Worker believed he was protecting colleagues but FWC finds dismissal was justified
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application brought by an electrician who was summarily dismissed after shutting down power generators despite being directed not to do so by management.
The worker argued he had legitimate safety concerns about electrical testing and was acting within his rights as a health and safety representative when he isolated the generators.
Meanwhile, the employer argued the worker had deliberately defied lawful instructions and acted without sufficient justification.
The worker was employed as an electrician grade 6 on a large construction project involving two gas turbines at Loxford in the Hunter Valley of New South Wales.
The project employed around 500 workers from the engineering company, with approximately 850 workers in total across all contractors. The worker also served as an elected health and safety representative for the electrical and instrumentation team on day shift.
The incident began when a union organiser from the Electrical Trades Union exercised his right of entry to the site on 27 June 2024. The organiser had previously attended the site requesting earth testing results and had been involved in addressing over 40 improvement notices issued by SafeWork NSW to the employer between June 2023 and July 2024.
During the morning inspection, the organiser requested earth testing results and installation test results for works that needed to comply with Australian electrical safety standards.
The employer's electrical supervisor provided some documentation, but the organiser noted missing items including earth continuity test results for distribution switchboards and construction wiring.
The worker issued three formal safety notices throughout the morning, with the final notice at 10:50am alleging the employer had "failed to ensure that mandatory testing of main earth continuity for main compound and stores installation prior to energisation" according to the relevant Australian standards.
Despite giving the employer until 5 July 2024 to comply with the notice, the worker shut down the generators approximately 25 minutes later at 11:15am.
The employer's representatives, including the electrical and instrumentation project manager and superintendent, responded by indicating they had Certificates of Compliance for Electrical Work available.
The electrical and instrumentation superintendent gave evidence that he "asked them not to turn off the generator" and the project manager testified that he "asked them not to turn the generators off" and "questioned whether he was doing things for the right reasons."
When discussions continued about shutting down the generators, multiple management representatives made their opposition clear.
The FWC heard evidence that the union organiser warned management to "shut down computers and save documents" as power would be lost, to which management responded with concerns about the proposed action.
The company's human resources manager ultimately told the worker "you are not shutting it down" when asked whether management had notified the workforce of the outage.
The FWC found this constituted a clear direction, noting: "Any reasonable person would have understood the statement in that way" when the HR manager told the worker he was "not shutting them down."
The evidence given by the electrical and instrumentation project manager and superintendent "as to whether each of them asked [the worker] not to shut down the generators was consistent." The employer argued that the worker had received lawful and reasonable directions not to proceed with the shutdown, which he deliberately ignored.
Despite receiving directions from management not to proceed, the worker shut down the three generators that were synchronised together to provide power to the main compound, including the site office, stores, facilities, first aid room, toilets and nurse call system. The shutdown affected approximately 500 employees and contractors working on the project.
The worker maintained he was acting due to genuine safety concerns about the main earth to neutral connection, a critical electrical safety component.
He had observed some protective paint missing from the main earth electrode and, combined with what he perceived as inadequate test results, believed this indicated potential safety risks.
The worker stated in evidence that he "formed a view that there was either not a main earth neutral connection, or if there was it was seriously compromised."
The FWC found gaps in the worker's knowledge. The worker's evidence showed "suspicions and a belief" rather than actual knowledge, which the worker admitted during questioning.
The worker argued he had rights and obligations under the company's enterprise agreement to shut down the generators. One of them stated that "when an Employee becomes aware of an unsafe situation, the Employee must rectify the situation, if it is within their competence to do so."
Another clause provided that "work shall cease only in areas immediately affected by a reasonable concern and imminent risk to health and safety."
The FWC examined these provisions, finding they required actual awareness of an unsafe situation rather than suspicions or concerns.
The enterprise agreement also contained mechanisms for resolving safety disputes, including provisions for calling upon SafeWork NSW to determine disputes. The FWC found:
"No such inspection took place and [the worker] did not mention the issue with the galvanising paint on the main earth electrode in his discussions with [the electrical and instrumentation project manager] or anyone else from [the employer]." The worker had not used these dispute resolution procedures before taking unilateral action.
The FWC concluded the employer had valid reasons for dismissal, finding the direction not to shut down the generators was both lawful and reasonable.
The FWC determined that compliance certificates were available and would have satisfied the worker's safety concerns if he had waited longer than the 25 minutes between issuing his final notice and shutting down the generators.
The electrical and instrumentation superintendent was attempting to print the certificates when the power went out due to the shutdown.
The FWC noted: "[The electrical and instrumentation superintendent] gave evidence that he went back to the office to print out the [certificates] and while he was in the middle of printing them, the power went out because [the worker] had switched the generators off."
The worker later accepted that the certificates provided after the shutdown "satisfied the third and final [safety notice] issued by him."
The generator shutdown caused serious consequences, including loss of power to critical facilities and compromising the site's "emergency evacuation communication protocols across the site, including sirens, radios and PA systems."
The FWC acknowledged the worker's good faith intentions, stating: "I accept that this was an isolated incident of misconduct and [the worker] was acting in good faith in the sense that he had a genuine concern."
However, the FWC found the worker's "conduct was of such a grave nature as to be repugnant to the employment relationship." After examining all factors under section 387 of the Fair Work Act 2009, the FWC concluded the employer's "dismissal of [the worker] was not harsh, unjust or unreasonable" and dismissed the unfair dismissal application.
