recalling verbatim other conversations could not recall what he said to employees after speaking to Managers apart from they were out the front making a decision. 424 Ross Mansfield His evidence was characterised by his ability to repeat verbatim what was in his statement but was unwilling or unable to recall anything not in his statement. Additional particular issues raised: · Mr Mansfield the only one with material setting out what he told someone immediately after the incident -- Mrs Mansfield's letter to Mr Petterson (no question that letter sent) making certain statements of fact concerning her husband: - - He had an argument with Mr Francis that morning who intimidated him. - He rang his wife that morning saying he felt threatened by Mr Francis. - He was told he was finishing earlier than his due finish time, felt too intimidated to say no and "followed orders". · He denied those factual statements made by his wife in that letter. · His telephone records show he did call his wife that morning · In the interview with management when asked what had occurred he said "merely following instructions". This was denied in his reply statement but agreed in cross examination. · No credible reason given why she would have written things that to her knowledge were not true. Much more likely this was what he told his wife at the time. If he now says they are not true either he was lying to his wife or to the Commission. Either way casts serious doubts as to credibility of his evidence. · Not credible that he had nothing to drink over the hour notwithstanding eating bread rolls and sausages. · He lost credibility when he was "positive" about some things which on the other evidence the other applicants had occurred e.g. Mr Wotton having nothing to drink not even water, and denying "absolutely that the bottles were cleaned up. Yet this was recanted on subsequent questioning from the Commission. · He was willing to give unfounded evidence to suit his case as demonstrated by what is said about Mr McNally although it was clear he had no basis to make that statement - very little dealings with him, hadn't spoken to him at all, working on sewers the previous week, based at different Depots. · It was relevant to the issue of his credit that Mr Woods was not cross-examined on his evidence. His evidence was contrary to that of Mr Mansfield on the issue of the rope. 425 Peter Campise Additional particular issues raised: · He was unable to give evidence of the events of 16 October with any clear recollection. One of the few matters he claimed to have a clear recollection of i.e. to phone calls to Mr Francis and the timing of those calls, could not have occurred, based on the evidence of the phone records. · He said he had compared the statements of the interviewers and the Applicants concerning the disciplinary interviews and the applicant's versions were correct but was clear in cross examination there was no detailed comparison and he was unable to recollect seeing the relevant statements. One of the few issues he was definitive and confident about was Mr Wotton saying "never" about lunching previously at his home with Mr Francis. · One aspect of his evidence was of some minor significance. He said he was not just a silent witness during the interviews but spoke up where necessary to protect the employees' interest (asking the interviewer to move on where he thought their answers were "being tested"). · In those circumstances the Applicants could have no complaint either that they were not afforded procedural fairness at those interviews or that management did not properly explore with them in detail their version of the events of that day. 426 On the issue of procedural fairness it was submitted that witnesses of the Respondent were cross-examined in such a way as to suggest to them that in some ways the methods by which the allegations had been investigated were less than ideal. If the Commission were to find that the employees were drinking and had been less than truthful about that subsequently, then any deficiency in the manner in which it was investigated would not be sufficient to render the dismissal overall to be harsh, unreasonable or unjust. 427 Mr Taylor also relied on Antonakopoulos v State Bank as well as Mason v Electricity Commission of New South Wales and in so doing submitted that the fundamental requirements of natural justice were provided as follows: · The employees were stood down on pay whilst the matter was investigated. · The employees were given details of the accusations in writing in advance. · The employees were given notice of the date they were to be interviewed · The employees were entitled to bring along a union officer as a witness and to protect their interests in the interview. · The employees were given the opportunity of stating their version of what occurred prior to any dismissal taking place and presenting such material as they thought relevant. 428 Mr Taylor rejected the complaint that seemed to be made about procedural fairness and the suggestion that further information was obtained from the Managers after the interviews and was not given to the employees. It was not clear what that so-called new information was, the only example given was the issue of Mr Wotton bumping into Mr McNally. However the allegation was not one of bumping but of breath having alcohol on it and that was known beforehand. No different result would have arisen if the allegation of bumping had been raised. There was no procedural fairness that could possibly be said to arise from that and certainly nothing of any significance. 429 Mr Taylor submitted that the question of harshness did not arise for consideration and would only have been of importance if the employees admitted they had drunk beer see Lorenzato v Sydney Water Coproration [2002] NSWIRComm 277. In this case they had denied drinking beer. If the Commission found they were drinking then they not only breached a strict policy well known to them, but equally importantly, they had failed to tell the truth about that and had collaborated together in that regard. That conduct would disentitle them to any possible consideration that their dismissals were harsh. In addition none of the employees dismissed had lengthy periods of service. 430 Mr Taylor further submitted that the question of remedy did not arise because the Commission would find that the dismissals were not harsh unjust or unreasonable. They had short periods of employment. They obtained alternative employment within two weeks of termination and had been paid two weeks pay on termination. Therefore there was no period where there were not in receipt of an income. 431 Further Sydney Water had no vacancies at the Miranda Depot and if reinstatement were ordered they would displace existing employees. Any reinstatement would have to be to vacant positions and if the Commission was minded to reinstate it should do so without necessarily defining the particular position or location to which the employees would be reinstated, to allow for them to be placed in existing vacant positions rather than into someone else's current position. 432 In conclusion Mr Taylor submitted that the Commission would determine this case based on a factual finding about whether or not the dismissed employees were drinking beer. In determining that question the Commission must decide whether to accept the employees' evidence or the Managers' evidence.

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434 Whilst it was understandable that the employees, wishing their jobs back and knowing the strict no alcohol policy, would take the view the only way to do this would be to deny they were drinking, having decided to take that approach that meant that if the Commission accepted the Manager's evidence that they were drinking it would not be possible to form the view that it was harsh to dismiss them, given the their determination to give a false story to both the employer and the Commission. 435 Where a Tribunal was faced with a factual situation where witnesses have diametrically opposed recollections of the same event, the Tribunal must try to determine where truth lies as best as possible. The two facts which would lead the Commission to prefer the evidence of the Managers over the employees was firstly the contemporaneous notes made by them and secondly that they had no reason to lie about what they saw. 436 For the reasons outlined the applications should be dismissed. 437 Mr Slevin in reply addressed the two fundamental issues raised by the Respondent. Firstly you did not have to rely on the contemporaneous notes to say that they were accurate, the issue was whether they were truthful in the witness box and whether they were truthful as well when they had written the contemporaneous material. Because the accounts were inconsistent they could not be relied upon. It was not a case of one story by the Managers versus the story of the employees. It was different versions that developed over time with the diary notes as the starting point. There were internally inconsistent accounts and inconsistent accounts between Mr Coles and McNally. 438 Secondly as to the question of motive, Mr McNally and Mr Coles were cross-examined extensively about exaggerating and embellishing their evidence. That was done on the basis that they were exaggerating to fit the story they'd given on the first day. It was not the case that it was necessary to say that if the accounts were unreliable or they were lying it had to be proved as to why they were lying. There was no principle that that was required. In a credit case motive might be relevant and if a motive for lying could be proven then that would assist a Tribunal in determining they were going to be believed. It was simply one of a list of things to be looked at when considering credit. 439 Mr Slevin also refuted the proposition that the Applicants' self-interest was an overarching motive for them and they couldn't be believed because their motive for lying was that they wanted their jobs back. That was the "litigants self-interest". But that was the case for both sides. If one was looking for some general explanation for motive then Mr McNally and Mr Coles came and gave their evidence because they were witnesses for the Respondent and the Respondent's case was that they had not unfairly dismissed the employees. 440 Mr Slevin also refuted submissions made by the Respondent that the two Managers were reporting on the workers "with regret". Reliance was placed on the evidence of the Managers as detailed in the various discussions reported between themselves. It was submitted that there was no regret, it was "us and them". They had come there, seen a beer on the table, "it's us or them", they had to do something about it because if they didn't do something about it then it would come down on them. That was the approach. It wasn't a case of regret, it was a case of self-interest. 441 Mr Slevin also rejected the criticisms made of the Applicants for not speaking up, again pointing to the timeframe, based on the phone records, within which the events and conversations happened. In those circumstances the opportunity for people to stand up and say look "we're not drinking" fell into the realm of speculation. The logical sequence of events was that the Managers turned up, there were brief discussions, it all happened very quickly and assumptions were made by the Managers. That was the better approach to the evidence of what occurred. 442 Mr Slevin also submitted that there was a problem in the Respondent relying on the acts of the Applicants of cleaning up the bottles of beer as being consistent with them covering up because Mr McNally said that he watched them and that didn't happen. If the Commission was going to rely on the Applicants' evidence to make a criticism of their credibility, the Commission would have to do it by saying first that it didn't accept Mr McNally's credibility on the issue that he didn't see them cleaning up. 443 It was submitted that that type of example was littered through the Respondent's submissions. One couldn't believe one of the men because of what another had said. This led to a situation of a double standard on a double standard. This happened throughout the case because there was not a clear account in the contemporaneous material and the reason there wasn't a clear account was because one was not provided. 444 In the contemporaneous material there was nothing sufficient for a finding that the men were drinking. The real detail didn't come out until after they saw the statements of the Applicants in these proceedings and sat down and made their witness statements. It was the problem at the Respondent ran into because of the way it conducted the investigation. 445 In relation to remedy Mr Slevin rejected the submissions of the Respondent pointing out that s.89 provided that the Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. Reinstatement was sought and it was the primary remedy under the Act. It was the appropriate remedy in circumstances where misconduct was alleged and not proven. Re-employment to similar positions elsewhere was not sought.

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446 I have very carefully considered the transcript, the evidence filed (including the Exhibits) and the very detailed and helpful submissions of Counsel in this matter. 447 In citing the various authorities that are relevant to my consideration I do not propose to quote in full the relevant passages. The authorities upon which I am required to rely are very well known and have been applied in numerous decisions of this Commission. 448 I also do not intend to deal with each and every evidentiary or credit challenge raised by each side against the other but to concentrate on those issues I have considered crucial to determining the outcome of the applications made in these matters. 449 There is no doubt that this has been an exceptionally difficult case to determine because essentially it boils down to the four employees' word against that of Mr McNally and Mr Coles in circumstances where criticisms can be raised about the evidence of both sides. 450 The only corroborative material available concerning the actual events during that crucial one hour period on 16 October are the various mobile phone records and the two contemporaneous diary notes of the two Managers. However in my view there are some fundamental differences between those two diary notes. More crucially however, there are fundamental omissions from those diary notes. 451 I have to say that throughout the extensive and repeated consideration that has been necessary of the transcript, the various witness statements, the various Exhibits and submissions, that the metaphorical scales upon which all the evidence for each side has been placed have tended to tip from one side to the other repeatedly. Coming to a final determination on just which way the scales should settle has by no means been an easy or straightforward process. 452 The parties have rightly identified the requisite standard of proof to be applied as that established in Briginshaw v Briginshaw, as further explained in Neat Holdings, and as consistently applied in unfair dismissal cases before this Commission. That being the civil standard of the balance of probabilities. 453 The Full Bench in New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007} NSWIRComm 164 considered the intertwined issues of both who bears the evidentiary onus and the standard to be applied to that onus. 454 In Prior, after upholding the "well established principle" that the evidentiary burden in a case of serious misconduct shifted to the respondent employer as set out in the line of authorities that commence with Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 through an unbroken line of authorities to Budlong v NCR Australia [2006] NSWIRComm 288, the Full Bench went on to state: 13 Although it must be accepted that the respondent carries the onus to be discharged according to the ordinary civil onus, on the balance of probabilities, the very nature of the issues involved and the consequences of a decision to summarily dismiss an employee, required the respondent to make out its case in a convincing way. It has long been established that the dicta laid out in the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336, should apply. 455 The Full Bench went on to cite Neat Holdings, which is also relied on by both parties but with differing emphasis as to the strength of evidence required to discharge the requisite onus.

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456 I agree with Mr Slevin, that the allegation in these matters is not just of "drinking beer at lunchtime on a hot day" as categorised by Mr Taylor with the behaviour not being such that the Commission "would be slow to assume that the individuals would engage in". The allegation is that three Sydney Water employees, two of whom held responsible supervisory positions, were knowingly drinking beer, contrary to strict Sydney Water policy while a fourth Sydney Water employee, who also held a responsible supervisory position, observed such conduct and took no action whatsoever to prevent it and with all four employees intending to return to work in their Sydney Water vehicles. 457 Mr Francis and Mr Wotton were Team Leaders at their particular level of classification. Mr Meredith was an Acting Field Supervisor. All four employees fully understood and accepted Sydney Water's zero alcohol policy. All four employees clearly indicated they were intending to resume normal work (doing the fire runs) after the barbecue lunch which would have involved at least two, if not three, Sydney Water vehicles being driven to carry out that work, not to mention any subsequent travel to their respective homes in those Sydney Water vehicles. 458 The conduct alleged was very serious with termination the highly likely consequence if it were to be established that such conduct did in fact take place. Further it was conduct that clearly could not be said to fall within any customary practice either generally engaged in by Sydney Water employees, such as customarily or even on occasion having lunch in a club or hotel as might occur amongst workers in some other industries, or condoned by the employer, such as having a drink at the workplace at the end of the working week. 459 Whilst I accept that in ordinary circumstances it is unlikely that four typically average "Aussie blokes", (as I readily observed these four men to be), having a barbecue lunch in one of the group's backyard on a hot windy day, would not avail themselves of cold VBs that were readily accessible in the fridge, these were not ordinary circumstances. 460 It was a work day, "Super Tuesday" in fact with the work hours extended to 6 p.m. The men intended to carry out further work which involved driving Sydney Water vehicles. There was a clearly understood and accepted policy prohibition on drinking in such circumstances. The responsible positions that three of the men held have already been referred to above. Further, Mr Francis was an active ASU Delegate who, it is not unreasonable to assume, would have had a greater appreciation of the consequences of such misconduct than the average Sydney Water employee. Further all four men had unblemished work records. 461 That requires, as Mr Slevin submitted, that the Commission consider the seriousness of the allegations and the seriousness of the consequences in applying the balance of probabilities standard. As Dixon J stated in Briginshaw at 362: "..... It is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal but reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, "reasonable satisfaction" should not be produced by in exact approved this, indefinite testimony or indirect inferences." 462 Whilst it is clear that this case is about onus and whether Sydney Water has established, to the Commission's satisfaction, that the men were drinking alcohol and did therefore commit serious misconduct, coming to a conclusion about whether that onus has been discharged is also inextricably bound up with issues of the credit of witnesses and the credibility of the evidence of both sides not merely whether there is sufficient evidence of the misconduct alleged. Given how diametrically opposed the accounts are of what happened on 16 October, it ultimately comes down to whether the Commission believes one side in preference to the other and any basis for that belief. 463 Generally in misconduct cases however, even if it is established that misconduct did occur, the Commission must also consider whether termination in the circumstances was too harsh a penalty per Byrne & Frew v Australian Airlines (1995) 61 IR 32. Likewise the Commission must also consider whether the termination was harsh or unjust or unreasonable per s88 of the Act. Here however, the onus moves back to the Applicants per Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273. 464 Although I have to say that that if it was to be held that the misconduct alleged in these matters had occurred, there would have to be very compelling reasons to support any finding that termination was a penalty that was too harsh, or unjust or unreasonable given the overall circumstances.

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467 The issue of the consequences for an applicant of such a decision, the need for that to be considered by the Commission and for employers to be fully satisfied that misconduct has taken place is dealt with by the Full Bench in Franklins Ltd v Webb (1996) 72 IR 257 at p.261 and also by Sams DP in Hill v Department of Juvenile Justice (2000) NSWIRComm128 at paras 62-63. 468 The evidence and the credibility of the Applicants has been challenged on the basis that their witness statements are identical in key respects, that they have memorised their evidence and therefore have no real independent recollection of the events and key conversations in question. More fundamentally however their evidence has been challenged on the basis that they have deliberately all come up with the same story and therefore lied to this Commission and to Sydney Water during the investigative process. 469 In considering both the evidence before the Commission about what occurred on the 16 October at 56 Caldarra Ave and the credibility of the witnesses' accounts of those events there are only two alternatives that can be reached. 470 I do not consider that the "third way" Mr Slevin submits I can follow by applying Timms, of finding that Sydney Water has not satisfied the onus it bears, is all I need to do. If only it were that simple. It is inescapable that I must consider and make a finding as which of those two alternatives set out below has been established by the evidence before me. 471 The first of the alternatives is that the four men have consistently lied to both the Sydney Water investigative team and to this Commission. Mr Francis, Mr Wotton, and Mr Mansfield were drinking alcohol that day and Mr Meredith took no action to stop them. Mr Wotton and Mr Meredith did admit to this drinking of alcohol to Mr McNally and Mr Coles who have accurately recorded and related what occurred that day. 472 The second of the alternatives is that all four men have consistently told the truth. They were not drinking alcohol on that day. They made no admissions of drinking alcohol and refuted that claim on the day (albeit not in an assertive or extensive way) and in the circumstances of how events unfolded they had no opportunity to properly explain the circumstances nor were they afforded such opportunity by Mr McNally and Mr Coles. 473 This second alternative would mean that Mr McNally and Mr Coles did not see anything other than circumstantial evidence that there was beer on the premises. Mr McNally made no attempt to properly establish what had in fact taken place. However this would inevitably also mean that Mr McNally had lied in his contemporaneous diary note about Mr Wotton's admission and both men had lied to the investigative team. It would also mean that both men had in fact not merely "embellished" and "exaggerated" their initial accounts and what they subsequently told the investigative team but had in fact lied to this Commission in order to create facts which clearly established that drinking had taken place on 16 October and that the four men committed the misconduct alleged. 474 I would not expect the ASU (or any other union for that matter) to come to this Commission knowing that their members had in fact committed the misconduct alleged and had lied about that, yet seek orders in favour of their members. Nor would I expect either the ASU (or any other union) to continue that falsehood merely on the basis that there was only circumstantial evidence to support the allegations made. 475 It follows that if the men did lie about the fact that they were drinking beer on 16 October to both the investigative team and then to this Commission then they have also lied to their Union, the ASU. I note in this regard however the evidence of Mr Meredith about the meeting which he said the men had with Mr Campise on 17 October where they went through the events of the day, they were told what they had to go through and "Peter wanted to make sure that, yes, nobody was drinking, yes." 476 I make it clear at the outset that the conclusion I have arrived at in these matters after extensive consideration of the evidence and the issues raised by both sides is that the men have consistently told the truth. They were not drinking beer that day. They did not commit misconduct warranting either termination or demotion. 477 In arriving at that conclusion I have been very mindful of the standard to be applied in cases of this nature, as outlined above, given gravity of the conduct alleged and the consequences arising. However for reasons I propose to now traverse I have not been able to find that on the balance of probabilities that the men were drinking beer on that day. 478 Indeed I find it equally improbable that Mr Wotton, given the position he held and his unblemished record, would, when confronted and challenged by a Sydney Water Manager suddenly appearing out of the blue in his backyard, actually hold up a VB stubby, shake it and brazenly say "we've only had a couple". That has stuck in my mind throughout these proceedings as so improbable and unlikely as to be simply beyond belief. 479 The two major issues of credit raised against the Applicants' evidence are that the accounts of the four men and Mrs Wotton are identical in recounting certain events/conversations (strongly suggesting collusion) and that they had memorised their evidence and therefore had no independent recollection of those events/conversations. 480 It is unfortunate that the ASU did not advise the men right back at the beginning of the process (that is on 16/17 October) to make their own individual notes of what had happened for later use and reference. Once formal notification of the allegations and proposed disciplinary interviews had been conveyed to the men that could have become another flashing neon sign that the men needed to prepare a considered response in the circumstances that were unfolding and indeed make notes while the events were still fresh in their minds. 481 Mr Campise also unfortunately kept no notes during the entire process and his recollection of events (the interview process) is less clear and therefore less reliable as a result. 482 I have to say that in relation to the issues of the affidavits and the witness statements generally, that in all the arbitrated cases that have proceeded before me, it has been my observation that the only statements that I have ever been confident were in the witnesses' own words were those of unrepresented applicants/respondents. There have also been some instances where a represented applicant/respondent has obviously prepared an initial witness statement (replete with hearsay material, irrelevancies and their own idiosyncratic idiom and language) yet any subsequent statement has been in altogether different language and format as it has been prepared by their advocate.

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483 As far as the affidavits or witness statements prepared by represented applicants/respondents are concerned, usually any direct quoting of relevant conversations is as the witness generally recollected. However the narrative of any background and events is invariably in a style of language and a turn of phrase that is not the usual conversational style of the person concerned and they would not themselves have written their statement in that manner. Essentially what they relate (both as to information volunteered and information solicited from questioning) is transcribed into a standard format and language. I have invariably found this to be case particularly as regards the witness statements prepared by solicitors and/or legal officers. I hasten to add that as a general rule I see no problem with that process. 484 In relation to the four Applicants there is no indication of which of the men was the first to be interviewed at the ASU and have his statement typed up. This first statement appears to have formed "the template" for those statements that followed. Mr Wotton was the only one to say he did some writing as well as telling the ASU Official who typed the statement. Given that all four men were involved in the events of 16 October it is understandable that there would in fact be a strong similarity in their accounts. They were all present, firstly at the job site working on the scour valve, and subsequently in the backyard of 56 Caldarra Ave. Each of them, of course, had differing involvement in events leading up to the afternoon of 16 October and that is certainly reflected in the statements although the style of language is the same. 485 It does not seem to me to be unusual or unreasonable that the ASU official charged with the responsibility of interviewing and preparing such statements would of necessity gather together the information supplied and put it in a coherent, logical and sequential format. However in doing that, it is impossible to ascertain to what extent prompting or duplication has arisen as a consequence of that process rather than as a consequence of the men starting out with the identical elements before they commence the process with the ASU, or whether the resulting statements are a consequence of a combination of those two processes. It seems fairly obvious that in some instances what is recounted would not have been the sort of language used by the individual concerned, for example what Mr Wotton is purported to have said to Mr Petterson in the phone call of the 30 October about mitigating circumstances. I just cannot imagine Mr Wotton speaking that way, having observed him in the witness box. What Mr Petterson has related is far more likely to be Mr Wotton's style of speaking. The old fashioned expression is "gilding the lily". 486 Criticisms such as the same punctuation being used cannot be the fault of the men, that arises from the person actually typing the document. 487 However I do not consider that the repetition that is found in the accounts of the disputed conversations between the men and the Managers can only be attributed to either duplication by the ASU official concerned or the men deliberately deciding to tell the same story (or a combination of those two causes). 488 As far as the first verbal exchange between Mr Wotton and Mr McNally is concerned I agree with Mr Slevin that the most likely (and credible) explanation for all accounts being the same is the simple explanation that that was in fact what was actually said and what actually happened. 489 I do not find it improbable that an event or a short conversation (or conversations) can be remembered by five persons present where the circumstances surrounding the conversation(s) are so striking, unexpected and out of the ordinary that what is said and occurs, in fact, registers overwhelmingly in the memory of those present and that that memory is retained. Indeed I find it extremely possible and indeed probable that an event/conversation of sufficient import/significance occurring in extraordinary circumstances such as the events of 16 October at 56 Caldarra Avenue could in fact be remembered in identical terms. 490 The four men and Mrs Wotton have been nothing if not consistent throughout, in both their dealings with Sydney Water's investigative team, and their evidence (both written and oral) to this Commission. 491 I have to say that in my view, in contrast, the same cannot be said for the accounts and the evidence of the two Managers. This will be dealt with shortly. 492 Mr Slevin and Mr Taylor have taken the Commission in considerable and specific detail to the differences/inconsistencies within the evidence of the witnesses in support of their respective positions, Mr Taylor extensively so. Because of that detail and the issues of credit that have been raised the submissions made have been more extensively canvassed in this decision than would normally be the case. 493 However I do not propose to respond to each and every difference/inconsistency put forward by each advocate. I intend only to deal with the relevant issues and evidence that have led me to arrive at the views I have formed and the inescapable conclusion I have reached in these matters. That does not mean that an issue/contention/point raised by one side or another has not been considered. It has -- it may simply not have been of sufficient significance or weight to warrant specific reference. 494 The major and significant issues that have been raised against the Applicants as establishing that the misconduct alleged took place can be listed as follows: Their witness statements and evidence are identical in significant respects (dealt with above); They pre-planned to have a barbeque lunch and drink beer; with the linked issues of : the Job Card (Exhibit 35 - CM2). the Parramatta rope, the break truck, lunch at 56 Caldarra Ave rather than at Heathcote Depot, Mr Francis not offering to buy drinks, no drinks offered by either Mr or Mrs Wotton, the clearing up of the bottles in the blue plastic bag; The complaint; The admissions made by Mr Wotton and Mr Meredith; with the linked issues of: the contemporaneous diary notes; the accounts of the Managers; Alcohol smelt on Mr Francis and Mr Wotton Moving the trucks; The men did not speak up to explain the situation; No motive for Managers to lie/motive for Applicants Pre-planning to have a barbeque lunch 495 Based on the evidence, there is no doubt at all that on the 15 October 2007, Mr Francis and Mr Meredith carried out the requisite assessment of a job to be completed in accordance with a duly issued Sydney Water Job Card to a scour valve located off the Woronora River and near the Woronora Creek which was accessed from the Mount Carmel gate. 496 There is no evidence to contradict the evidence of Mr Wotton and his wife (together with that of Mr Nightingale and Mr Dawson) that they held a barbecue at their house after work on the evening of Monday 15 October. 497 There is no issue that Mr Wotton and Mr Mansfield were on annual leave prior to 15 October. There is also no contest that there was an ASU meeting at the Matraville Depot on the morning of the 16 October that was attended by all four men. 498 Mr Mansfield had worked the previous three months as part of the sewer crew at the Miranda Depot. The only reason he ended up being present at the events of the 16 October was that he sought a lift to the ASU meeting with Mr Wotton (which was approved by Mr Stephenson) and was then told by Mr Wotton that he would remain with him for the rest of the day otherwise he would normally have worked that day with the sewer crew just as he had done the day before. 499 The significance of this will be addressed further. 500 Contrary to what was sought to be suggested by Mr Stephenson, I do not consider, based on the evidence and Mr Stephenson's cross examination, that Mr Wotton put himself forward as assisting Mr Francis in the work to be performed that day and in so doing that that is somehow evidence of some pre-planning to have a barbecue lunch and drink beer. 501 Mr Francis sought assistance to do the work. The pipeline truck would have been needed to convey any workers allocated to the worksite due to access difficulties, that came out in the evidence. Mr Wotton was the only one of the four to have the requisite HR licence to drive that vehicle. There was no evidence as to any alternative employees that could have or should have been allocated to the work in preference to Mr Wotton (and Mr Mansfield who was to stay with him for the day). There was also no issue raised about Mr Mansfield remaining with Mr Wotton. If he had not sought a lift to the ASU meeting that morning he would have worked, as normal, with the sewer crew. There is no way of knowing whether in that event Mr Francis would have needed additional assistance over and above Mr Wotton. 502 That teaming up of Mr Wotton also seems to have suited Mr Stephenson who then allocated the outstanding fire run work to Mr Wotton to do in the afternoon. That would seem to indicate to me that Mr Stephenson in fact had an expectation that at least Mr Wotton and Mr Mansfield would stay out in the field to complete such work. There was no specific question directed at Mr Stephenson in this regard but I consider it to be a logical conclusion I am entitled to make. 503 Based on my years of dealing with matters concerning the various unions and Sydney Water it has not been my experience that fixed estimates of how much time will be required for jobs is carried out. In my experience what happens, and what is expected, is that the men/crew allocated will carry out a particular job/task taking whatever amount of time is necessary to complete the job/task properly. 504 I note that the Sydney Water Job Card requires that various information, as to the times of travel to site, arrival on site and finishing on site, be completed. Clearly this could only be done after the job/task has in fact been completed, it could not be otherwise, given the varied nature and circumstances of the jobs/tasks that any Sydney Water employee could be called upon to perform. 505 I do not consider it unusual that Mr Francis had not made any estimation of what time would be necessary for completion of the requisite work on the 16 October. It would be whatever time the job would take to complete, which obviously would also depend on the number of employees carrying out the job and the conditions under which the job was to be performed. The Job Card (Exhibit 35 - CM2)

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506 As to the issue of the Job Card attached to Mr McNally's witness statement (Exhibit 35 -CM2) I note that Mr Warren Wood was not called to give evidence. This Job Card was a totally incorrect one and I would have thought even a casual examination would have picked up the wrong date and job specification. I also note that there is no evidence that Mr McNally raised this Job Card with the investigative team. It is not mentioned at all in the Disciplinary Report nor was Mr Francis questioned about it in his interview yet it conveniently pops up attached to Mr McNally's witness statement. That raises doubts with me about just who was responsible for providing the information that Mr Wood is alleged to have completed. 507 I accept Mr Francis' evidence in relation to this issue. In my view it can be taken no further and does not assist the respondent. 508 There is no doubt that the requisite work as per the relevant Job Card (Exhibit 7) was in fact carried out on 16 October. 509 Although I have to say that it is clear from the Disciplinary Report prepared by Mr Hutchinson that there were doubts harboured by Sydney Water about that and negative comments made about what was necessary to be done (whether rope was in fact required). While Mr Hutchinson also indicates that the issue of the rope and the work carried out (and access for vehicles at the Mt Carmel gate) were not taken into account in arriving at their conclusions because the men did not rely on these issues to justify going to the house, it nevertheless is indicative of the negative way Sydney Water viewed the men all the way through the process. This issue will be further addressed below. 510 The photographs of the work reported to have been taken by Mr Stephenson were not produced in evidence. Mr Meredith was asked questions about the work carried out, what materials were required etc., and he explained what needed to be done. The men were not further challenged or queried about their performance of the work either in the disciplinary interviews or during their evidence. The Parramatta Rope

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511 As far as the rope is concerned I have no doubt that the term "Parramatta rope" was not in fact used, either by Mr Mansfield when he went to the store looking for rope on the 16 October, or by the men during the course of the disciplinary interviews. Mr Francis acknowledged that it was a term used at his current employment, Wallis Constructions, and although he did say he would have used that term at the Miranda Depot it was not a term in common use there. This appears to be a usage that has subsequently arisen amongst the men and possibly as a consequence their subsequent discussions about "the events of the day" and of the interview/statement preparation process. This is clearly an example of Mr Mansfield's recollection being faulty (there were other instances that could be similarly attributed to Mr Mansfield) however I do not consider that to be a sufficient reason in all the circumstances to undermine Mr Mansfield's credit or negate the value of his evidence. 512 I have considered this in my consideration of the credit of the Applicants' evidence generally. Whilst I readily concede that it can be held against the applicants, just as can Mrs Wotton's inability to remember or recall certain events of the afternoon, the overall credit balance weighs far more heavily against the two Managers when their evidence is considered as I will deal with below. 513 Mr Paul Wood, who was in charge of the store, deposed that he could not "recall" Mr Mansfield visiting the store as he had numerous employees visiting the store during any day and could rarely remember each person unless something stood out. This is understandable and quite reasonable. This leaves the evidence of Mr Francis that he sent Mr Mansfield to obtain rope and of Mr Mansfield that he visited the store seeking rope to stand, with Mr Wood unable to recall whether that did or did not happen. He did recall Mr Wotton coming to the store. Mr Wotton said he was restocking his break truck which had been used by another employee whilst he was on his annual leave, there is no evidence to contradict this. 514 As I observed earlier in this decision there was unfortunately no evidence at all as to what might have happened to the specific piece of rope used on the 16 October. 515 At the disciplinary interviews on the 23 October Mr Mansfield was interviewed first and he raised the issue of needing rope to "lower the boards" and the reasons they went to Mr Wotton's house concerning the rope. Mr Meredith was interviewed next and was asked (with no mention of rope by the interviewers) "how did you get the gear down to the site" and he responded that they "lowered the boards down with the rope and slid some equipment down". His comment that 'the access was shocking' was also noted. Mr Wotton also referred to "Ross" telling him there was no rope and when queried whether he approached his Logistics Officer for rope responded, "No, Ross was looking after that". There was very brief reference to the rope issue by Mr Francis although I have to say his comment about knowing there would be no rope in the store (in evidence he said they hadn't had any for years) was puzzling unless it was a reference to thick gauge rope. This was not explored further in evidence. 516 The evidence about the rope seems entirely possible and probable to me. Frankly the evidence about unravelling five strand rope to obtain thinner rope seems a somewhat impractical solution. When stranded rope is unravelled, in my practical experience, the strands remaining kinked up, as it were, and it is somewhat awkward to use. In any event there being no evidence to contradict what the men have said I accept their evidence that rope was required, obtained and used in the manner described. The break truck

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520 There is no doubt that the men took longer for lunch than was permitted. That was acknowledged by the men. Mr Meredith as Acting Field Supervisor bears ultimate responsibility for ensuring that the normal time for lunch was observed. This may have resulted in Sydney Water taking some form of disciplinary action in relation to the four men when considered in isolation to the allegations of drinking alcohol. 521 After completing the work it was Mr Wotton's suggestion that the men return to his house for a barbecue lunch. There is just no evidence to support that this was pre-planned in any way. I accept the explanation of the men in this regard. I also hardly think that if there had been such pre-planning it would have gone ahead when a new and unexpected element was introduced into the equation in the person of Mr Mansfield who did not normally work with either Mr Francis, Mr Wotton or Mr Meredith. He had only worked with Mr Wotton as a new starter when he commenced in October 2006. There was no evidence as to the extent of his relationship with any of the three men outside of work hours. 522 The men also considered that returning to Mr Wotton's house was preferable to travelling to either the Heathcote or Miranda Depots to have lunch. 523 The Miranda Depot was clearly much further away in terms of distance and travel time and would have required Mr Wotton and Mr Mansfield to double back and retrace their steps back to Engadine where the fire run tasks were located (as set out in Exhibit 10a). Neither Mr Meredith nor Mr Francis had work allocated for that afternoon and the manner in which they had work allocated did not appear to require that they return to the Miranda Depot to obtain further work that could be done by phone. In any event it appears that during lunch a decision was made by Mr Meredith that Mr Francis also participate in the fire run work. Mr Francis was being trained in the E- Developer role. 524 I have also kept in mind that the day was "Super Tuesday" and the men were not due to finish work until 6 p.m. that evening, they had not taken a break before commencing work and it would not have made sense to do so after returning from the Matraville Depot and prior to going to the jobsite given the time of day. 525 There was no issue taken with the fact that it is Sydney Water policy for employees to take their lunch break in the field rather than return to a Depot in order to more productively use the work time available. However if Sydney Water considers that it is inappropriate for employees to take their lunch break at their place of residence (either on their own or with other employees) then it should clearly indicate this to all employees particularly where employees might be working in areas that take them close to their homes. 526 That Mr Mansfield may on occasion have spent up to 45 minutes to return to the Depot whilst he was with the sewer crew is in no way at all relevant. My knowledge and experience of the sewer work referred to in Sydney Water matters that have been listed before me is that it can be unpleasant, dirty and noxious work. Men take however long is necessary to complete the work required and then understandably return to their Depot to clean up and then partake of their lunch. I would not have thought it normal practice for sewer crews to do otherwise. That was supported, to my recollection, by the oral evidence of Mr Mansfield (unfortunately there were some words in his evidence that were noted as not transcribable) "............ very dirty issue by way of putting it". Crews can also be required to work outside their boundaries which may involve greater distances and time taken to return to their Depot in such circumstances. 527 I have given consideration to the evidence of the men (especially Mr Francis and Mr Wotton) as well the relevant UBD street maps (my 2002 Edition) showing 56 Caldarra Ave, the Mt Carmel gate point and the Heathcote Depot which is located at 35 Bottle Forest Road, Heathcote (as listed on Exhibit 18). 528 56 Caldarra Ave (which is close to Porter Avenue) appears on Map 331 at grid reference K15 (at about 15.5). The Mt Carmel gate point is also on Map 331 at E12. However the Heathcote Depot is on the adjoining Map 351 at grid reference J-K 10 (depending on which way the street numbering runs). 529 The two maps show that there are at least three sets of lights to be passed through when travelling from the Mt Carmel gate along Woronora Road and then the Princes Highway before turning off left over the railway overpass and hence left to Bottle Forest Road, Heathcote. The last set of lights is at the major intersection of the Princes Highway and Heathcote Road (and the overpass) which to my knowledge is a very busy intersection.

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535 Similarly I do not consider that the fact that Mr Francis did not offer to buy drinks and that neither Mr Wotton nor Mrs Wotton offered drinks is somehow evidence of, or supports, the fact that the men planned to drink beer or did drink beer. 536 The men were all used to a variety of arrangements in relation to providing for their own lunch and drinks (and with the exception of Mr Mansfield had the hot and cold containers in their vehicles). I therefore do not see anything particularly exceptional in Mr Francis not also offering to buy drinks. I would have thought it more logical for anyone wanting a drink purchased to speak up. Mr Wotton would have known he had access to water and soft drink at his home. Mr Francis was a friend and had been to his house for barbecues before so would surely have been comfortable with knowing he could access water when he got there. Indeed he said he did help himself to water from the kitchen fridge and to the Bundaberg Ginger beer. Mr Meredith had his own drink. 537 Mr Mansfield was the odd man out here. I acknowledge that it was unusual for Mr Mansfield not to have a drink the entire time he was at Mr Wotton's house. However he was with employees he did not normally work with and following instructions for the day, in those circumstances of going to someone's home, I would not have expected him to just barge in and help himself although I must admit it seems strange that he did not speak out and ask for a drink. This may have arisen from a lack of confidence in being in the company of employees with whom he was not accustomed to work. He was not asked to explain this at any time either in the disciplinary interview (indeed he wasn't asked what he was drinking if he was not drinking beer) or during cross examination. 538 Mr Wotton appears to have been intent on preparing the barbeque. In the absence of any express invitation the men present were quite capable of asking for an appropriate drink (water or soft drink) or helping themselves. Mrs Wotton arrived home after the barbeque had commenced. It was the men's barbeque. I fail to see that she should have had a role in offering drinks in any event by that stage. 539 People attending a barbeque generally bring their own drinks or help themselves to whatever is readily available. That does not mean that just because there was beer in Mr Wotton's laundry fridge it can be assumed that Mr Francis, Mr Wotton and Mr Mansfield would have automatically accessed those beers. Clearing up of the bottles - the blue plastic bag

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540 Mr Taylor also queried that it had been possible for Mrs Wotton to collect the empty beer bottles the men say were scattered around the barbecue area and the backyard in a blue plastic shopping bag and that somehow that confirms that there were only the bottles consumed by the men in the area and that were intended to be picked up because only a blue plastic shopping bag was used for that purpose rather than a larger bag. 541 Mrs Wotton deposed as to the amount of alcohol consumed at the barbecue the night before being some approximately 30 bottles out of the two slabs of VBs that Mr Wotton purchased for the evening with the evidence being those bottles were not cleared up but lying in various positions about the backyard and including the table area. 542 Firstly, I should observe that there was no evidence that Mrs Wotton had in fact completed that task. She referred to "started/starting to clean up" in both her witness statements (contrary to what Mr Taylor submits is her written evidence) and her oral evidence did not clarify whether or not she had completed that task. 543 Secondly, I have conducted a practical exercise using a Coles blue plastic shopping bag and with the assistance of a male relative and a neighbour (who contributed the empty stubby bottles) was able to fill it with some 19 empty stubbies (Carlton Draught, Melbourne Bitter and Reschs - VB not being the brew of choice of my assistants). I was still able to comfortably put my hands through the handle spaces and could possibly have fitted in another one or two bottles, but without the ease of carrying that load, and was able to walk some 150 metres from my neighbour's property around to my recycling bin to deposit said bottles. I appreciate that there are some differences between the relative sizes of a VB stubby and the brands listed above, (mainly the length of the neck) but I have undertaken both a visual and manual comparison of those bottles at my local bottle shop and I don't consider there would have been a vast difference (maybe one or two less given the slightly larger size in girth of the VB but this may have been counterbalanced by the longer necks of the other brands) if I had in fact used empty VB bottles. 544 Having carried out that exercise I am satisfied that Mrs Wotton would have been able to pick up well over a dozen bottles in such a cleaning up exercise which would suggest that there were in fact a number of empty bottles located in the backyard left over from the barbeque the night before consistent with the evidence given by Mr and Mrs Wotton and the evidence of the other three men as to seeing such bottles lying around. 545 All four men referred to bottles already being in the backyard during the disciplinary interviews indeed Mr Mansfield very specifically said there were two bottles already under the chair he sat in. Nothing was subsequently raised with the other three men to either confirm or contradict this. 546 As far as the barbeque is concerned there would not have been any items on the table normally associated with a barbeque or meal such as plates, utensils etc., as thought significant by Mr Pavlovec and the subject of specific questioning by him of Mr McNally. These were working men who had sausages in bread rolls. The only evidence as to items used were the bowl with the onions (and the empty bowl was taken back inside the house) and the barbeque utensils (and the cleaning of the barbeque). I can't imagine them going to the trouble of plates etc. and in any event by the stage Mr McNally and Mr Coles had arrived it was the mens' evidence that the barbeque had been finished and the fire run work had been discussed. There would not have been any evidence of the barbeque remaining at that stage.

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547 In moving to consider the complaint, there can be no doubt that an anonymous complaint was made to the Sydney Water Call Centre that was passed on to Mr Stephenson to respond to at 3.00 p.m. that day. However at no stage was there any subsequent follow-up interview with the person making the complaint. Indeed Sydney Water never ascertained the name and address of the complainant even though there was a second call made to Mr Stephenson by that person. 548 In my experience organisations who have employees coming into contact with members of the public or working in public areas (e.g. local government) where phone complaints may be made against employees generally bring the issue to the employee's attention but also generally seek to have any complaint put in writing if it is of a more serious nature or is sought to be taken further by the complainant. 549 The complaint that was made alleged that this had "been going on all the time, this drinking from midday, one o'clock until five or six in the afternoon." One has to wonder whether the barbeque the evening before has any relevance or connection. Mr Hutchinson, in his 17 October notes of the management meeting, listed as a possible action to be taken, that of ascertaining if "neighbour's statement of frequency is true." There does not appear, from his subsequent Disciplinary Report, to have been any such action taken (none is reported). 550 The complaint only mentions three trucks "parked at an angle" (which was clearly incorrect) when there were in fact four parked at the address. If four trucks could not be seen, I wonder how close in fact a neighbour this was and in which case just what could have been heard. 551 As I indicated above whilst it is beyond doubt that a complaint was made what does concern me is that there is no subsequent testing of the voracity of that complaint particularly when Mr Wotton has indicated he had had problems with that neighbour (which would suggest he had a fair idea of who made the complaint). Yet it has formed the background and the basis for the swift action taken by the Managers. 552 I do not cavil with Sydney Water taking a complaint from a member of the public seriously and sending someone out promptly to check out the situation to ensure that vehicles were not driven if alcohol had been consumed. That was a proper and appropriate response. However I agree with Mr Slevin that what followed was a "Starsky and Hutch" type exercise with Mr McNally rushing in and jumping to conclusions very much influenced by the complaint made and the necessity of being seen to be doing something about the complaint. 553 It seems to me that the issue of the complaint then colours and influences all that follows, yet it is never properly checked out and verified at the source - the complainant. 554 I also wonder why no attempt was made, if not before Mr McNally and Mr Coles left, then certainly whilst they were travelling there, to establish who could be at the address. There were, on the evidence, a variety of ways from the systems in place that this could be done. In any event Mr Stephenson was aware of just which employees vehicles were allocated to and where the work was being carried out, that was after all his role. He seemed sure they had no contractors in the area. In any event as soon as Mr McNally arrived and told him the pipeline truck was there he could have told Mr McNally even before he went up the driveway who he was likely to find. 555 Whilst it all seems a bit strange, (especially Mr McNally's evidence about his knowledge of Mr Wotton's address), if there was anything set up, which was really what Mr Slevin and the ASU were getting at in a very roundabout way, then the complaint would have had to be part of it and also possibly Mr Meredith and there is just no evidence of this. 556 Although I do have to say I have had some feeling of disquiet about this entire case. I note that both Mr Francis and Mr Wotton raised issues they felt may have been held against them by Mr McNally and Mr Coles. These issues were essentially rejected by Mr McNally and Mr Coles. They were not taken much further in cross examination and not raised in the ASU's submissions. 557 I have wondered why Mr Meredith was not also terminated. Mr Petterson said that if he had allowed the men to drive their vehicles he would have been and acknowledged that there was some "hair splitting" in that decision. 558 However Mr Meredith was an Acting Field Supervisor. It was part of his normal responsibility to ensure that the men carried out their work in an appropriate manner and conducted themselves in accordance with Sydney Water policies. If they had been drinking beer, then as soon as he became aware that this was their intention, he should have taken action to stop it. If they were not prepared to refrain from such action then he had an obligation to report them and he could have removed himself from the site. He held an even greater responsibility to do the right thing when compared to the other three men. Any failure in that regard I would have thought could in fact have been viewed just as seriously if not more seriously that the allegations that the men were drinking beer. If it happened, he allowed it to happen and took no action to prevent it. 559 Mr Stephenson called Mr Meredith by phone at 13.31 p.m. on the 16 October. He would have been down at the jobsite at that time. This came out during Mr Stephenson's evidence as a result of it being ascertained, just prior to him giving evidence, that he had had the use of Grant Mason's mobile phone which then enabled an examination of his phone record from the rather large bundle of phone records subpoened from Sydney Water (Exhibit 54). This was why the issue of this call had not been put to Mr Meredith, as it was not known of at the time he gave evidence. It was only a short call - 1.02 secs. Mr Stephenson could recall no detail of the call. I do not suggest anything untoward about this call. It may in fact simply have provided some corroboration that the men were down at the jobsite at that time and finishing up the work that had been undertaken and what he may have intended to do that afternoon. The mobile phone photos

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560 When Mr McNally arrived at 56 Caldarra Avenue he took three photos of the parked Sydney Water vehicles with his mobile phone. This was before Mr Coles arrived. Mr Coles could have had no knowledge of those photos being taken. This can clearly be established by Mr McNally's mobile phone records and Mr Coles' evidence. Mr McNally rang Mr Coles at 15.28 pm. At that stage Mr Coles said he was still driving to the address and that he was still a couple of minutes away. The first two photos were taken at 15.29 p.m. (Exhibits 36a and 36b), the next at 15.30 p.m. (Exhibit 36c). Mr Coles put his arrival at about five minutes after Mr McNally (his diary notes) with Mr McNally out the front of the property (not arriving and getting out of his car at the same time as deposed by Mr McNally). Nothing appears to have been said to Mr Coles about taking photos. Mr Coles said he "didn't remember" Mr McNally taking the photos. 561 I do not believe, based on the evidence of the mobile phone records (and Mr Coles' statement) that he was present when those first photos were taken. This is but one example of Mr Coles not being prepared to give evidence that did not support Mr McNally. It would have been very simple for him to have said that "Mr McNally didn't take any photos when I arrived". This tendency of Mr Coles will be further commented on below. 562 It begs the question of why Mr McNally didn't take photos of the men in the backyard, together with the evidence he says he saw that substantiated the allegation that they were drinking beer. The photo taken at 15.30 p.m. was clearly taken from the passenger side of Mr Francis' vehicle, just to left and slightly behind the side mirror. The photo shows Mr Meredith's vehicle parked directly in front pointing towards the back of the driveway and to the right can be seen at least the rear half of the break truck (which was parked at the back of the yard at a right angle to those two vehicles and facing the table). It does not seem unreasonable that if Mr McNally had simply turned more to his right and taken a further photo (or even moved forward by a step or two) he would have had the men in the backyard in his view. He did not do so. He also evidently had a voice recorder on his phone which he said he should have switched on when he went into the backyard but didn't. 563 There was no explanation given as to why he did not take such photos. I can understand that in the rush of the moment he did not subsequently seek to do this. However after the events of the afternoon had unfolded he took further photos of the vehicles once they were parked out on the road at 16.21 p.m. (Mr Francis' vehicle - Exhibit 36e) and at 16.22 p.m. (the break truck - Exhibit 36d). There was no explanation for the taking of these further photos.

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567 Turning to the events that then unfolded. I agree with Mr Slevin's summary of those events that took place between 3.30p.m. and approximately 4.30p.m. as follows: 1. The Managers arrived at the property and had a brief discussion. 2. The Managers moved to the backyard and Mr McNally spoke to the men. 3. The Managers then spoke to Mr Meredith separately. 4. The Managers moved to the front of the property and Mr McNally made some phone calls. 5. The Managers returned to the backyard and told the men that they were stood down. 6. The men then removed their belongings from the trucks and drove them onto the street. 7. Sydney Water employees then arrived and drove the trucks away. 568 I have carefully considered all the evidence concerning the competing versions of the exchanges of conversations that took place during the above events. 569 There is no doubt that the four men and Mrs Wottton have gone over the events of the day on many occasions, they each said as much. They made no notes of the exchanges of conversations that took place. That does as a consequence reduce the reliability of their independent recollection. Further in the disciplinary interviews the only words of conversation that were queried was Mr Wotton's alleged response to Mr McNally. 570 I have already dealt with my positive view as to the likelihood of those five persons being able to recall events/conversations in a similar if not identical manner due to the extraordinary circumstances that occurred that afternoon together with the procedures subsequently followed in relation to their witness statements. 571 However, similarly, the two Managers also discussed the events of the afternoon together in the meeting of the 17 October at the Matraville Depot and in their joint interview on the 25 October. Further there was evidence that Mr Coles made a 3 minute phone call to Mr McNally (Exhibit 56) before the meeting on the 17 October. He denied that it was following this phone call that he made the changes to his diary notes. 572 However clearly their independent recollection can also be queried. Mr Slevin is correct in that the first comprehensive account by the Managers is not made until their witness statements, which are of course made after they have seen the Applicants' statements. 573 Addressing and reconciling all of the differences between the opposing accounts is virtually impossible. It is for that reason that I have concentrated on what is the fundamental difference between the two accounts. Admissions made by Mr Wotton/diary notes/accounts of Managers

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574 The fundamental difference between the accounts of the four men and Mrs Wotton and that of the Managers is what Mr Wotton said in reply to Mr McNally's challenge about "how many beers have you had". The men and Mrs Wotton maintained that Mr Wotton said "my wife's having a beer" whereas both Managers in their evidence have him responding in similar wording of "we've only had a couple" (or "you know just a couple"). Both Managers also have him holding the beer in his hand while he is saying this, with Mr McNally having him hold it up and shake the bottle. 575 Both Mr McNally and Mr Coles have additional comments being made about not knowing how many beers have been drunk and not being able to drive the trucks but have they each have that occurring at differing stages of the events above. 576 It is clear from the evidence of the four men, Mrs Wotton and Mr Coles that after speaking to Mr Meredith, Mr McNally did not follow him back to backyard and tell Mr Wotton and the men about not being able to drive the trucks as he maintained he did. After speaking to Mr Meredith, Mr McNally and Mr Coles moved to the front of the property and phone calls were made to Mr Nisbet and Mr Stephenson. Mr Coles has this comment being made at the end of the initial exchange with Mr Wotton. 577 None of the men nor Mrs Wotton have these additional comments being said at this early stage with the four men only having the issue of not driving the trucks arising after Mr McNally and Mr Coles return from phoning Mr Nisbet and telling them they've been stood down. A comparison of the conversation as recalled by Mr Coles at the different stages (point 2 and point 5) where he has Mr Wotton protesting that they can't even drive their trucks and he wants them off his property would suggest to me that this was the point at which logically the issue of not driving the trucks is raised, when Mr McNally told them he wanted their keys, rather than at the first exchange as Mr Coles deposed. I consider that contrary to what the four men have in their statements, that Mr Wotton would have made such a protest about not being able to drive the trucks and Mr Francis would have told him to shut up as Mr Coles indicated. 578 Both Managers had in their diary notes that beer was on the table, Mr McNally had it as an "open beer adjacent to" Mr Wotton. That location of the beer continued to be maintained in their subsequent short statements of 22/23 October. The first mention of Mr Wotton having the beer in his hand and actually holding it up appears in their respective witness statements as filed. 579 I would have thought that, if in fact Mr Wotton was actually holding a beer rather that merely having a beer on the table adjacent to him, then this very significant detail would have been put in both Managers' diary notes or mentioned somewhere along the line to the investigative team. 580 It is also clear from the minutes of the disciplinary interviews that it was never put to Mr Wotton or the other three men that Mr Wotton had been actually holding a beer in his hand or that he held that beer up to display it. 581 What does appear in the diary notes is: Coles - "beer was located in the premises at the table" McNally - "Darren Wotton had open beer on table directly adjacent to him" 582 Mr McNally in particular is very specific about describing the position of the beer. That is why I consider that if Mr Wotton had actually been holding the beer, both men would have said so long before they made their witness statements. The fact that they didn't means in my view that Mr Wotton was not holding a beer in his hand, and therefore did not hold it up and shake it. 583 This is one of the issues that goes to the very heart of my views about the credit of the evidence of both Mr McNally and Mr Coles. 584 The other obvious issue that I have taken into account is the conflict about what Mr Wotton is alleged to have said to Mr McNally about only having "a couple" when considering the difference between what the two Managers have in their diary notes. 585 I find it impossible to believe that if such a startling admission had in fact been made by Mr Wotton, that Mr Coles would not have noted that in his diary. He specifically noted that "Christian asked how many beers had been consumed" and "they replied one". 586 His later evidence has Mr Francis "mumbled one" which is denied by Mr Francis. All the men and Mrs Wotton consistently gave evidence that the word "one" was said, but in the context of "my wife's having one." 587 In the disciplinary interviews they were all asked specifically about Darren replying "we have only had a couple". The minutes have both Mr Wotton and Mr Francis referring to the fact that Mr Wotton's wife was having a beer (Mr Wotton specifically mentioned "one"). Mr Meredith said "No, I didn't hear that" and Mr Mansfield said "I didn't hear anyone admit to drinking". I regard these answers as positive responses that there was no admission made by Mr Wotton or anyone else that anyone was drinking beer. This is quite contrary to the rather misleading comments attributed to those two men in the Disciplinary Report - "Jason Meredith and Ross Mansfield stated that they do not recall hearing Darren answer." 588 I do not consider that that summary accurately reflects what the men are reported to have said in the minutes which is to the detriment of their account of the events that day. 589 Mr Taylor has submitted (Exhibit 61) that an examination carried out by Sydney Water's Solicitors of what Mr Coles wrote underneath the whited out section of his diary supports that he had written "Vaughan" not "they". That was not the evidence before me however. Both sides had the opportunity of obtaining and presenting expert witness evidence about the whited out section. There was no such evidence to assist the Commission. It is reasonably obvious to me that when the page is held up the light that it does not look particularly "illegible and not neat" as Mr Coles maintained it was, and was the reason given for whiting it out and re-writing the entry. Which I have to say would have been not an inconsiderable task given the extent of the whited out section. 590 It certainly would have made some sense if indeed Mr Francis had "mumbled one" but in relation to Mrs Wotton being the only person to have a beer. However that was not Mr Francis' evidence and no-one else heard him speak. 591 That still leaves me in the position that I consider that if such a startling admission had been made by Mr Wotton, in the light of Mr Coles specifically addressing the issue of a reply to Mr McNally's question, Mr Coles would have noted something to that effect. Putting "one" in fact supports the account of the men and Mrs Wotton. 592 The fact that he didn't make any such note, coupled with the evidence of the men and Mrs Wotton, together with the "embellishments/exaggerations" referred to above about Mr Wotton holding the beer, lead me to the conclusion that Mr McNally has not been truthful in what he has written in his diary notes and his evidence. 593 True it is that Mr McNally has been consistent throughout in relation to that reply, and true it is that Mr Coles subsequently in his short statement and the interview on 25 October also refers to "a couple". 594 However I note that in relation to Mr Coles he indicated in cross examination that the short statement was prepared by someone else and he just signed it as being correct. It is not clear whether he had any involvement at all in its preparation before it was typed up. In the interview after Mr McNally was again queried about what Mr Wotton replied he said " yes I heard that too". 595 I have already commented on the issue of the reliability of the independent recollection of the two men. It goes further with Mr Coles however. I have come to the view that Mr Coles was just not prepared to say anything that contradicted the account given by Mr McNally and indeed in my view seemed anxious to appear to support Mr McNally's account. 596 I also have to say that in giving his evidence Mr Coles seemed to me to be overly anxious and defensive in his responses, he was certainly not comfortable. Whist that is not always unusual in a witness it struck me more in the case of Mr Coles, than is usual when observing the demeanour of a witness. 597 His conflicting evidence about whether or not he saw Mr Mansfield with a bottle between his legs typifies this unwillingness to give any evidence that directly contradicted Mr McNally. 598 Mr Coles made no specific mention in his diary notes about Mr Mansfield (apart from noting his presence). He told the investigative team that he did not see a bottle between Mr Mansfield's legs because his view of him was obscured. In his witness statement he said he did not "focus my attention on Mr Mansfield or see what, if anything, he was drinking." This was queried during cross examination on the basis that he had said that while standing behind Mr Francis, that he was close enough to see that "he was breathing hard, his chest just going up and down." He also observed the bottle under his singlet. 599 When pressed he agreed that he didn't see Mr Mansfield holding a beer. He also agreed that in his short statement it said he couldn't see whether Ross Mansfield had a bottle as "my view of him was blocked". When asked whether whoever wrote that was mistaken he indicated "Could have been, yes." The Commission directed questions at Mr Coles and in doing do also made observations comparing the relative height and build of Mr Coles (approximately 5' 9") with Mr Francis (solidly built and taller than Mr Coles). Mr Taylor rightly drew to the Commission's attention to the relevance of the direction/angle Mr Francis was facing (towards Mr Mansfield) to any consideration. However I have to say I still cannot see how, if Mr Coles was close enough to Mr Francis to observe the bottle under the singlet and see the chest heaving he was not therefore high enough above Mr Francis that his view of Mr Mansfield would have been in no way obscured by Mr Francis. 600 Whilst it could be accepted that he might not have focused his attention on Mr Mansfield, I find it hard to believe that if Mr Mansfield did have a bottle between his legs, on his lap and in the area of his crutch as Mr McNally told Mr Pavlovec, that Mr Coles would not have noticed this. 601 Mr McNally noted in his diary that he noticed "Ross Mansfield with a beer between his legs while sitting on a chair". In his witness statement "the bottle was sitting between his legs next to the crotch area of his work pants". Mr Mansfield (and the other men) denied this and he said there were two beer bottles under his chair (and it would seem therefore they were either between or behind his legs). 602 Given the criticism that has been made of Mr Francis and the calling into question of his explanation of holding the bottle under his singlet to keep it out of the sun, I would have thought the same criticism could have been levelled at Mr Mansfield. Surely it would not have been sensible on a hot day to have a beer between one's legs so close to the body as has been described by Mr McNally, I would have thought that would have resulted in rather warm beer (both from the sun and body heat). 603 I am therefore very sceptical that Mr Mansfield was in possession of a beer as described by Mr McNally. 604 In relation to the bottle under Mr Francis' singlet I agree he should have shown it to Mr McNally and the fact that he didn't can raise doubts about his evidence. However the same can be said of Mr McNally. He did not ask him to show what was under his singlet. I also have great difficulty in accepting that Mr McNally could quite categorically say he was able to tell it was a VB stubby rather than a Bundaberg Ginger beer bottle based on his familiarity with those two bottles and their differing neck shape. 605 An example of both bottles was tendered. Having measured the difference it is approximately 1.3 cms. I have also had the benefit of having observed those two bottles sitting side by side in my bookshelf for some three months now and I find it very hard to believe that when the Ginger Beer bottle was under a singlet (even accepting that the material of such would have been more figure hugging, as it were, than a work shirt) that anyone could have so positively identified it as a VB stubby as Mr McNally was prepared to do. Mr Coles was certainly not prepared to say other than there was a "bottle" under the singlet. 606 In Mr McNally's case there is also the issue of the speed at which this all unfolds. It can only have taken place in literally two or three minutes. By the account of both the men and Mrs Wotton only four lines of conversation are exchanged before Mr Meredith is asked to go around the side. Even Mr McNally and Mr Coles only have two additional lines being said. Even if one accepts that there were six lines of conversation that is by any measurement an extremely short and succinct conversation before Mr McNally and Mr Coles leave the immediate area with Mr Meredith. 607 The point I seek to make is that in the rush of things I believe that Mr McNally has jumped to a conclusion based on the beer he saw on the table and then has sought to justify that in circumstances where he should have made appropriate enquiry to establish beyond doubt just what the situation was that day. 608 The fact that Mr Francis still had the Bottle with some ginger beer left after an hour is not beyond credibility as suggested by Mr Taylor if the evidence of Mr Francis is accepted, that is that he had a drink of water from Mr Wotton's kitchen fridge when he went into the house to cut up onions. The Ginger Beer would have been the second drink he had and I therefore do not find it particularly exceptional that there was still a small amount left in the bottle. I indicate that I accept that evidence. Admission made by Mr Meredith/ diary notes/Managers accounts

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609 I also have great difficulty with the evidence of Mr McNally and Mr Coles concerning the conversation with Mr Meredith. I accept Mr Meredith's version of the exchange. 610 I also consider, based on the evidence of the men and Mrs Wotton and Mr Mcnally in cross examination (where he had essentially changed how far away he was, to being by the fence which would have down beside the two Sydney Water utilities). That conversation did not take place in any position where Mr McNally still had the men in the backyard in his line of sight. Neither group side said they could hear each others' conversations. If the three men and Mrs Wotton could not see Mr McNally and Mr Coles talking to Mr Meredith I fail to see that Mr McNally in turn could have seen them. 611 Mr Slevin has rightly highlighted the glaring omission from the diary notes of the two men concerning Mr Meredith's admission. If Mr Meredith made an admission that he was as bad as the men sitting there drinking beer then that was a very significant admission. Yet Mr McNally in making a specific note about what Mr Meredith said (which was not changed or added to in his subsequent short statement) only mentioned "Jason Meredith said they were having some lunch I said how long have you been here Jason said approximately 2.00pm. Someone had gone to the shops to get some sausages". Mr Coles made no reference whatsoever to any content of any conversation with Mr Meredith. There was also no reference in Mr Hutchinson's notes of the 17 October meeting which specifically made mention of Jason stating how long they'd been there. There is also no reference in the Disciplinary Report to any conversation between the two men and Mr Meredith or to any admissions made by him. 612 I therefore do not accept that any such admission was made by Mr Meredith. Indeed I accept his evidence that he rejected any accusation of drinking as conveyed by the substance of the complaint that was related by Mr McNally, by responding "Well, that's bullshit". That colloquial expression is well understood by all Australians, I would suggest, to mean that something is not true or ridiculous or not possible etc. 613 I should indicate at this point that I accept it would not be expected that contemporaneous notes, be they in a diary or whatever other form, would necessarily be a detailed record of particular events/conversations. However when some attempt is made to refer to specific issues (such as location of a beer or conversation by a person) then it could be expected that very important or significant aspects would be noted. In circumstances such as I have addressed above, omissions of such aspects become particularly significant and relevant. Alcohol smelt on Mr Francis and Mr Wotton

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614 Both Mr Francis and Mr Wotton have rejected the evidence of Mr McNally in maintaining that he could smell alcohol on them. This is another issue not mentioned in diary notes. I acknowledge however that it was noted as mentioned to Mr Hutchinson in the phone conversation on the 18 October. 615 Again I have difficulty with this evidence of Mr McNally. Mr Coles was standing behind Mr Francis but yet maintains he was not close enough to the men to smell alcohol. He was also with Mr McNally each time he spoke to the men. If he did not smell alcohol on Mr Francis I fail to see how Mr McNally could. I also note the evidence of the men that it was a hot and windy day. Mr Wotton was sitting at the table, Mr McNally was standing facing him but on the driveway side of the group between Mr Meredith and Mr Francis. I agree with Mr Wotton that I can't see that at any time Mr McNally would have been close enough to smell alcohol even if they had been drinking. In any event I would have thought a reasonably considerable quantity of beer would have to be consumed before a man would literally stink of alcohol as Mr McNally suggested was the case with Mr Francis. 616 I do not accept Mr McNally's evidence about Mr Wotton bumping him twice as he went to get his belongings out of his vehicle. No-one else saw this. The Commission specifically asked Mr Coles if he saw anything untoward at this time and he said he didn't. There was no mention of such a serous incident (an employee deliberately bumping an Acting Area Manager) until such time as Mr Pavlovec raised with Mr McNally that Mr Wotton had said he could not have smelled alcohol as he was never closer that 5 metres to him. This is another example of exaggeration/embellishment to establish a fact. 617 In any event Mr McNally in his statement had Mr Wotton moving towards him and the pipeline truck and then subsequently going into the house. Mr Wotton's container was in the break truck parked at the rear of the property facing the table and that was where he went to remove his files and place them on the table. No-one else, including Mr Coles, saw Mr Wotton go into the house. That just did not happen. Indeed it was Mr Coles' evidence that he and Mr McNally started moving to the front of the property to allow the men to get their belongings from the vehicles at this time. 618 There was extensive cross-examination of Mr McNally concerning Mr Wotton's movements to and from the truck but I do not accept that Mr McNally was in the position he maintained and that he followed Mr Wotton as he said he did or asked him what was he doing, he had already told the men to get their belongings out, which is just what they were doing.

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619 This leads me to the issue of moving the trucks. This is perhaps the only area where it is remotely conceivable there may have been a misunderstanding between the four men and the two Managers. When the issue rose about the trucks being on Mr Wotton's property Mr McNally maintained that he said something along the lines of "we'll move the trucks". The men generally maintain they were told something along the lines of "well move the trucks". It may, and I stress may, just be possible that the men misheard and misunderstood what was being said. However what is significant in my view is that Mr McNally took no action to stop the men moving the trucks. His explanation for that was "it wasn't my responsibility to physically restrain them from driving those vehicles out. That was their choice to drive the vehicles out." 620 Whilst I accept that it may not have been Mr McNally's responsibility to necessarily physically leap in front of the vehicles to prevent them being moved, he took no action at all, such as calling out to them to stop what they were doing and wait for the men he had arranged with Mr Stephenson to come and drive the vehicles back to the depot. This frankly does not sit with the concern he said he raised with the men about not being able to let them drive their trucks because he didn't know how many beers they had drunk. 621 He also made no mention of the action taken by the men in his diary, he merely noted "trucks driven out". Again I would have thought this a serious issue to record. 622 At the disciplinary interviews Mr Mansfield and Mr Meredith raised the issue of being asked to move the trucks out yet nothing was subsequently queried with Mr Francis or Mr Wotton. I acknowledge Mr Pavlovec did raise the issue with Mr McNally and sought an explanation which was given. 623 Overall I prefer the evidence of the men in relation to the issue of moving the trucks but given that it may have arisen out of a misunderstanding in the rush of things it becomes of insufficient weight to determine one way or another that in allowing the men to drive the trucks that that somehow supported that the Managers did not really consider they had been drinking. The men did not speak up to explain the situation

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624 Considerable significance was placed by Mr Taylor on the men not making more forceful efforts to tell Mr McNally and Mr Coles that they were not drinking when it was obvious they thought they were. If one accepts the evidence of the men and Mrs Wotton, Mr Wotton had clearly told Mr McNally that his wife was the only one having a beer and Mr Meredith had told Mr McNally they were just having lunch and that the substance of the complaint was "bullshit". 625 In those circumstances together with the speed at which events unfolded coupled with the men understandably being somewhat stunned and shocked (as they said) with what had happened it is not unreasonable in my view that they did not follow Mr McNally and Mr Coles to explain further. An explanation, albeit a very brief one, had been given. There is no doubt it would have greatly assisted the situation if they had taken more positive action. However they were not to know at that stage what it was that Mr McNally was to subsequently tell Sydney Water about what Mr Wotton said and what Mr McNally maintained he saw. 626 In any event there is also the issue of the time that was available in a practical sense to take up the issue with Mr McNally and Mr Coles. When one examines the phone records and the relevant times listed out for that hour (see above Chronology and Background) there was only about a ten minute period in which the conversations with the men in the backyard and the conversation with Mr Meredith around the side of the house took place before Mr McNally and Mr Coles have moved to the front of the property and Mr McNally placed a call to Mr Stephenson at 15.46 p.m. Based on those phone records Mr McNally could not possibly have commenced to return to the backyard to tell the men they were stood down before at least 16.12 p.m or 16.13 p.m. 627 Mr McNally had an exceptionally long call of 13 1/2 minutes with Mr Nisbet, far longer than his account in his witness statement would suggest. There was no evidence from Mr Nisbet to assist the Commission. I wonder why it took so long to explain what had been seen and said and in return what was to be done. Unfortunately no further light was shed on this. 628 The events concerning telling the men they were stood down, the men moving to the trucks to remove their belongings and then moving the trucks out onto the road all took place within an even shorter time frame than the first encounter between the men. Mr Francis had moved his vehicle out onto the road and was using his mobile phone to call Mr Campise at 16.18 p.m (the call lasted some 6 minutes). His vehicle had to be moved to allow Mr Meredith and Mr Mansfield to move vehicles (including the break truck), however all the other men were obviously also moving to vehicles and moving them out at this time. As I indicated above at 16. 21 p.m. Mr McNally took a photo of Mr Francis' vehicle parked on the road and at 16.22 p.m. he took a photo of the break truck out onto the road. Mr Francis said he was moving back to the backyard with the men while talking on the phone. 629 Taking all that into consideration I just do not see where there was any real opportunity for any further discussion. I also accept that it would have been fairly clear that once they were told they were stood down anything they might have said would be pointless, the decision had been made. 630 There was also the evidence about the nature of Mr McNally. Even if I accept Mr Taylor's submission about just how little Mr Mansfield had had to do with Mr McNally there was still Mr Meredith's evidence and that of Mr Francis about realising what would have been set in motion. 631 I also had the opportunity of observing the demeanour of the witnesses. I was reasonably impressed with the forthrightness of the men. I acknowledge Mrs Wotton's inability to recall various issues put to her and some of the clear inconsistencies in Mr Mansfield's evidence. Mr Wotton struck me as not being a loquacious man, indeed a man of few words. Any criticism that could be directed his way or to Mrs Wotton about having to check their witness statements before answering could certainly be raised in the same way about Mr Pavlovec. He was just pretty much not prepared to answer any question without first referring to what he had said in his witness statement and checking that. 632 I have already referred above to my observations concerning Mr Coles. 633 As far as Mr McNally is concerned I also found him to be very forthright, indeed somewhat assertive and determined in a way that would lead me to believe that whilst I have no doubt he would be "firm but fair" and a "no-nonsense" type of person I also don't believe he would brook being challenged or contradicted by those he was supervising. I therefore do not doubt that he would not necessarily be an easy person to approach in the no doubt heated situation that existed on the afternoon of the 16 October at 56 Caldarra Avenue. No motive for Managers to lie/motive for Applicants

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634 As far as a motive existing for the applicants to be untruthful Mr Taylor is correct in saying that they had the very real motivation of seeking not to be terminated and to get their jobs back. However the same could be said for every applicant that comes to this Commission seeking reinstatement. Just because there is such a motive, however powerful it may be, does not mean that being untruthful is the natural consequence. 635 Mr Slevin is also correct in that it is not necessary that the Commission find a that motive exists for the Managers to be untruthful before it is possible to say that they have in fact been untruthful. 636 I have in fact carefully considered this issue. I do not consider that, based on the evidence, there can be established a such a motive for the Managers. However I do consider that there was, what could be termed a lesser characterisation, of some degree of motivation for what has occurred with the Managers. 637 I note that Mr McNally had only been in the position of Acting Area Manager for a week and a half out of a three week appointment to replace Boris Sinikoski (the nominated Team Manager for the Miranda Depot - Exhibit 18). It is understandable that he would be keen to show that he was up to the job as it were. 638 A complaint had been made by a member of the public. It is clear from the evidence of Mr Coles as to the conversations with Mr McNally when they were around the side of the house and before Mr Nisbet was called that they were understandably concerned about that complaint and its implications for them personally. Mr Coles has Mr McNally saying "We're going to have to do something about it otherwise you know if it's not them, it will be us". This almost suggests that just because a complaint has been made something has to be done regardless of what is discovered. 639 Mr Coles went on to explain this conversation in evidence: "What he was saying was that we both knew that a complaint had been made, many people knew about it, we had to do the right thing, otherwise if we did the wrong thing, it would have got back to our bosses, my boss and I would be justifying my job. That's what that conversation was about." 640 I can't imagine that Mr McNally would be the type of person to turn a blind eye, or be prepared to overlook some inappropriate action (such as drinking alcohol) or performance issue by men he was supervising if he were to see such.

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641 Mr McNally also refers in his statement to saying...'They can't drive those trucks. If they drive those trucks and have an accident mate, my arse is gone and so is yours alright?". 642 Clearly there was a concern that if they didn't do something they would be in strife. 643 Now I do not consider that those conversations of themselves support the truth of the allegations or the Managers' accounts. As I have alluded to above what I believe happened that afternoon is that Mr McNally rushed in, had the opportunity of clearly establishing just what the situation was but did not, and has had to take the circumstantial evidence of a beer on the table next to Mr Wotton, an unknown bottle under Mr Francis singlet and bottles under Mr Mansfield's chair together with what the little the men say (and are asked) and establish that something more has happened. This particularly occurs way down the track after the four men have filed their witness statements and significant details are incorporated into the Managers' witness statements for the first time, turning what was previously basically circumstantial evidence of misconduct into hard fact and evidence of such misconduct. 644 It was abundantly obvious to me that Mr Coles was anxious to not say anything that would contradict or undermine Mr McNally's version of events hence the reasons sometimes given for why he didn't notice something or see or smell something. 645 I have already indicated above that I view very seriously what Mr Slevin somewhat kindly suggested were the "embellishments/exaggerations" made by Mr McNally and Mr Coles in their evidence compared to the account they gave to Sydney Water. I characterise it as telling untruths or as I have bluntly expressed above, they have lied. That calls into question their whole account from beginning to end in my view and goes way beyond what could be described as "Mere corroborative detail, designed to add artistic verisimilitude to an otherwise bald and unconvincing narrative" (W.S.Gilbert - "The Mikado"). The investigative process

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646 I do have some concerns with the investigative process. I acknowledge that the men were stood down on full pay pending the outcome of an investigation; they were all given, in writing, clear and unequivocal detail of the specific allegations against them; they were all subject of individual disciplinary interviews at which their ASU representative was present; they each received copies of the minutes of their respective interviews and they had the opportunity of raising any mitigating circumstances before termination was effected. To that extent they were afforded procedural fairness. 647 However I have some difficulties with the process that was undertaken as follows: · Firstly there was no proper and thorough checking of the situation by the Managers who attended 56 Caldarra avenue in circumstances where they clearly had the time and opportunity to do so. If it had been done properly the outcome may have been very different. · The two Managers were interviewed together on two occasions. Indeed the meeting on 17 October could hardly qualify as an interview it was more participation in a planning session or a council of war. Just because they were managerial staff does not mean that they should have been treated any differently to the wages staff employees who were alleged to have committed misconduct. They were crucial witnesses to a scene and events. I just do not accept Mr Petterson's assertion that it is simply a case of "there's been different methods used for collecting information in that investigation." · Mr Coles whited out a contemporaneous diary entry and rewrote his account over the top. There is no issue that if he felt it was untidy or could have been set out more appropriately he was perfectly entitled to re-write it. He could have crossed it out and rewritten it or stapled an additional page to the top of the page. This could be the subject of some specific advice to supervisory staff by Sydney Water's HR people. · There was no complete and comprehensive account of the afternoon's events that was prepared by the two Managers until their witness statements. · The complaint seems to have coloured the entire process from start to finish. There was no follow up verification of the complainant and indeed the contact details of the complainant were never ascertained. · Mr Pavlovec shredded his notes of the disciplinary interviews. This may seem a minor point but such notes should always be retained. I have had a previous case where crucial inconsistencies between two sets of handwritten notes and the final typed version may have been able to be clarified by the missing third person's notes. I very carefully checked the two handwritten sets of notes against the typed version. There were very minor differences which I did not consider warranted further consideration. However it is an important part of an investigative process to keep such hand written records just as Mr Hutchinson did. · There is not one skerrick of acknowledgement in the Disciplinary Report of anything in the favour of the men or any credit whatsoever credit given to them about any issue. Indeed it is negative heaped upon negative. Relevant sections have been underlined in the Background and Chronology above. · Mr Petterson considered the credit of the Managers but absolutely no acknowledgement appears to have been given to the unblemished records of the four men or any credit of the employees. · The men were not provided with a copy of the minutes of their interview minutes until they were actually advised they were terminated. They should have been provided with a copy before the final report was typed for their verification as a correct record with the opportunity to make any corrections they considered necessary. The corrections they believed were necessary to those minutes were not made until they came to have their witness statement prepared in January. The time lapse would not have assisted their recollection of the interview process (and they made no notes). Also this process would have been undertaken without the assistance of Mr Campise who was them in the interviews and who had by this time left the ASU to take up his current position with the LHMU. They are therefore less reliable as a consequence. · The issue of mitigating circumstances was not raised with them until after the report had been finalised and the day before they were each terminated. One wonders what would have happened if one of the men had raised some mitigating factor that Mr Petterson considered worthy of consideration at that late stage. 648 However just because there are issues that can be raised concerning an investigative and decision making process it does not automatically follow that there has been procedural unfairness in that process. What must be considered is whether the outcome would have been different had there not been such issues. 649 This presents me with some difficulty. I have no doubt that if Mr McNally and Mr Coles had carried out a more thorough checking of the situation they found that day and if there had been a more thorough and transparent interview process applied to them, together with a more thorough follow up of the complaint, then the information available to Sydney Water would have been more complete and beyond any doubt. That may have resulted in a different outcome if it was clear that the men were not drinking but had simply had a longer lunch than was authorised and in circumstances that Sydney Water would seek to discourage. 650 It would seem to follow in that event that Sydney Water would arrive at the same conclusion that I have reached. In the alternative if it was absolutely beyond doubt that the drinking of alcohol had taken place then the ASU would have been in a position to be aware of that and negotiate the best outcome for its members given the circumstances. Conclusion

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664 I therefore make the following findings based on the reasons I have outlined in detail above: · The four Applicants and Mrs Wotton have given a truthful account of what took place on 16 October 2007. · They have given consistent accounts of what happened as a consequence of both the events/conversations actually occurring in that manner and the process followed by the ASU in preparing the witness statements with them and on their behalf. · I consider they gave their evidence in a forthright and honest manner. Whilst there were some contradictions and events they could not recall (e.g what was discussed during the period the Managers were out the front of the property making phone calls), I do not consider that of sufficient weight or relevance to lead me to question their truthfulness or their account of the more crucial and relevant events/conversations of the afternoon. · Requisite work was completed as per the relevant Job Card and the times given by the men are correct. · Rope was obtained from Darren Wotton's house for use in the job as there was none available from the store when sought by Mr Mansfield. · There is no evidence to support any pre-planning of a barbeque lunch and an intention to drink beer. · Mr Wotton's home was closer to the Mt Carmel gate than the Heathcote Depot and more conveniently accessed particularly given the fire run work to be carried out in the afternoon. · There was a barbeque at the Wotton's house on the evening of the 15 October 2007 and as a consequence there were a number of empty beer bottles that had not been cleaned away in various locations in the backyard. · The men did take longer than was authorised or appropriate to have their lunch. · Mr Wotton, Mr Francis and Mr Mansfield were not drinking beer. · The only person to drink beer during that afternoon was Mrs Wotton and it was her beer that was on the table. · Mr Francis was drinking a bottle of Bundaberg Ginger Beer which was under his singlet. He should have shown this to the Managers but equally Mr McNally should have requested that he be shown the bottle. · Mr Mansfield did not have a drink and did not have a beer between his legs on the chair. · The only issue that could be raised against Mr Meredith as Acting Field Supervisor, was that he allowed lunch to proceed for a period of time outside that permitted by Sydney Water. · There was an anonymous phone complaint made to Sydney Water but this complaint was not followed up further. · Mr McNally and Mr Coles did not conduct a thorough investigation of the situation at 56 Caldarra Avenue and had the opportunity to do so. · Mr Wotton did not admit to drinking beer, he told the Managers his wife was having a beer. · Mr Wotton was not holding a bottle of beer and he did not hold up the bottle and shake it. · Mr Meredith did not make any admission that would have confirmed that the other men were drinking and that he was just as bad. · No alcohol was being consumed therefore none could have been smelt on Mr Francis and Mr Wotton and in any event MrMcNally was not close enough to either man to have done so. · Mr Wotton did not bump Mr McNally twice as he was taking his belongings out of the break truck. · There may have been a misunderstanding between the men and the Managers about moving the trucks out onto the road, however he took no action to prevent it nor does he appear to have reported it. · There were relevant and crucial differences between the contemporaneous notes of the two men and fundamental omissions from those notes. · The two Managers were not truthful in their evidence and added specific details that were not true to their witness statements that were not previously raised with Sydney Water or put to the men. · These last two issues in particular have lead me to the conclusion that the Applicants' and Mrs Wotton accounts of the events of the day are to be preferred to the Managers' accounts. · There are issues that can be raised about the investigative process as detailed above which may have affected the disciplinary outcome for the four men. 665 I find therefore that the terminations of Mr Mansfield, Mr Francis and Mr Wotton were not only harsh they were unjust and unreasonable in circumstances where they did not commit the misconduct alleged. 666 It follows that Mr Meredith should not have been demoted and transferred from the Miranda Depot. Remedy 667 Reinstatement was sought on behalf of Mr Mansfield, Mr Francis and Mr Wotton. As I have observed in previous cases involving misconduct, where a finding is made that the misconduct did not take place then it would be visiting a further unfairness on an applicant not to order reinstatement where such was sought (see Harley Bell v Linfox [2006] NSWIRComm 1025). 668 Mr Slevin has taken the Commission to the relevant cases for consideration on the issue of reinstatement and submitted that it is the primary remedy provided for by the Act. 669 There have been absolutely no issues raised by the Respondent as to the impracticality of restoring the employer/employee relationship. The only issue raised is that the vacant positions at the Miranda Depot have been filled and reinstatement would have to be to vacant positions. However Sydney Water has been on notice since the men were terminated that the ASU would be pursuing reinstatement applications before the Commission. The applications were filed on the 8 November 2007. Filling the vacant positions of the men on a permanent basis or without telling the employee filling the position that the situation might change in the future would seem to have been somewhat precipitous on the part of Sydney Water. 670 Having found that the men did not commit the misconduct alleged and their termination was harsh and unjust and unreasonable, not to return them to the Miranda depot where they had worked with no problems raised and where they lived in the local area would be most unfair and unreasonable in my view. 671 As Sams DP observed in Staal & ors "mere discomfort for the employer, however, is not sufficient to establish the impracticability of reinstatement." He went on to cite Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 as applied in Hollingsworth v Police Commissioner (No.2) (1999) 88 IR 282 at 341 on the issue of practicality of reinstatement. I have considered those cases as well as Australasian Meat Industry v Sunland Enterprises (1988) 25 IR 137. 672 Accordingly I find that reinstatement would not be impractical. I propose to make orders accordingly. 673 In respect of orders for lost remuneration, I note that the three dismissed men found alternate employment very soon after their terminations and sought to appropriately mitigate their loss. They deposed that their earnings in that alternate employment were less than they would have earned at Sydney Water. Unfortunately there was no quantification of such lesser amounts earned nor any detail provided as to any penalty payments such as shift allowances, weekend penalties or regularly rostered overtime that might have been received whilst at Sydney Water. I do not consider that they should be disadvantaged by seeking to rightly mitigate their loss. I therefore propose to make orders pursuant to s89(3) for the three men to be paid lost remuneration as from 1 November 2007 less any remuneration earned from that date to reinstatement and less the two weeks notice payment to them on termination. 674 In relation to Mr Meredith I propose to issue orders as sought by the ASU. 675 The parties are directed to confer as to the appropriate amounts to be paid in the light of this order. Liberty to apply is available in the event of any disagreement.

Parties

Applicant/Plaintiff:

Australian Services Union of N.S.W.

Respondent/Defendant:

Sydney Water Corporation

Legislation Cited (1)

Industrial Relations Act 1996(NSW)

Cases Cited (41)

16 The issue of legal privilege arose at the outset of the hearing and was further raised and re-visited early in the cross examination of Ross Mansfield. 17 Solicitors for Sydney Water had filed a Summons for Production pursuant to s.165 (3) (c) against Ross Mansfield, one of the applicants, for production of a number of documents. 18 A number of documents were produced by Solicitors for the ASU in response to the summons but a claim of privilege was sought in relation to two items coming within paragraphs 7 and 8 on the attached schedule. 19 After hearing the submissions of the parties I allowed applicant's claim for privilege in relation to the documents specified. I now give reasons for that ruling. 20 Paragraphs 7 and 8 of the schedule attached to the Summons for Production were as follows: 6. All documents evidencing notes made regarding the events of 16 October 2007 (" Events ") and notes made regarding any meetings you attended in relation to the Events during the period between 16 October and 1 November 2007 inclusive. 7. All documents evidencing your response to the allegations made against you in relation to the Events during the period between 16 October and 1 November 2007 inclusive. 21 The two specific items in question were, firstly a letter to Ms Naomi Arrowsmith, the Assistant Secretary of the Australian Services Union from Mrs Mansfield, Mr Mansfield's wife, with an attached document headed "Documentation For Union - Prepared By Donna Mansfield". (It was submitted that Mrs Mansfield was acting as agent for Mr Mansfield in the production of the documents.) Secondly, a document headed "Documentation for Union - Prepared By Ross Mansfield". 22 Mr Slevin submitted that the claim for privilege in relation to the two items concerned was founded on s.119 of the Evidence Act 1995. The dominant, indeed the sole, purpose of the documents was to assist in the preparation of evidence for these proceedings. Additionally the documents were confidential by their nature, being instructions in legal proceedings, and also on their face where the word "confidential" appeared. 23 Reliance was placed on the decision of Justice Austin in Southland Coal Pty Ltd (rec & mgrs apptd) (in liq) [2006] NSWSC 899 wherein he set out at para 14, a formulation of some eleven principles about client legal privilege arising under s.118 and 119 including the procedure to be applied in assessing a claim for client legal privilege as follows: "(b) Two-stage process - Assessing a claim for privilege under s118 or s119 is a two-stage process. The first step is for the court to be satisfied that the communication or contents, disclosure of which is sought to be prevented, satisfies the requirements set out in s118 or s119 or both sections. The second step is for the court to be satisfied that the production of the document or the unredacted part of it would result in the disclosure of a confidential communication or confidential contents of the document." 24 Mr Slevin indicated that he did not rely on the legal advice privilege arising under s.118 but rather the litigation privilege arising under s.119 with the relevant rule to be applied being Rule 186 (1) of the Industrial Relations Commission's Rules as set out below: 186 (1) [Commission must not compel production of document] where the C ommission , by summons or otherwise, orders any person to produce any document or thing, and any person makes and substantiates sufficient lawful objection to production on grounds of privilege, the Commission must not compel production of that document or thing except production to the Commission for the purpose of the ruling on the objection. 25 Mr Slevin dealt with the relevant principles as enunciated by Austin J and submitted that the requisite onus for establishing the claim of privilege was made out firstly, as the documents had been produced to Commission and secondly, the dominant and sole purpose of the communications, when viewed objectively, was for the purpose of obtaining legal professional services. 26 The claim of privilege over the documents in question was opposed by Mr Taylor for Sydney Water with reliance placed on a decision of Schmidt J. in Michael Wolf v Armstrong Miller and McLaren Pty Limited [2005] NSWIRComm 92. 27 It was submitted that s.119 applied at the point where evidence was being adduced not at the point where the evidence was to be produced by way of summons or subpoena. However more fundamentally it applied where the dominant purpose was for the client being provided with professional legal services. These were documents sent to the Union, with Slater and Gordon filing their involvement some months after that event. Therefore it could not be said that the material was provided for the dominant purpose of obtaining professional legal services. 28 Mr Taylor also suggested that the more relevant and applicable rule was 186 (7). However the Commission would need to be satisfied that there were special grounds to uphold such a claim. 29 The Commission would also need to be satisfied that there was a privilege that would have arisen if the advocate or the Officer of the ASU had been a legal practitioner. 30 In support of his submission Mr Taylor cited in some detail the decisions of Schmidt J., and Sams DP in New South Wales Nurses Association (on behalf of David Harding) v Western Sydney Area Health Service [2002] NSWIRComm 35. Both decisions dealt with the provisions of Rule 186 and contested issues of claims of privilege. 31 The Commission was also taken to the decision of Boland J. in John Cahill v State of New South Wales (Department of Community Services) [2007] NSWIRComm 1. Whilst that decision was concerned with the issue of client legal privilege arising under Rule 161 Notice to Produce for Inspection, the issue of privilege arising under sections 118 and 119 of the Evidence Act is dealt with in some detail.

(1999) 91 IR 385

(1999) 93 IR 209

(1992) 53 IR 225

(1998) 80 IR 434

(1933) 49 CLR 66

(1938) 60 CLR 336

(1998) 87 IR 54

(1995) 185 CLR 410

(1994) 55 IR 255

(1999) 90 IR 70

(2003) 214 CLR 118

(1996) 72 IR 257