Electricity Commission of New South Wales t/as Pacific Power v Nieass and Others

Industrial Relations Commission (NSW)|2004-02-05|Before: Harrison DP, Mr J

CITATION : Australian Services Union of New South Wales (o/b J Davidson) and Hunter Water Corporation [2004] NSWIRComm 7 PARTIES : Australian Services Union of New South Wales (o/b J Davidson) Hunter Water Corporation FILE NUMBER: IRC 5277 of 2003 CORAM: Harrison DP CATCHWORDS : Application re unfair dismissal - alleged misconduct - overtime payments claimed - work not performed or required to be performed. Held - misconduct proven - termination not harsh, unreasonable or unjust. LEGISLATION CITED : Industrial Relations Act 1996 Electricity Commission of New South Wales t/as Pacific Power v Nieass and Others (1995) 81 IR 46 CASES CITED : Four Sons Pty Limited v Sakchai Limsiripothong [2000] NSWIRComm 38 Lorenzato and Sydney Water Corporation [2002] NSWIRComm 277 HEARING DATES: 12/01/2003; 12/04/2003; 12/05/2003 DATE OF JUDGMENT: 02/05/2004

APPLICANT Ms A Milson Australian Services Union of NSW LEGAL REPRESENTATIVES: RESPONDENT COUNSEL Mr R Warren

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HARRISON DP Thursday, 5 February 2004

AUSTRALIAN SERVICED UNION OF NEW SOUTH WALES (O/B JEFFREY RAYMOND DAVIDSON) AND HUNTER WATER CORPORATION

Application re unfair dismissal pursuant to s84 of the Industrial Relations Act 1996 ("the Act")

1 The application in this matter was filed on 23 September 2003 and subject to proceedings for the purpose of Conciliation and Directions on 8 October 2003. The proceedings established that the matter could not be settled by conciliation. Directions were issued to bring the matter to hearing on 1, 4 and 5 December 2003 on the estimate of three days required.

2 On hearing Ms A Milson of the Australian Services Union, New South Wales Branch ("the union") appeared on behalf of Mr J Davidson ("the applicant").

3 Mr R Warren of Counsel appeared on behalf of the respondent, Hunter Water Corporation (HWC).

4 Ms Milson brought evidence from the applicant who was subject to cross examination by Mr Warren. Ms Milson tendered affidavits from Mr Donahoo, Mr Hughes, Mr Bucci, Mr Matthews, and Mr Watts, employees of the respondent at the relevant time. The respondent did not require these deponents for cross examination. 5 Mr Warren brought evidence from Mr Witherdin, the applicant's supervisor at the relevant time; Ms Postlethwaite, employed by the respondent as Manager, Compliance and Review; and Mr Hinchy employed by the respondent as Manager, Operations Group.

THE EVIDENCE 6 The applicant has been employed by the respondent since 1978. Employment was terminated on 17 September 2003 on the grounds of serious misconduct.

7 The misconduct alleged is that the applicant wilfully and knowingly claimed overtime payment for work either: not performed, or not requested and not authorised to be performed.

8 The letter of termination handed to the applicant on 17 September 2003 (Att. 6 to Exhibit 1 and elsewhere in evidence) further states: Your actions are entirely unsatisfactory in that they reflect a pattern of wilful conduct over a period of time designed to deceive and thus obtain for yourself a financial benefit to which you were not entitled. It is fundamental to the employment relationship that the Corporation has trust and confidence in its employees particularly where they are a supervisor. It is not acceptable to continue the employment of a person where we have a reasonable satisfaction that their behaviour has been dishonest and they have acted contrary to the best interests of the Corporation and its staff.

Consequently, the decision has been taken to summarily dismiss you from the service of the Corporation on the grounds of your serious misconduct, effective immediately. This decision has not been taken lightly and consideration has been given to your record in the organisation and your total length of service with the Corporation.

It should be noted that the Corporation is obliged to refer this matter to the Independent Commission Against Corruption (ICAC). It should also be noted that investigations into your overtime claims are continuing.

9 The allegations are denied on the grounds that: · The applicant applied the overtime policy put in place by the respondent; · The allegations arose from an interpretation of the policy and flawed procedures regarding overtime; · Claims have never been queried in the past; · Denial of substantive and procedural fairness arising from an absence of warning over a period of six years that the applicant has applied consistent work practices.

10 The applicant is a licensed electrician and holds Post Trades Electronic Certificates 1 and 2, Electrical Trades Certificate, and a Qualified Supervisor's Certificate.

11 The applicant commenced employment with the respondent in 1978 as an electrical fitter. From that time until 1996 he occupied various positions with the respondent and a subsidiary company, Hunter WaterTech. In 1996 the applicant commenced as a technical officer with the respondent in the establishment of an internal services group known as "Electrical Mechanical Maintenance" (EMM). In 1997 the applicant was appointed Supervisor Communications and Electronics with the responsibility to manage and control telemetry and instrumentation systems. This work entailed managing day to day and after hours work relating to all facets of the maintenance contract for telemetry and instrumentation. It is the applicant's evidence that he held an autonomous role within the group and dealt with after hours work as required.

12 The evidence is that around the year 2000 EMM and Operations were amalgamated and in 2001 came under the management of Mr Hinchy as Operations Manager. The applicant's evidence is that his duties and the way in which he discharged them did not change. 13 The respondent operated a system known as "Supervisory Control and Data Acquisition" (SCADA) for the maintenance and control of all assets. An associated system, described as "Assets Operation Maintenance System" (AOMS) is a computer based system on which work required to be done is described and allocated a job number for communication to field personnel. A control room operator takes information from SCADA to determine work requirements. The process of job allocation and communication by AOMS includes information on job priority which has significant impact on overtime authorisation discussed later.

14 The applicant deposed that his duties involved the authorisation of all work to be undertaken as well as response to failures as required. The applicant deposed that this duty included the authorisation of overtime of employment for whom he was responsible and that his personal overtime claims were submitted to Mr Witherdin for approval.

15 The applicant's evidence at point 8 of his affidavit is that his understanding of the overtime authorisation procedure was that in his position as supervisor he was authorised to undertake overtime of work he considered necessary in the maintenance and repair of the respondent's assets.

16 The applicant deposed that not all work needed to be performed on site, putting that telemetry system failures could be rectified using one or more of the following methods:

· Peer to peer (site to site) routing via laptop computer and radio interface; and

· Program testing on laptop computer remote from site with on site follow-up.

17 Overtime is paid in accordance with the Hunter Water Corporation Employees (State) Award 1999 332 IG 1307 ("the Award"). Overtime occurs either as: "continuous overtime", i.e. when work continues uninterrupted beyond normal closing time; "call-out overtime", i.e. when staff are recalled to work after cessation of normal work; "pre-planned overtime" which occurs on a needs basis and relevant circumstances; or "call support overtime", i.e. when staff are called but not required to leave home to respond to a problem. Call support overtime is a minimum one hour payment at overtime rates irrespective of the number of calls dealt with in the hour.

18 Mr Hinchy's evidence, which is not contested, is that the type of work required of electrical/mechanical staff is classified into breakdown and non-breakdown, the latter further categorised as scheduled maintenance, condition-based maintenance, miscellaneous work, and "other" which includes external work. Mr Hinchy deposed that all jobs issued by AOMS are coded accordingly.

19 Mr Hinchy's evidence in respect to documentation and communication of overtime policy is found in his affidavit (exhibit 10) at points 14 to 18 below: 14. The Corporation's requirements for response and completion times for different priority works are documented and have been communicated to staff through specific training sessions, for example in January 1999 and again in early 2000. Priority 1 jobs are highest priority and require commencement within two hours and completion within four hours. Priority 2 jobs normally require commencement within one working day. At weekends however, these Priority 2 jobs are referred to the No. 1 on call electrical person for review as to whether the job can be held until the next working day. If they are unsure on these or wish to discuss with someone they are able to contact a rostered senior engineering officer. Priority 3 jobs require response within three working days and completion within five working days. Priority 4 jobs have a specific timeframe nominated.

In response to rising overtime costs within the electrical/mechanical group during the 2001/02 financial year, I formed the view that greater rigour was required by Field Supervisors for controlling non-essential overtime and my memorandum of 8 March 2002 (copy attached as Annexure 2) was issued. This memo was addressed to the three electrical/mechanical supervisors and I requested Mr David Witherdin to issue it to them. A further clarifying memorandum to them was issued by Mr David Witherdin on 26 February 2003 which also had attached the 8 March 2002 memo. A copy is attached at Annexure 3.

In respect to the overtime approval process, there is a clear distinction between that for breakdowns compared to that for non-breakdowns. Also in respect to breakdowns there are clear distinctions for approval of overtime between those of a high priority compared to those of a low priority.

For non-breakdown categories of work, ie scheduled maintenance, condition based maintenance, miscellaneous work and other work, the guidelines are that the working of overtime requires prior approval of the Operations Engineer, Mr David Witherdin or myself. Refer to my memorandum of 8 March 2002, Annexure 2.

For breakdown work on priorities lower than Priority 1, staff require prior approval to work overtime at Supervisor level or above (Monday-Friday) ie on the one (1) up principle (for example a tradesman would be expected to seek approval from a Field Supervisor, and a Field Supervisor would be expected to seek approval from the Operations Engineer or myself). At weekends the attendance of Priority 2 jobs is subject to review by the No. 1 "on call" Electrical/Mechanical person as noted under 14 above. In respect to Priority 1 breakdowns (Monday-Friday) overtime maybe worked on these jobs without prior approval when the overtime is worked continuously on the same day the job is allocated. Overtime work on subsequent days on these Priority 1 jobs however, requires approval at supervisor level or above, on the one (1) up approval principle, outlined above.

20 The memorandums referred to by Mr Hinchy are annexed to exhibit 10 and set out below. Annexure 2.1 Memorandum from Mr Hinchy of 8 March 2002: As Field Supervisors within the electrical/mechanical group you have accountability for authorisation of overtime for staff under your control.

As a general principle all overtime is subject to approval of supervisory/management staff and the concept of blanket approval for work on 'breakdown' type jobs irrespective of priority is fundamentally flawed as it bypasses this accountability.

There are concerns that overtime on low priority jobs and 'non-contract' type jobs is not adequately scrutinised and justified and is being done without any reference to yourselves.

The following actions are required for immediate implementation:

Each of you is to enforce with your respective staff the requirement for prior approval of overtime on low priority works. A record of approvals/non-approvals shall be submitted to David Witherdin weekly. The record shall include brief reasons for approval.

'Non-contract', miscellaneous or scheduled maintenance works requiring overtime shall be subject to approval of David Witherdin or Manager Operations (in David's absence). A weekly record is to be kept of approvals indicating reason.

If any Supervisor is required to work overtime as under 1 or 2 above then prior approval shall be sought from David Witherdin (or Manager Operations in his absence). Annexure 3, Memorandum from Mr Witherdin, 26 February 2003: Further to the Manager Operations memorandum of 8 March 2002 (attached), further clarification on the authorisation of overtime is detailed below:-

Prior approval of planned overtime is required for Priority 1 jobs where further work is required on days subsequent to the start date of the job. For example where a job is logged on 5/2/03 no prior approval is required to undertake overtime on 5/2/03 but if subsequent overtime work is considered necessary on 6/2/03 or subsequent days then prior authorisation must be obtained.

The basis for this is that once the first response has been completed and service has been restored the overall completion of the job generally no longer requires an urgent response.

The following actions are required for implementation:

Each of you is to communicate this clarification with your respective staff. As with other works requiring authorisation of overtime a record of approvals/non-approvals shall be submitted to myself weekly. The record shall include brief reasons for approval.

2 If any Supervisor is required to work overtime as under 1 above then prior approval shall be sought from myself (or Manager Operations in my absence).

21 The procedures detailed in the above annexures are supported by form stationery providing for detail of work and approvals as required by the policy.

22 Despite substantial evidence of compliance with overtime policy and procedures and use of approval forms by Mr Davidson in respect to subordinates (where he has approved overtime), and himself (where Mr Witherdin has approved overtime), Mr Davidson maintains that the policy does not apply to him in his supervisory role and that he retains an authority to exercise his own discretion to work overtime regardless of job priority or authority constraints found in the policy.

23 The evidence of Messrs Donahoo, Hughes, Bucci, Matthews and Watts does not assist. Each attests to the technical competence and application toduty of Mr Davidson, suggesting that the EMM group operated in a semi-autonomous manner set apart from the supervision of Mr Hinchy and Mr Witherdin on a "technical basis". Mr Donahoo's evidence is that in the time he supervised Mr Davidson prior to Messrs Hinchy and Witherdin, overtime claims put to him were all reasonable and approved. The evidence of the other witnesses is that they regarded Mr Davidson as the effective leader who controlled overtime in a proper and effective manner having regard to responsibility for after hours maintenance of assets.

24 This evidence is contradictory to the extent that it suggests proper compliance with overtime policy and semi-autonomous operation and engages in a denial of management authority which is impossible to sustain.

25 The evidence of Mr Witherdin is that he held Mr Davidson in a position of trust and respect, accordingly not subjecting requests for overtime approval to detailed scrutiny, however, held concerns at the level of overtime worked. 26 Mr Witherdin describes his concerns and relationship with Mr Davisdon at points 15 and 16 of his affidavit (exhibit 8) in the following terms:

Mr Davidson was paid a high level of overtime, almost double the next highest overtime earner over the last two financial years. Although he claimed a high level of overtime, I believed that the basis for the overtime claims was legitimate. I did have concerns for Mr Davidson's health and family circumstances given the high number of hours he was apparently working. I made a mobile phone call to Mr Davidson in early 2003 and raised my concerns with him. I said words to the effect of "Is your level of overtime impacting on your health and your family life?" Mr Davidson paused for a long while and that said words to the effect of "It's not a problem, things are going fine and you should not be concerned." The tone of his voice indicated that he was agitated by my question. I then said words to the effect to Mr Davidson of "I have responsibilities for your safety as your manager and I don't want you to fall asleep behind the wheel of your car one day due to being overworked." 16. During my time working with Mr Davidson I consider I established a good professional relationship with him. Mr Davidson appeared to be technically competent. I had fairly regular contact with Mr Davidson but it was usually at my initiation. It was clear to me that he preferred to run his own area with minimal involvement from management.

27 It is Mr Witherdin's evidence that on 12 August 2003 he undertook a routine review of overtime for the period 4 August to 10 August 2003, noting that both Mr Davidson and a Mr Terry Hughes had submitted claims for overtime payment for Job No 27100 at Silver Ridge Water Pumping Station on 10 August 2003. Mr Witherdin deposed that this was not unusual and he assumed that it must have been an "involved job", approving both claims for payment.

28 Mr Witherdin's evidence is that on the morning of 13 August 2003 he encountered Mr Hughes during the course of routine field visits to supervisors and enquired about the complexity of Job No 27100. Mr Witherdin describes Mr Hughes' response at point 21 of exhibit 8 in the following terms: Mr Hughes gave me a shocked look and said "No, as far as I know Jeff was not involved with the job". I then said "Did you call Jeff to offer you some assistance with the job?" Mr Hughes then said words to the effect of "I provided call support to Louise Benson in Dispatch and I was not required to attend the site as the fault eventually self-corrected".

29 Mr Witherdin's evidence is that he subsequently reviewed SCADA and AOMS records in respect to Job No 27100 and, subsequent to discussion with Mr Hinchy, spoke with the Control Centre Operator, Ms Benson, who informed him that she had allocated the job to Mr Hughes and that there were no other staff involved with the job and further that the fault had "self-corrected". Mr Witherdin's evidence is that on review of AOMS Ms Benson was surprised to see that Mr Davidson had time charged to the job.

30 Mr Witherdin's evidence is that he subsequently met with Mr Hinchy, Ms Roach(Relieving Manager, Employer Services) and Ms Postlethwaite to inform them of the circumstances. This meeting resolved that Mr Witherdin would undertake a review of SCADA, AOMS and overtime records back to 30 June 2003.

31 Mr Davidson was invited to a meeting with Management representatives on 20 August 2003. He was informed that the meeting concerned problems with overtime claims and that he would not be required to answer any questions at this meeting "although it is a serious matter". Mr Davidson was informed that he could have a witness present.

32 At this meeting Mr Davidson was provided with a document setting out details of ten overtime claims requiring explanation (Att. 4 to Ex 10). Mr Davidson was suspended on full pay and advised that he should seek appropriate advice.

33 A detailed written response was provided by the ASU on behalf of Mr Davidson on 22 August 2003 (Att.2 to Ex 1).

34 The Union contends that Jobs No 26959, 26960 and 26963 are resolved issues, putting that these and all other claims are valid and consistent with policy. The Union notes that from 4 July 2003 Mr Davidson worked 109 jobs and been absent on various forms of leave for seven working days in the relevant period.

35 This response by the Union on behalf of Mr Davidson was subject to further detailed investigation and discussion between the parties. Subsequent to this process six specific allegations of improper claims for overtime were put to Mr Davidson in writing on 29 August 2003.

36 Mr Hinchy's evidence is that the six specific allegations were based on incidences where sufficient evidence was available at the time. Mr Hinchy deposed that sufficient evidence did not exist in respect to other matters, however Mr Davidson and the Union were advised that the investigation was ongoing.

37 A written response to the six specific allegations was received from Mr Davidson on 4 September 2003.

38 The six specific allegations upon which the decision to terminate Mr Davidson's employment was taken are set out in the correspondence of 29 August 2003 (Att. 6 to Ex 10).

39 A further written response was received from the Union on behalf of Mr Davidson in respect to these six matters. Attached to these explanations is a plea by the Union that Mr Davisdon's length of unblemished service and contribution to the HWC be taken into consideration, as well as personal difficulties associated with a long illness and the passing of his father in the months preceding the events giving rise to the allegations.

40 All of the information then available to the HWC (and the Union on behalf of Mr Davidson) was subject to further detailed investigation and analysis by Ms Postlethwaite (whose report is found as Annexure 8 to Ex 10, Mr Hinchy's affidavit) and in her own evidence (Ex 9).

41 Ms Postlethwaite's report acknowledges that each of the jobs identified in the allegations are legitimate priority 1 breakdown jobs, or priority 2 breakdown jobs arising at the weekend, and as such covered by a blanket authorisation to work continuous overtime, or are authorised by dispatch under clear guidelines. Ms Postlethwaite notes that: "The issue of the allegations goes to whether Mr Davidson's claimed involvement actually occurred and if so whether is was appropriate and in accordance with the authorisation policy".

42 The relevant detail of Ms Postlethwaite's report is set out below.

Job Details s Priority 1 breakdown. Telemetry Fault. s Allocated to Mr Davidson at 9.42am s Time booked by Mr Davidson 3pm to 5.30pm - 2.5 hours of which 2 hours is overtime.

Why did the claim initially appear suspicious? This Priority 1 job was logged at 9.42 am. It was not clear why response to the job had been delayed well beyond the 2 hour response target until 3pm resulting in an overtime payment, particularly when, in the interim period, Mr Davidson had worked on lower priority jobs.

Mr Davidson's Initial Responses s First Written (22 August) o He was contacted by Dispatch at approximately 10am in the morning o He instructed Dispatch to monitor and the fault cleared so he did not attend the job o He visited the site around 3pm as he lives in the area o He removed a length of chain from the antennae o Poll and error counts were checked on SCADA

s Interview (22 August) o "My records show I was there around 3pm" o "There was a bit of chain around the antennae which I removed and left it at that"

Relevant Evidence Obtained s Mr Davidson's mobile phone records show him making a call via New Lambton mobile base at 3.28pm. s Mobile base station access between Newcastle and Medowie was tested by Manager Compliance and Review. In the Medowie area connection occurred only via Salt Ash and Raymond Terrace mobile bases. s The Medowie site was visited by Manager Compliance and Review. The antennae is placed low on the building and potentially would require access by a low step ladder to clear a chain wrapped around it. s SCADA log in records were checked and show no log in by Mr Davidson on that day. s Mr Davidson's home is very close to the Medowie site. Within 2 to 3 minutes drive.

Mr Davidson's Subsequent Written Response s He must have been in transit from Lambton to Medowie at approximately 3.30pm s He had to travel to his home to obtain a ladder in order to remove the chain from the antennae. s Time booked to the job was warranted on the basis of "travel times and time taken to complete the work in failing light".

Analysis s On the basis that the fault had cleared early in the day, it is legitimate that Mr Davidson did not attend on site within the required response time. s Given that the fault had cleared in the morning it was not necessary to subsequently attend the site, however, on the basis that the site was very close to his home, it is not unreasonable that Mr Davidson may have elected to drop in on his way home to double check. s It is not possible to confirm whether Mr Davidson did or did not actually attend on site at Medowie. s Mr Davidson's description of events changed when confronted with the evidence of his mobile phone records and in response to the claim put to him that he had booked an excessive amount of time to the job o The time on which he was on site changed from 3 pm to an unspecified later time o He did not initially mention the need to return to his house to obtain a ladder

s If we accept this revised description of events the approximate time spent on the job would be reduced from 2.5 hours to a minimum 1 hour (allowing 30 minutes travel from New Lambton at 3.30pm to Medowie and 15 minutes for a round trip visit to collect a ladder). Having visited the site and taken into account Mr Davidson's description of removing the chain from the antennae, 1 hour would still appear to be an excessive amount of time. s The SCADA logs for 4 July do not support the claim that poll and error counts were checked

Finding That on the balance of probability Mr Davidson's claim of 2 hours overtime on job 26512 is excessive and not an honest reflection of any time which may have actually been worked on the job.

Job Details s Priority 1 breakdown. Telemetry Fault. s Allocated to Robert Rogers at 5.02pm. Passed from Robert Rogers to Joe Wise via mobile phone at 5.03pm. Attended on site by Joe Wise from approximately 6pm. s Time booked by Mr Davidson 5pm to 7pm

Why did the claim initially appear suspicious? The AOMS Job Details sheet shows three people associated with this job which appeared unusual given the nature of the fault. Mr Davidson claimed call support for two hours from the time of the original alarm, but was not shown in AOMS as the contact person.

Mr Davidson's Initial Responses s First Written (22 August) o He had installed equipment at the site earlier that day and deliberately left the radio data cable unplugged so as not to cause interference with other sites o He had instructed Dispatch to not log any jobs for the site as it was not fully commissioned o He was at home modifying the RTU database for the site and rectifying link problems on SCADA o The electrician on the job was attempting to contact him whilst he was on SCADA and left messages on his phone. s Interview (22 August) o The equipment installation work was "pretty well completed but I had to do some work on the SCADA and some work on the database so I instructed Dispatch not to log any jobs" o Joe Wise "was trying to ring me with messages on my mobile phone when I was on the SCADA doing database work for that site so he could recommission it the-next day" o "I got involved when I got a message on my phone that there was a problem out there" o Joe Wise "was ringing my home number when I was on (SCADA). I've only got one phone line"

Relevant Evidence Obtained s Network logs show Mr Davidson logged on to the HWC network at 6.07pm. There is no log information regarding the corresponding log out time. s SCADA logs show Mr Davidson logged in from 6.06pm to 6.38pm, a total of 32 minutes s Mobile phone records for Mr Wise show a single connected call to Mr Davidson's mobile phone number at 6.23pm. This call was routed directly through to Messagebank and a message of approximately 28 seconds duration was left. s Mr Davidson's mobile phone records were reviewed and confirm the incoming message from Mr Wise. The records show that Mr Davidson did not clear his mobile phone messages until 7.46am the next day.

Mr Davidson's Subsequent Written Response s "I did not speak to Mr Wise until the next day as indicated by phone records" s "His number was in my call register and I knew the job had been allocated to Mr Wise whilst accessing AOMS" s "I modified SCADA diagrams and RTU points and also marked up schematic diagrams for this site and used 26617 to cover my time worked" s "I did not consider there to be any impropriety on my behalf as the work I did was necessary to commission the site. The job was a priority 1 and worked on the same day of issue" s "If Dispatch had followed my instructions no job would have been logged and the work I carried out would have been done in my own time that night for the next day's commissioning as is the case on many occasions."

Analysis s It is not possible to confirm whether or not Mr Davidson was carrying out the work as described between 5pm and 7pm, however, network and system logs indicate that he spent at least some of that time (from approximately 6.06pm) logged on to HWC systems. s Mr Davidson's description of events regarding calls from Joe Wise was not consistent with the phone evidence and changed when confronted with that evidence. o There was only a single message from Mr Wise, not multiple messages o He initially claimed that receipt of messages from Mr Wise was the trigger for his "involvement on the job", however, the message was not accessed until the next day o Mr Davidson's subsequent claim that he had checked his mobile phone handset call register and saw a call from Mr Wise is possible, but it is not plausible to believe that having done so he would not then listen to the message left by Mr Wise. s Mr Davidson clearly describes the work which he was undertaking as related to the commissioning of new equipment at the site. Such work is not breakdown work and as such is specifically subject to the memo of 8 March 2002 requiring pre-authorisation. s Mr Davidson clearly states that he was aware that there was not a genuine breakdown situation at the site and instructed Dispatch to this end. s Mr Davidson clearly states that in the normal course of events he would not be paid for the commissioning work he was carrying out.

Finding That Mr Davidson's claim for 2 hours overtime on job 26617 is in breach of the relevant policy which states that prior approval is required for non-contract, miscellaneous or scheduled maintenance works (Operations Manager memo of 8 March 2002, addressed to Mr Davidson). No pre-authorisation was sought for the work claimed to have been performed.

The claim constitutes a deliberate action to obtain a payment to which Mr Davidson was not entitled, on the basis that any work which may have been performed was for commissioning purposes and not done in response to the Priority 1 breakdown job against which it was charged.

Job Details s Priority 1 breakdown. Wet Well High Alarm. Both Pumps Failed. PDS500 replaced. s Allocated to Jamie Watts at 3.33pm. Attended on site by Jamie Watts (from approximately 3.45pm) and Joe Wise (from approximately 4.30pm). s Time booked by Mr Davidson 3.30pm to 6pm Why did the claim initially appear suspicious? The AOMS Job Details sheet shows three people associated with this job on site which appeared unusual. Mr Davidson's claimed time began before the job was logged and extended beyond both of the other two people on the job.

Mr Davidson's Initial Responses s First Written (22 August) o I recall Dispatch mentioning the job when calling off a previous job o I had other work at Morisset radio base so went to assist if required o I was not aware two other staff were in attendance at the time of my departure o I was not required as the problem was corrected o I went to Morisset HLT and checked the base antennae, fitted base labels and left

s Interview (22 August) o "I recall them telling me that there was a problem down at Cooranbong and I had a couple of things I wanted to do at Morisset radio base anyway so I thought I'd go down and have a look in case they needed a hand" o "I never ended up getting there because I think I heard on the two way or phone or something that the job was finished" o Mr Davidson agreed that there was no breakdown job for the Morisset work and stated "well its just a follow up thing... I might have been there ages ago to do something and I might say I'll come back and look at that" o "I initiated to go down there to do the work then I did some other work at Morisset base... so put time down to cover that time"

Relevant Evidence Obtained s Mr Davidson's mobile phone records for 14 July indicate that he spent the afternoon in the area of Mayfield, which is not consistent with his AOMS time entries showing him at Cameron Park that afternoon. Note : this discrepancy has never been put to Mr Davidson for response.) s There were no calls made to Dispatch from Mr Davidson's mobile phone that day. s The last call initiated was at 2.34pm ie one hour prior to the alarm for job 26678.

Mr Davidson's Subsequent Written Response s "The Morisset HLT base is an integral part of the Cooranbong system… Although I did not attend the site for which the job had been logged, it is not unusual for site failures to be due to base problems..."

Analysis s With regard to Mr Davidson's awareness of the existence of the breakdown at Cooranbong o He did not have mobile phone contact with Dispatch at any time after the alarm was raised for the job at 3.30pm o It is possible that he may have heard about 26678 when calling off another job via the two way radio, however, if so this could only have been at some stage after 3.30pm s There was no request from either Dispatch or the other people on the job for Mr Davidson to be involved in job 26678. s Mr Davidson's rationale for his involvement changed over the course of his responses. o Initially he had other work in the area and thought he would drop in to help. o In his written response of 4 September he claims that the visit to Morisset was directly related to the breakdown job. s With regard to the nature of the work which he claimed to have performed at Morisset o Mr Davidson initially described it as "other work". As such it was not breakdown related and therefore would have been required to have been pre-authorised for overtime. o Mr Davidson subsequently changed his response to indicate that the work was related to the breakdown job in that the Morisset radio base may have been causing the Cooranbong failure. This claim is not plausible when considered within the context of the nature of the breakdown at Cooranbong. Both pumps had failed due to a Programmable Logic Control (PLC) problem which is not consistent with a possible communication failure at Morisset base. If a communications problem had occurred, it is also likely that failures would have been more widespread across other assets in that radio base area. o This inconsistency casts further doubt on whether Mr Davidson was actually aware of the circumstances of the Cooranbong breakdown which presumably he would have been in the event of discussing it with the Dispatch operator when calling off his earlier job as he has claimed. s It is not possible to confirm whether or not Mr Davidson actually travelled to Morisset and performed the work he has described. However, even if he did do so, on the balance of probabilities the work was not directly related to the Cooranbong breakdown and was not the subject of any other breakdown job. As such it was not appropriately authorised. s On the basis of allowing for travel time to and from Morisset Mr Davidson would have arrived at Morisset at approximately 4pm and left at approximately 5pm to return to Medowie. This timing is not consistent with Mr Davidson's claim that he heard on the way to Cooranbong that "the job was finished" as the job remained in progress until well after 4.30pm. s In terms of general credibility of his responses - o He did not attend on site and had no contact with either of the two employees who did attend on site. o He has not claimed to have informed Dispatch of his involvement and there is no evidence to indicate that he did advise them. o The information which he has provided regarding the timing of his awareness of the start and finish of the job are not consistent with the actual timing of the job. o His rationale for becoming involved and the description of that involvement changed over the course of his responses.

Finding That Mr Davidson's claim for 2.5 hours overtime on job 26678 is in breach of the relevant policy which states that prior approval is required for non-contract, miscellaneous or scheduled maintenance works (Operations Manager memo of 8 March 2002, addressed to Mr Davidson). No pre-authorisation was sought for the work claimed to have been performed.

Job Details s Priority 1 breakdown. Link 9 Telemetry fault. s Allocated to Jeff Davidson at 8.03am. s Time booked by Mr Davidson 12noon to 2pm and 8pm to 11.59pm

Why did the claim initially appear suspicious? Given that it was a Priority 1 job which had been worked on and presumably cleared earlier in the day it was unclear on what basis there was a need for a subsequent callout at 8pm at night.

Mr Davidson's Initial Responses s First Written (22 August) o All sites returned to normal during the day. o My diary records show Dispatch called approx 20.00hr o I drove to the area monitoring the base with my radio test equipment o I instructed Dispatch not to log further jobs until the next day. o Returned home at approx 22.30hr

s Interview (22 August) o "my records say that I got a phone call around 8 to say that there were other failures" o "...couldn't see anything too obvious so told them not to log anymore jobs" o Mr Davidson explained that he had not travelled to Gan Gan base but did have to drive out of his area to Paul's Corner to monitor the radio links because "my area's not very good for that"

Relevant Evidence Obtained s Mr Davidson's mobile phone records for 15 July show no calls made to Dispatch on that evening s After Hours Dispatch / Control Centre call logs have been reviewed for all calls made to and from Mr Davidson's mobile phone and his home telephone number. There are no calls to or from either of those numbers on the evening of 15 July.

Mr Davidson's Subsequent Written Response s Mr Davidson indicates that he was responding to a fault from earlier in the day which had reoccurred s "Contact with Dispatch may have been by two-way radio" s "My follow up response may have been as a result of radio link monitoring when returning home from Newcastle"

Analysis s There is no evidence to indicate that a fault did re-occur on the evening of the 15th. SCADA alarm logs for Link 9 have been reviewed. They show the alarms earlier in the day between 6.27am and 7.43am and no subsequent alarm activity at all on that day. s Although it is possible that contact with Dispatch may have occurred via two way this is not consistent with Mr Davidson's initial description of events, nor with the usual practice of contacting Mr Davidson via telephone. s It is not possible to confirm whether or not Mr Davidson actually performed the work as described. However, in the absence of a fault re-occurrence and any confirmable contact from Dispatch the work claimed to have been undertaken would have been of an investigatory nature not a breakdown job and therefore was not covered by the authorisation of the original Priority 1 job. If the work was performed it was not properly pre-authorised.

Finding That Mr Davidson's claim for 4 hours overtime on job 26684 is in breach of the relevant policy which states that prior approval is required for non-contract, miscellaneous or scheduled maintenance works (Operations Manager memo of 8 March 2002, addressed to Mr Davidson).

The claim constitutes a deliberate action to obtain a payment to which Mr Davidson was not entitled, on the basis that any work which may have been performed was carried out in the absence of a specific fault situation or a legitimate request to carry out the work and as such was not done in response to the Priority 1 breakdown job against which it was charged.

Job Details Priority 1 breakdowns. s 26959 allocated to Mr Davidson at 3.12pm s 26960 allocated to Mr Davidson at 3.13pm s 26963 allocated to Mr Davidson at time unknown but believed to be approximately 4.20pm s Time booked by Mr Davidson 4.30pm to 7.30pm

NB These three claims were disallowed by Mr David Witherdin, Operations Engineer, when reviewing and authorising the overtime claim for the relevant period. Mr Davidson has not received payment for these claims.

Why did the claim initially appear suspicious? AOMS records indicated that Mr Davidson had provided call support for these jobs and that they had been allocated to him and addressed at times not consistent with his overtime claims. Mr Witherdin subsequently discussed the claims with Mr Davidson and advised him that they would not be approved.

Comments Made at Interview 22 August by Mr Davidson Mr Davidson was not specifically questioned in relation to these three jobs on 22 August, however, he did mention them when responding to questions about another job for which overtime had been claimed on the same day. That job (26956) has an overtime claim for call support from 3.30pm to 4.30pm. Mr Davidson was in the workshop at Tomago at that time. s "I had other jobs in that time which I booked some time consecutively. And that's what David pulled me up for that." s "I was looking at the SCADA ... in the meantime I was getting another four jobs or three jobs and I had to have one allocated ... that was the job for Redhead there was a job for Swansea and there was a Macquarie Hills job that I had to get created. So I logged four jobs in that period of time."

Mr Davidson's Written Response 4 September Mr Davidson did not provide any further information regarding the detail of these jobs in his written response. His response focussed on his understanding of the authorisation process.

Analysis s Mr Davidson has made it clear that he believes that he did not receive notification on jobs 26959 or 26960 prior to 3.30pm, as AOMS indicates. However, his responses at interview on 22 August indicate that even if the calls had been received and handled after 3.30pm rather than before 3.30pm, they were still received and handled within the period prior to 4.30pm, which was already covered by the overtime payment for job 26956.

Finding That the overtime claims for jobs 26959, 26960 and 26963 constitute a breach of the overtime payment policy for Call Support (under which calls within the initial 1 hour period are covered by the initial 1 hour payment), in that they claim multiple additional 1 hour payments for work performed during periods covered by either normal time or by an initial overtime payment for an earlier call support job.

Job Details s Priority 1 breakdown. Telemetry Fault. s Allocated to Terry Hughes at approximately 12.45pm. Call support provided by Mr Hughes for approximately 3 hours. Fault self corrected at 3.45pm s Time booked by Mr Davidson 2pm to 5pm - 3 hours worked for 4 hours overtime payment

Why did the claim initially appear suspicious? In reviewing Mr Hughes' overtime claim for the relevant period Mr Witherdin noticed that it included time for job 27100 which had also been separately claimed by Jeff Davidson. Mr Witherdin subsequently remarked to Mr Hughes that the job must have been complicated given that two supervisors, himself and Mr Davidson, were involved. Mr Hughes responded that Mr Davidson had not been involved in the job.

Mr Davidson's Initial Responses s First Written (22 August) o I noticed Charlestown link 17 was experiencing noise problems on Sunday. I attended Newcastle #10 to inspect the antennae which appeared normal.. I was going to Charlestown base site when the interference ceased. o I was not contacted by Dispatch although I noticed 27100 had been raised later that day when logged onto SCADA. I used this number to cover time worked. o My diary indicates …. further SCADA that night approximately 18.00 to 19.30hr" • Interview (22 August) o "I wasn't aware that there was any job logged" o "Normally I wouldn't have booked any time to a job like that but later on that night I seen that there was a job already created so I booked some time on that to cover the time that I was out" o "...if my vehicle's at home I can monitor that sort of stuff .... I did hear noise on that in the morning and I heard it again in the afternoon" o Mr Davidson confirmed that he was not contacted by Dispatch in relation to this job.

Relevant Evidence Obtained s Verbal response from Terry Hughes that Mr Davidson did not work on the job. Written Statement from Terry Hughes confirming his actions on job 27100 and that to his knowledge there were no other people involved. s Verbal advice from Louise Benson (Dispatch Operator) to David Witherdin that she had no contact with Mr Davidson in relation to this job and that to her knowledge he was not involved. s SCADA logs were reviewed and show Mr Davidson logged in from 5.46pm to 5.54pm, a total of 8 minutes. s AOMS logs indicate that Mr Davidson allocated himself to the job at approximately 5.06pm. s The AOMS Job Details are unusual for this job in that they do not show the allocation of Terry Hughes to the job as is the standard practice. It appears that the Dispatch Operator may have overlooked this task when dealing with Mr Hughes on the job.

Mr Davidson's Subsequent Written Response s ... personnel often follow up re-occurring faults.... s ... I did not consider investigating this failure to be an improper action..." s I had no intention of claiming payment at the time of my decision to investigate. s I have checked other re-occurring system failures in the past without claiming payments

Analysis s There was no request from either Dispatch or the other people on the job for Mr Davidson to be involved. s It is not possible to confirm whether Mr Davidson undertook the monitoring work or visit to Newcastle which he described. s Mr Davidson claims to have worked on SCADA in the period 6pm to 7.30pm. SCADA records do not support this claim. They show him logged in for an 8 minute period from 5.46 to 5.54pm. AOMS logs show Mr Davidson logged in for a period of approximately 3 minutes shortly after 5pm. s Mr Davidson states that on his own volitation he undertook some general investigation work and clearly indicates that this occurred in the absence of any knowledge of a specific fault at Silver Ridge. o As such, this work was of a general maintenance nature and not directly resulting from the fault at Silver Ridge. s Mr Davidson has stated that he heard noise on the radio link that Sunday morning. On the basis of his advice in relation to job 26684 Gan Gan, that would have necessitated him driving out of his area to conduct testing. He did not mention this at any stage, but rather stated that "at home" he can "monitor that sort of stuff"'

Finding That Mr Davidson's claim for 4 hours overtime on job 27100 is in breach of the relevant policy which states that prior approval is required for non--contract, miscellaneous or scheduled maintenance works (Operations Manager memo of 8 March 2002, addressed to Mr Davidson). No pre--authorisation was sought for the work claimed to have been performed.

The claim constitutes a deliberate action to obtain a payment to which Mr Davidson was not entitled, on the basis that any work which may have been performed was for non-breakdown purposes. It was carried out in the absence of a specific fault situation or a legitimate request to carry out the work and as such was not done in response to the Priority 1 breakdown job against which it was charged.

43 In the course of his evidence in chief Mr Davidson relied upon explanations previously given to the respondent in writing by the Union on his behalf. Mr Davidson denied that he had knowingly or deliberately claimed overtime payments to which he was not entitled.

44 In respect to Job No 26617 - Dora Creek, Mr Davidson maintained that he undertook work from home on that job from 5pm to 7pm. Under close cross examination Mr Davidson put that this was commissioning work and that he charged the time to the priority 1 breakdown job allocated to Mr Wise. Mr Davidson maintained that he did not speak to Mr Wise or access the message, putting that he saw Joe Wise come up on his call register and knew what the call would be about.

45 In respect to Job No 26678 - Cooranbong, Mr Davidson deposed that he heard about the job in general conversation with Dispatch, conceding that it had not been allocated to him. At p64 of transcript Mr Warren questions Mr Davidson is respect to this job: Q … … and they didn't say we need your assistance down at Cooranbong did they? A: They said there's a problem down at Cooranbong, there's an electrician going down there. Q: Right, already allocated Mr Watts. A: Mr Watts didn't attend. Q: I see. A: I believe Mr Wise --- Q: You didn't attend either did you? A: I did - I didn't attend that particular site no. Q: No, no. A: But I intended to. Q: But you didn't attend the site did you? A: No but my intention was to go there. Q: I see. You didn't attend, it wasn't allocated to you, and yet you booked from 3.30 to 6.00pm overtime for it didn't you? A: That's correct. And further at pp 66 and 67: Q: I see. But you agree you didn't even go to the site. A: I went - I was intending to go to the site, but when I heard the alarm had self corrected I went to the mobile radio base at Morisset High Level Tank. Q: I see. A: Which is part of that system. Q: I see. A: That was the explanation I offered to the Hunter Water regarding my involvement. Q: And even though you didn't go to the site, even though it wasn't allocated to you, you booked over time for it? A: That's correct, cause my intention was to go to the site. Q: I see so if you intend to work overtime you book overtime? A: My intention was to go to that site. Q: I suggest to you you have no right to claim overtime for work you just intended to do. A: Well I submitted that claim to my supervisor for approval, based on what I'm telling you. Q: And when you gave it to your supervisor did you say I didn't work this time but gee I intended to. A: No I just submitted a claim like I normally would. Q: Yes you just submitted your claim. And you were paid it weren't you? A: I believe I was yes. CONSIDERATION 46 The evidence reveals a thorough and detailed approach to investigation of the matter by the respondent with due notice to the applicant and every opportunity afforded to him for representation and access to relevant information from SCADA logs, AOMS logs, telephone records, and such other material as he may have required. There is no absence of procedural fairness to be found within this matter.

47 There is no evidence to support any requirement to attend the Morriset Base Station.

48 There is nothing in the evidence or cross examination of Mr Davidson which diminishes or detracts from the validity of Ms Postlethwaite's analysis and conclusions.

49 The evidence, in particular the cross examination of Mr Davidson, establishes that he was properly informed of the overtime policy and procedures for its application and failed to do so.

50 Strenuous submission by Ms Milson, supported by established principles found in Four Sons Pty Limited v Sakchai Limsiripothong [2000] NSWIRComm 38 and Lorenzato and Sydney Water Corporation [2002] NSWIRComm 277 (referred to by Ms Milson) are of assistance; however, in consideration of the facts of this case the gravamen of the instant matter is the factual content and the conduct of the applicant. Ms Milson quite properly did not raise the issue of warning to the applicant. The applicable principle is found in the a decision of the Full Bench of the Commission in Electricity Commission of New South Wales t/a Pacific Power v Nieass and Others (1995) 81 IR 46 in the following terms: In industrial circumstances as in other avenues of life an employee or an employer must be taken to be aware of the natural and probably consequences of their actions. However, we reject as industrially inappropriate any notion that adult, responsible and senior employees are entitled to a warning that they might be dismissed if they continue to misconduct themselves within employment, dishonestly. No employee of ordinary understanding and certainly not employees of mature age, substantial classification and seniority, need to be told that if they deal dishonestly with their employer they may be dismissed, any more than they need to be told that they should be careful in crossing the street.

51 Ms Milson contends that a case of "wilful misconduct" has not been established.

52 On analysis of the evidence, the only available conclusion is that the allegations put by the HWC are made out. The applicant acted in a deliberate, wilful and consistent manner, resulting in benefit not properly due. Mitigating circumstances do not, in my view, outweigh the substance of misconduct.

53 I find the termination of the applicant's employment is not harsh, unreasonable or unjust and accordingly decline to intervene.

54 Matter No RIC 5277 of 2003 is so concluded. oo0oo

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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