The company's drawn-out investigation wasn't enough to protect his claim
A 71-year-old power station worker with over 50 years of service lost his unfair dismissal bid despite a 20-month investigation delay.
The Fair Work Commission ruled on 22 January 2026 that AGL Energy Limited had valid grounds to terminate John Scully for serious safety misconduct, even as the tribunal took the company to task for its drawn-out disciplinary process.
The case offers a striking reminder for HR professionals: procedural missteps do not automatically undo a dismissal when the underlying misconduct is serious enough.
Scully worked as an Assistant Unit Controller at the Loy Yang A power station in Victoria's La Trobe Valley. On 24 July 2023, he allegedly racked a high voltage circuit breaker past the test/isolate position without wearing the required arc flash protective equipment. A colleague who witnessed the incident, Mr Brown, later described it as "one of the more dangerous things I had seen or experienced that was in our control."
What followed was an investigation that moved at a glacial pace. AGL did not formally commence its inquiry until 8 April 2024, when Scully returned from extended leave – more than eight months after the incident. The termination letter did not arrive until 27 March 2025.
The company's Head of People and Culture, Ms Van Der Merwe, acknowledged the delay fell short of expectations. She told the Commission that the manager responsible "was counselled by myself of the inappropriateness of leaving a matter so serious unresolved."
The investigator, Mr Jilbert, also conceded under cross-examination that he had been concerned about the elapsed time and accepted that prolonged investigations can disadvantage those accused of misconduct.
Yet Commissioner Clarke ultimately sided with the employer. The Commissioner found that Scully "did not present as a credible witness" and that his evidence was "at times evasive, defensive, rambling and inconsistent." Critically, Scully had been aware since August 2023 that concerns had been raised about his conduct, which meant the delay did not materially prejudice his ability to respond.
The Commissioner also noted that Scully showed no contrition throughout the process. He made inappropriate comments during the investigation, including referring to management as "senior mismanagement" and levelling allegations of corruption.
Drawing on the Full Bench decision in Farquharson v Qantas Airways, Commissioner Clarke observed that once misconduct is established after a full hearing, "it will be rare for a defect in an internal disciplinary process" to render the termination unfair.
Scully commenced his career with the State Electricity Commission of Victoria in 1971 at age 17, more than a decade before Loy Yang A became operational. He described his employment as "a great source of life meaning." His dismissal also affected his defined benefit superannuation pension, which was calculated partly on years of service and final salary.
The application was dismissed.
