APPLICATION FOR AN ORDER IN RELATION TO ENGAGING IN OR INDUCING DISCRIMINATORY OR COERCIVE CONDUCT PURSUANT TO SECTION 112 OF THE WORK HEALTH AND SAFETY ACT 2020

THE WORK HEALTH AND SAFETY TRIBUNAL

CITATION : 2024 WAIRC 00782

CORAM : Commissioner T Emmanuel

HEARD : Monday, 27 May 2024, Tuesday, 28 May 2024,  Wednesday, 29 May 2024 & Thursday, 30 May 2024

DELIVERED : TUESDAY, 27 AUGUST 2024

FILE NO. : WHST 8 OF 2023

BETWEEN : Justin Simmonds

Applicant

AND

Electricity Networks Corporation t/a Western Power

Respondent

CatchWords : Work Health and Safety Tribunal - Whether the applicant was discriminated against for a prohibited reason (raising an issue or concern about work health and safety) - Whether placing the applicant on a performance improvement plan was discriminatory conduct - Performance improvement plan not discriminatory conduct but discriminatory conduct did include dismissal - Discriminatory conduct not for a prohibited reason - Application dismissed

Legislation :  Industrial Relations Act 1979 (WA): s 26(1)(a) & s 26(1)(b)

  Electricity (Network Safety) Regulations 2015 (WA): reg 24

  Surveillance Devices Act 1998 (WA)

  Work Health and Safety Act 2020 (WA): s 3(1), s 3(2), s 104, s 105, s 106, s 106(h), s 112, s 113, s 113(2) & cl 29(1) of Sch 1

Result : Application dismissed

Representation:

Applicant : In person

Respondent : Ms H Millar (of counsel)

Cases referred to in reasons:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor [2012] HCA 32

Browne v Dunn (1893) 6 R 67

Chambers v Commonwealth of Australia (Bureau of Meteorology) [2024] FedCFamC2G 100

Dickson v Downer EDI Works Pty Ltd [2014] FCA 1134

Reasons for Decision

1         Mr Simmonds has made an application under s 112 of the Work Health and Safety Act 2020 (WA) (WHS Act).

2         In effect, Mr Simmonds says that he was the subject of discriminatory conduct for a prohibited reason contrary to s 112 of the WHS Act. He says that after he raised an issue or concern about work health and safety, Western Power took discriminatory action against him by putting him on a performance plan and dismissing him.

3         Fundamentally, the parties are in dispute about why Western Power took the action against Mr Simmonds.

4         Western Power accepts that dismissing Mr Simmonds amounts to discriminatory conduct under the WHS Act, but it says that the reasons why it put Mr Simmonds on a performance improvement plan and dismissed him did not include the fact that Mr Simmonds had raised an issue or concern about work health and safety. Western Power says that this is ‘just a case about misconduct, about an employee who didn’t follow the rules and got fired by his employer.’

Questions to be decided

5         To resolve this matter, the Tribunal must decide:

a) Did Mr Simmonds raise an issue or concern about work health and safety?

b) Did Western Power engage in discriminatory conduct?

c) Was any discriminatory conduct engaged in for a prohibited reason?

d) What, if any, orders should the Tribunal make?

Background

6         Having worked for Western Power from 2004 to 2016, Mr Simmonds started employment with Western Power as a Safety Operations Business Partner on 15 December 2022. His contract of employment provided that he had a six-month probationary period.

7         In early January 2023, Mr Simmonds’ line manager, Ms Sophie Silvester (Operations Team Leader) asked him to lead the investigation and to finalise an investigation report into an incident in which members of the public had received electric shocks (Wundowie Report).

8         Western Power had to report to the regulator (Building & Energy, also referred to as B & E) in relation to the incident in Wundowie in accordance with reg 24 of the Electricity (Network Safety) Regulations 2015 (WA):

24. Reporting of notifiable incidents

(1)  Unless the network operator has notified the Director under regulation 23(4) that the network operator is satisfied that the incident is not a notifiable incident, the network operator must —

(a)  prepare a report of the investigation of the incident in accordance with subregulation (2); and

(b)  give the report to the Director within 30 working days after the day on which the incident occurred or any extension of that period the Director, in writing, allows.

Penalty for this subregulation: a fine of $250 000.

(2) The report must —

(a)  be in a form acceptable to the Director; and

(b)  describe the incident; and

(c) identify the cause of the incident or state that the cause of the incident is not known; and

(d)  describe the steps taken to investigate the incident; and

(e)  indicate whether the network operator proposes to revise its safety management system (if one applies to the network) and, if so, how and by when; and

(f) include or be accompanied by the following —

(i)  any photographs, videos, maps or diagrams that the network operator has that are relevant to the incident;

(ii)  any opinions obtained from experts in relation to the incident;

(iii)  the results of any tests conducted to determine the cause of the incident;

(iv)  maintenance records relating to the apparatus involved in the incident;

(v)  any other information that the network operator considers relevant to the investigation of the incident.

[Regulation 24 amended: SL 2021/218 r. 12.]

9         On 7 February 2023, Mr Simmonds met with Ms Suzanne Nesci at 2pm to discuss the Wundowie Report. Ms Nesci was Ms Silvester’s line manager.

10      On 8 February 2023, Ms Silvester sent Mr Simmonds an email telling him that the draft Wundowie Report needed to be approved by Mr Andrew Shaw, Head of Safety, Environment, Quality and Training (SEQT) at Western Power, before it could leave SEQT:

Hey Justin

Let me know when you have updated the report to reflect comments and update [sic] recommendations section to acknowledge current SEQT projects / strategy etc. I will then jump in and have a look.

I think next steps we get Andy across it via a meeting. This will be our best chance to get it across the line as he needs to approve before it can leave SEQT [emphasis added].

Thanks

Sophie Silvester

Operations Team Leader

Safety, Environment, Quality & Training

11      The next day, Mr Simmonds sent a copy of the draft Wundowie Report to Mr Ben Vasiliauskas. Mr Vasiliauskas was Operations East Manager - Operational Maintenance. He worked outside SEQT.

12      On Wednesday 22 February 2023 at 1.31pm, Ms Silvester emailed Mr Simmonds:

Hi Justin

I have spoken to Sue re: our conversations and she is going to chat to Andy re: organising [sic] catch up to go through the report.

In [sic] meantime, in case I didn’t explain properly Sue requested the report be split into the below. She does not want to loose [sic] any of the information contained in the report, however just wants it to be split into the right channels. Reasons below:

1. B&E Report: Outline findings and recommendations that are directly related to the incident and in the B&E requested report format [original emphasis]

2. Lessons learnt register (L3-L5 incidents): Capture all lessons in relation to the incident investigation ie: Timeframes, process etc. Note: We have been doing these for the past few L3-L5 incidents. [original emphasis]

3. SEQT Organisational learning report: Include all findings and recommendations with associated action plan for all recommendations. As discussed many of these report findings we see in part in other incidents. Therefore as part of this report contact [sic] high level analysis of other recent 3-5 incidents and show links to the findings. This will add weight to the findings and recommendations. Report to be disseminated to relevant areas of the business. [original emphasis]

At the moment, Sue does not want the report as it stands to leave SEQT. I will update you if/when this changes. [emphasis added]

I will schedule a meeting for you and Andy ASAP. Stay tuned. Hoping it to be in the next two days.

Thanks for being patient.

Soph

13      Mr Simmonds replied to Ms Silvester’s email within the hour, disputing the need to ‘split’ the Wundowie Report:

Hi Sophie,

Thank you for clarifying Sue’s request in writing. I would also like to clarify my concerns with Sue’s request in writing, expanding on the content within the report that explains and justifies the need to keep the investigation findings within the Investigation Report at the very least.

• ICAM allows for the identification of Organisational Factors, for a good reason, and must be included in the Investigation Report.

• The Investigation Report is just that, a report outlining all findings of the investigation. It must be the source or reference point of any other documents deemed necessary, and the mechanism for such documents to be created.

• Any other analysis, which I am an advocate for, can still be done, however it is crucial that the information from this Investigation Report is presented to Western Power Officers to ensure appropriate action is taken, and to meet their Due Diligence Obligations set out in the Work Health and Safety Act 2020 by taking reasonable steps;

○ to acquire and keep up-to-date knowledge of work health and safety matters, to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations,

○ to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking,

○ to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information,

○ to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under the Act, and

○ to verify the provision and use of the resources and processes mentioned above.

• To meet my/our Duty under the Act to:

○ Take reasonable care that the my [sic] acts or omissions (in this case if I do not speak out) do not adversely affect the health and safety of other persons.

As I point out in the report, the defensiveness shown inadvertently through the need to hide information from the PCBU and its Officers is human nature in which I can truly empathise with. This does however, provide additional weight to the organisational factors and unconscious biases presented in the incident investigation, and my empathy disappears when accountability is not taken.

Kind regards,

Justin Simmonds

Operations Business Partner

Safety, Environment, Quality & Training

14      After liaising with her line manager Ms Nesci and human resources, Ms Silvester replied to Mr Simmonds’ email at 12.31pm on Thursday 23 February 2023:

Hi Justin

We are not trying to minimise the impact of any risk, we are trying to have the information put in the right areas so the issues raised can be dealt with appropriately. Sue does not want any information removed, rather, that it live in the right documentation [emphasis added].

Therefore, I am repeating Sues [sic] direction to please be split into three [emphasis added]:

1. B&E Report: Outline findings and recommendations that are directly related to the incident and in the B&E requested report format - Note this action is complete [original emphasis]

2. Lessons learnt register (L3-L5 incidents): Capture all lessons in relation to the incident investigation ie: Timeframes, process etc. Note: We have been doing these for the past few L3-L5 incidents. [original emphasis]

Timeframe – please do so by COB 3rd March.

3. SEQT Organisational learning report: Include all findings and recommendations with associated action plan for all recommendations. As discussed many of these report findings we see in part in other incidents. Therefore as part of this report contact [sic] high level analysis of other recent 3-5 incidents and show links to the findings. This will add weight to the findings and recommendations. Report to be disseminated to relevant areas of the business after relevant SEQT endorsement has been obtained. [original emphasis]

Timeframe – please provide final draft for my review by close of business 3rd March (or we can discuss a later date if this is not achievable – however really after just the org recommendations that currently sit in the other report ).

Pls confirm by return email your understanding of this direction and your intention to take the required action. [emphasis added]

Thanks

Sophie Silvester

Operations Team Leader

Safety, Environment, Quality & Training

15      At 3.16pm on Thursday 23 February 2023, Mr Simmonds emailed Western Power’s Chief Executive Officer, Mr Sam Barbaro, executives Mr Zane Christmas and Mr Gair Landsborough, and Mr Brett Hovingh (Head of Operational Maintenance – Asset Operations) raising his concerns (Issues Email):

Good afternoon all,

I am writing this to you prior to following other procedures and avenues because:

• I believe I am breaching legislation until I do.

• Failure to do so presents a liability risk for you.

• I believe I am being given instruction that results in a breach of legislation that would present a liability risk for all of us.

• Failure to do so prevents known risks from being managed in a timely manner.

• My experiences with you provide me with the confidence that you will take this seriously and appreciate being informed.

• The new strategy being announced in the very near future will only be as good as the leadership tasked with its implementation, and drastic changes are required within the SEQT function.

I have attached an email chain between myself and my Formal Leader that shows she has been instructed to tell me to retract information from my investigation report to keep our function deficiencies in-house.

I have also attached a PDF of my Incident Investigation Report. You will notice that I changed the approved format, with approval, to resemble an actual report, and the content matches the detail of what a level 5 investigation report should.

I take WHS Legislation and, more importantly, its intent very seriously. Additionally, following company values and those of my own, I will not follow instructions that I feel are unreasonable  or unlawful.

I have identified many Organisational Factors including deficiencies within SEQT and its Management System. For this reason, the approval process is flawed and I feel it imperative that all Officers see unredacted investigation reports and all personnel are made aware of investigation outcomes in a timely manner.

The Organisation Factors were all presented, explained and agreed upon by the SEQT Ops Team Leaders, Area Manager and the Acting HOF at the time.

Prior to me taking over this investigation, it was concluded that our employees were being untruthful, which I was told would result in one’s employment being terminated. I was able to prove otherwise through a thorough investigation. This person was already suffering mental illness and the way the investigation was carried out was nothing short of disgusting.

I would encourage you to discuss this with the person involved, [name omitted] and his formal Leader, [name omitted]. I would also encourage you to talk to Mark Garden, as he was in my investigation team, and Kevin Tully as he was the SEQT Team Leader in charge of the initial investigation.

I am happy to discuss all of the above in detail, including particular sections within the legislation I am referring to.

The report can also be accessed via the following link: [link omitted]

Kind Regards,

Justin Simmonds

Operations Business Partner

Safety, Environment, Quality & Training

16      Meanwhile, having received the Wundowie Report from Mr Simmonds on 9 February 2023, a week later Mr Vasiliauskas emailed the Wundowie Report to Mr Hovingh. Mr Hovingh forwarded that email to Mr Shaw at 8.02am on 23 February 2023, saying:

Hey Andy

As discussed, I think the report needs to be validated before it's approved. It also does not answer the question on the SCT form.

Regards

Brett Hovingh

Head of Operational Maintenance

17      Mr Shaw responded to Mr Hovingh’s email at 8.24am on the same day, 23 February 2023, (around seven hours before Mr Simmonds sent the Issues Email), copying in Ms Nesci, Ms Silvester and Mr Ben Prideaux (who was Operational Senior Workforce Specialist - SEQT), saying:

Hi all,

I'm not happy this has been distributed after requesting it not to leave SEQT. The report still fails to answer if the SCT form is an issue or not and, in my opinion, has wasted valuable resources getting to this point. [emphasis added]

I agree with the functional opportunities to learning and improving incident management but sharing this with the wider business does not provide a unified approach and further hinders are [sic] ability to influence change in an organisation that is trying to mature its safety culture or reduce further incident or injury.

Regards

Andy

18      Mr Barbaro asked Mr Landsborough to investigate Mr Simmonds’ concerns set out in the Issues Email. On 1 March 2023, Mr Landsborough concluded that there had been no attempt to hide information.

First HR Process

19      On 27 February 2023, Western Power stood Mr Simmonds down with pay and sent him a letter (First Allegation Letter) setting out two allegations:

1. On 9 February 2023 Mr Simmonds had emailed the draft Wundowie Report to Mr Vasiliauskas contrary to Ms Silvester’s instructions; and

2. On 22 February 2023 Mr Simmonds acted dishonestly by not informing Ms Silvester that he had already distributed the draft Wundowie Report to someone outside the SEQT function.

20      In late February and early March 2023, Western Power conducted an investigation and Mr Simmonds provided a response to the two allegations. As part of the investigation in the First HR Process, Western Power also identified performance concerns relating to Mr Simmonds and decided that an action plan should be implemented to address those concerns.

21      Having considered Mr Simmonds’ response to the allegations, on 14 March 2023 Western Power (through Mr Shaw) found that allegation one was substantiated and allegation two was not. Western Power gave Mr Simmonds a warning in relation to allegation one and put him on a probation period performance improvement plan (PIP).

22      Mr Simmonds returned to work in his role on 16 March 2023. Mr Shaw decided that Mr Simmonds should report to Mr Steven Armstrong instead of Ms Silvester.

Probation period performance improvement plan

23      Following initial meetings with Mr Shaw and others on 8 and 13 March 2023, on 16 March 2023 Mr Simmonds had a performance discussion meeting with Mr Armstrong and Ms Nesci. He was given the PIP document, which he signed.

24      After some discussion with Mr Simmonds, Western Power agreed to amend the PIP so that Mr Simmonds no longer had to have his emails or meeting invitations reviewed by others. Mr Simmonds signed the amended PIP document on 17 March 2023.

Second HR Process

25      By around 16 March 2023, Western Power considered that Mr Simmonds may have disclosed confidential information to people outside of Western Power.

26      On 3 April 2023, Western Power stood Mr Simmonds down with pay and sent him a letter (Second Allegation Letter) setting out three allegations:

1. When preparing the draft Wundowie Report, Mr Simmonds asked Mr Joseph Crook, a worker engaged by Shodan Electrical, to send confidential material to Mr Simmonds’ personal email address (Allegation 1).

2. On 12 or 13 February 2023, Mr Simmonds shared confidential information with a person identified as ‘Claire’, believed to be Mr Simmonds’ girlfriend, who had no right to access that confidential information (Allegation 2)

3. On 24 occasions between 20 January 2023 and 28 March 2023, Mr Simmonds emailed Western Power’s confidential information to his personal email address (Allegation 3).

27      In April 2023, Western Power conducted an investigation relating to Allegations 1, 2 and 3. Mr Simmonds’ solicitor provided a written response and request for further information in relation to the allegations.

Mr Simmonds’ grievances

28      On 28 March 2023, Mr Simmonds lodged two grievances (Grievances) in which he:

a) appealed against the warning and PIP; and

b) raised bullying complaints against Mr Prideaux, Mr Armstrong, Ms Silvester and Ms Nesci.

29      Mr Matthew Mercer, Human Resources Business Partner, investigated those matters and drafted a grievance investigation report.

30      Mr Simmonds was told at a meeting on 17 April 2023 that Western Power had concluded its investigation into the Grievances, and the Grievances were not substantiated.

Outcome of Second HR Process

31      On 27 April 2023, Western Power sent Mr Simmonds a letter, informing him that all three allegations were substantiated and dismissing him with notice.

Public interest disclosure process

32      On 28 February 2023, after he had been stood down with pay, Mr Simmonds sent a public interest disclosure email (PID) about Mr Shaw, Ms Nesci and Ms Silvester to Western Power’s public interest disclosure email address.

33      On 3 August 2023 Mr Chris Porteous (Senior Forensic Advisory Specialist) wrote to Mr Simmonds and said:

Dear Mr Simmonds,

I refer to your email dated 2 August 2023 regarding the Public Interest Disclosure notification (PID Notification) issued on 28 February 2023, and your subsequent emails of 2 March 2023, 3 March 2023 (6:51am), 3 March 2023 (8:22am) and 3 March 2023 (9:20am). I also refer to my email dated 2 March 2023.

Your substantive PID Notification was detailed in the email dated 28 February 2023 as expanded by your email on 3 March 2023 at 6:51am.

I confirm that the PID Notification was assessed and, due to being vexatious and frivolous, did not require further investigation. This decision was formed on the basis that my assessment of the material and initial inquiries did not identify any instance of misconduct.

With respect to the other matters referenced in your email, I confirm that:

1. the PID Notification is treated confidentially and has remained confidential;

2. I have maintained confidentiality of the PID Notification; and

3. the PID Notification and PID Investigation was not involved in, related to, or relied upon for the purposes of any disciplinary action – these processes were kept independent from each other and at no time impacted the other.

On the basis of the above this matter is considered finalised and closed.

Notwithstanding the completion of this matter, you should note that the confidentiality requirements of the Public Interest Act 2003 continue to apply to you and all other people involved in the disclosure.

Regards

Chris Porteous (MBA)

Senior Forensic Advisory Specialist

Governance & Assurance

Legislative framework

34      This application is the first of its type to be heard under the WHS Act.

35      The objects of the WHS Act are set out in s 3. The WHS Act focusses on securing safety for workers and others in the workplace:

3. Object

(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by —

(a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work; and

(b) providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to work health and safety; and

(c) fostering cooperation and consultation between, and providing for the participation of, the following persons in the formulation and implementation of work health and safety standards to current levels of technical knowledge and development and encouraging those persons to take a constructive role in promoting improvements in work health and safety practices —

(i) workers;

(ii) persons conducting businesses or undertakings;

(iii) unions;

(iv) employer organisations;

and

(d) promoting the provision of advice, information, education and training in relation to work health and safety; and

(e) securing compliance with this Act through effective and appropriate compliance and enforcement measures; and

(f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act; and

(g) providing a framework for continuous improvement and progressively higher standards of work health and safety; and

(h) providing for the formulation of policies, and for the coordination of the administration of laws, relating to work health and safety; and

(i) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in the State.

(2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work as is reasonably practicable.

36      Sections 104, 105, 106, 112 and 113 of the WHS Act are relevant to this matter. They provide:

104. Prohibition on discriminatory conduct

(1) A person must not engage in discriminatory conduct for a prohibited reason.

Penalty for this subsection:

(a) for an individual, a fine of $115 000;

(b) for a body corporate, a fine of $570 000.

(2) A person commits an offence under subsection (1) only if the reason referred to in section 106 was the dominant reason for the discriminatory conduct.

Note for this section:

Civil proceedings may be brought under Division 3 of this Part in relation to discriminatory conduct engaged in for a prohibited reason.

105. What is discriminatory conduct

(1) For the purposes of this Part, a person engages in discriminatory conduct if —

(a) the person —

(i) dismisses a worker; or

(ii) terminates a contract for services with a worker; or

(iii) puts a worker to the worker’s detriment in the engagement of the worker; or

(iv) alters the position of a worker to the worker’s detriment;

or

(b) the person —

(i) refuses or fails to offer to engage a prospective worker; or

(ii) treats a prospective worker less favourably than another prospective worker would be treated in offering terms of engagement;

or

(c) the person terminates a commercial arrangement with another person; or

(d) the person refuses or fails to enter into a commercial arrangement with another person.

(2) For the purposes of this Part, a person also engages in discriminatory conduct if the person organises to take any action referred to in subsection (1) or threatens to organise or take that action.

106. What is a prohibited reason

Conduct referred to in section 105 is engaged in for a prohibited reason if it is engaged in because the worker or prospective worker or the person referred to in section 105(1)(c) or (d) (as the case requires) —

(a) is, has been or proposes to be a health and safety representative or a member of a health and safety committee; or

(b) undertakes, has undertaken or proposes to undertake another role under this Act; or

(c) exercises a power or performs a function, has exercised a power or performed a function or proposes to exercise a power or perform a function as a health and safety representative or as a member of a health and safety committee; or

(d) exercises, has exercised or proposes to exercise a power under this Act or exercises, has exercised or proposes to exercise a power under this Act in a particular way; or

(e) performs, has performed or proposes to perform a function under this Act or performs, has performed or proposes to perform a function under this Act in a particular way; or

(f) refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act or refrains from, has refrained from or proposes to refrain from exercising a power or performing a function under this Act in a particular way; or

(g) assists or has assisted or proposes to assist, or gives or has given or proposes to give any information to, any person exercising a power or performing a function under this Act; or

(h) raises or has raised or proposes to raise an issue or concern about work health and safety with —

(i) the person conducting a business or undertaking; or

(ii) an inspector; or

(iii) a holder of an IR entry authority; or

(iv) a health and safety representative; or

(v) a member of a health and safety committee; or

(vi) another worker; or

(vii) any other person who has a duty under this Act in relation to the matter; or

(viii) any other person exercising a power or performing a function under this Act;

or

(i) is involved in, has been involved in or proposes to be involved in resolving a work health and safety issue under this Act; or

(j) is taking action, has taken action or proposes to take action to seek compliance by any person with any duty or obligation under this Act.

…

112. Civil proceedings in relation to engaging in or inducing discriminatory or coercive conduct

(1) An eligible person may apply to the Tribunal for an order under this section.

(2) The Tribunal may make 1 or more of the orders set out in subsection (3) in relation to a person who has —

(a) engaged in discriminatory conduct for a prohibited reason; or

(b) requested, instructed, induced, encouraged, authorised or assisted another person to engage in discriminatory conduct for a prohibited reason; or

(c) contravened section 108.

(3) For the purposes of subsection (2), the orders that the Tribunal may make are —

(a) in the case of conduct referred to in subsection (2)(a) or (b), an order that the person pay (within a specified period) the compensation to the person who was the subject of the discriminatory conduct that the Tribunal considers appropriate; or

(b) in the case of conduct referred to in subsection (2)(a) in relation to a worker who was or is an employee or prospective employee, an order that —

(i) the worker be reinstated or re‑employed in their former position or, if that position is not available, in a similar position; or

(ii) the prospective worker be employed in the position for which they had applied or a similar position;

or

(c) any other order that the Tribunal considers appropriate.

(4) For the purposes of this section, a person may be found to have engaged in discriminatory conduct for a prohibited reason only if a reason referred to in section 106 was a substantial reason for the conduct.

(5) Nothing in this section is to be construed as limiting any other power of the Tribunal.

(6) For the purposes of this section, each of the following is an eligible person —

(a) a person affected by the contravention;

(b) a person authorised as a representative by a person referred to in paragraph (a).

113. Procedure for civil actions for discriminatory conduct

(1) A proceeding brought under section 112 must be commenced not more than 1 year after the date on which the applicant knew or ought to have known that the cause of action accrued.

(2) In a proceeding under section 112 in relation to conduct referred to in section 112(2)(a) or (b), if a prohibited reason is alleged for discriminatory conduct, that reason is presumed to be a substantial reason for that conduct unless the defendant proves, on the balance of probabilities, that the reason was not a substantial reason for the conduct.

(3) It is a defence to a proceeding under section 112 in relation to conduct referred to in section 112(2)(a) or (b) if the defendant proves that —

(a) the conduct was reasonable in the circumstances; and

(b) a substantial reason for the conduct was to comply with the requirements of this Act or a corresponding WHS law.

(4) To avoid doubt, the burden of proof on the defendant under subsections (2) and (3) is a legal burden of proof.

Conduct of the proceedings

37      Mr Simmonds was unrepresented at the hearing. He had been represented by two different lawyers earlier in the proceedings.

38      The Tribunal must assist an unrepresented party as necessary to ensure a fair and just trial, while respecting the rights of the opposing party. Throughout the course of his application before the Tribunal, Mr Simmonds frequently sought and received procedural help from my chambers. At the hearing, I repeatedly explained the order of proceedings, summarised the matters in issue and accommodated Mr Simmonds’ frequent requests for adjournments or the re-ordering of proceedings to allow him more time to prepare. I explained to Mr Simmonds that if he wanted me to place weight on a document, he must give evidence about that document. I explained to Mr Simmonds the rule in Browne v Dunn (1893) 6 R 67, emphasising many times that he must challenge the evidence of Western Power’s witnesses in cross-examination where he did not agree with their evidence or his case contradicted their evidence. Mr Simmonds said that he understood that.

39      I acknowledge the exemplary conduct of Western Power’s counsel. Ms Millar conducted Western Power’s case in a way that was of real assistance to the Tribunal.

40      Contrary to views expressed by Mr Simmonds, I consider that Mr Simmonds received considerably more assistance than is usual. It was certainly sufficient to ensure a fair and just trial.

Witnesses

41      Mr Simmonds gave evidence in support of his case. Although Mr Simmonds filed a very long, detailed outline of evidence and large number of documents, all of which he was able to use during his oral evidence to prompt his memory and assist him to give evidence, ultimately Mr Simmonds canvassed very little of that material in his oral evidence despite many reminders about the opportunity to do so.

42      Mr Simmonds continuously focussed on irrelevant matters. Taken as a whole, I found Mr Simmonds’ testimony to be inconsistent and incomplete. I approach it with considerable caution. Though in no way an exhaustive set of examples, it is useful to highlight the following to show some of the exchanges that underpin my concerns about Mr Simmonds’ evidence:

a) Mr Simmonds consistently gave inaudible responses in his testimony and had to be asked to answer audibly;

b) Mr Simmonds had to be prompted many times to answer questions in cross-examination;

c) I had to ask Mr Simmonds four times when and how he told Ms Silvester that he had sent the Wundowie Report to Mr Vasiliauskas;

d) Mr Simmonds’s evidence about what he showed his then girlfriend of the Wundowie Report, and how, was inconsistent with his explanation about that matter in his response to the Second HR Process. His examination-in-chief about that matter also differed from his evidence in cross-examination;

e) Mr Simmonds’ explanation of why the version of the Wundowie Report that he showed his then girlfriend was ‘redacted’ was simply not believable; and

f) Mr Simmonds changed his story multiple times about why he had asked Mr Crook, (the worker engaged by Shodan Electrical), to send test sheets to his personal email address, and about when, or whether, those test sheets came through to him.

43      Mr Simmonds was unhelpfully argumentative with counsel and would not make concessions when they were plainly due. He offered strained, convoluted interpretations about matters to fit his case. Mr Simmonds’ evidence routinely changed to fit his narrative at that time. Overall Mr Simmonds consistently attempted to insist, through elaborate explanation, that particular conduct was acceptable when it plainly was not.

44      During his evidence-in-chief about the allegations relating to confidentiality, Mr Simmonds said:

SIMMONDS, MR: But getting back to the point with you know when – when there’s certain rules that weren’t clear to me – like confidentiality, I don’t believe is really set out in the contract – in the contract very well.  Hence the reason why my lawyer tried to get more clarification on it.  When I mentioned that my ex, Claire, she had read part of the report, that was sort of a little bit of a lie anyway.  I mean she’s Vivien Yap’s protégée.  She doesn’t really take her eyes off the screen.  And I read her the executive summary. Regardless, I said that to - in the team’s message to Sophie Silvester.  And she replied with a thumbs up insinuating that there’s nothing wrong with that.  I do – I did reference that.

EMMANUEL C: Is there a Claire within the SEQT team?

SIMMONDS, MR: No, it was my ex‑girlfriend who I lived with.

EMMANUEL C: No, I understand that that’s who you showed it to and it seemed that that’s who Western Power understood you showed it to.  What I’m asking is at the time there wasn’t somebody called Claire within SEQT, was there?

SIMMONDS, MR: No.  Also we discussed that verbally because she told me that she always gets Ryan to read her stuff.  It’s something that our safety nerds always do.

…

EMMANUEL C: So I can’t see which email you’re talking about.  But are you just saying generally in this bundle ‑ ‑ ‑ ?

SIMMONDS, MR: I think ‑ ‑ ‑ 

EMMANUEL C: ‑ ‑ ‑ the ones that are headed with Aiden O’Hara ‑ ‑ ‑ ?

SIMMONDS, MR: It’s in – and then ‑ ‑ ‑ 

EMMANUEL C: It’s ‑ ‑ ‑ ?

SIMMONDS, MR: So the first one that says enclosure 2 is Microsoft Teams message.  I don’t quite really understand what – what that one is to be honest.  But – sorry, that’s what it is.  That’s – that’s evidence to say Claire read it to see if makes sense and she gets it.  So that was my ex‑girlfriend.

45      Counsel for Western Power later cross-examined Mr Simmonds about this, and a letter that Mr Simmonds’ solicitors sent to Western Power during the Second HR Process, which said,  ‘Mr Simmonds has instructed us that his girlfriend was presented with a redacted version of the Wundowie Report for the purposes of proofreading only’:

MILLAR, MS: So in that message, you’ve told Sophie that Claire has read the report and she gets it, is that right, that she read the report and understood ‑ ‑ ‑?

SIMMONDS, MR: No, I read her the executive summary, um, to see if it flowed nicely and if it made sense to an outside person what the - the thought was going to entail. 

MILLAR, MS: Okay.  So we're going to stop you there because - so you're saying you read it out loud, is that what you're saying?  She didn’t actually read the document?

SIMMONDS, MR: Yeah.  I showed her the, um, the flowchart that I was proud of ‑ ‑ ‑ 

MILLAR, MS: Okay?

SIMMONDS, MR: ‑ - ‑ physically.

MILLAR, MS: So that's not the executive summary ‑ ‑ ‑?

SIMMONDS, MR: Yeah.

MILLAR, MS: ‑ ‑ ‑ that's something else as well as the executive summary?

SIMMONDS, MR: Yeah, I was getting to that.  Yeah.

MILLAR, MS: Well, you answered the Commissioner's questions before as to what was looked at and you said that Claire - you read the summary out loud to Claire is all that happened?

SIMMONDS, MR: I didn’t - I don't recall saying that that was all that happened, I mean, I don't ‑ ‑ ‑ 

MILLAR, MS: Okay.  Why don't you tell us all that was provided to Claire?

SIMMONDS, MR: I read the executive summary to Claire, um, she said it's in a good - and made sense and was written well and she - I showed her the, um, I think one of the - the flow charts, the - I showed her the - the easy one for her to grasp the human - the - the human factor as the root cause as - at depression, um, and asked her if it - if it made sense the - the flow of how it, um, happened as well as if it looks like it's not blaming anyone in particular, as in the formal letter because he didn’t notice it, um, because that's not what I wanted to convey.  So I wanted to see from someone without Sophie’s knowledge as to what they thought of that flow - flow ‑ the process flow. 

MILLAR, MS: So there's two processes by which you share information with Claire from the report.  One is that you read the executive summary out loud to her ‑ ‑ ‑?

SIMMONDS, MR: Mm hmm. 

MILLAR, MS: ‑ ‑ ‑ and you said something in your evidence‑in‑chief about she never takes her eyes off the screen, so she read that with you, is that what you meant?

SIMMONDS, MR: No.  I mean that she was lying on the bed with her laptop open, looking through RP data or realestate.com or any of her other things, because she's Vivian Yap's protégé and she doesn’t really take a break.

…

MILLAR, MS: So you had the hard copy and you gave it to her to look at the - the diagram?

SIMMONDS, MR: No, I opened up the page to the - I think it's the first process flow of, um, what - what I explained, and I held it to her and then showed her and then I mapped it out with my finger and showed her what it meant. 

MILLAR, MS: Okay.  And so this is a document that you had printed out multiple copies of or just one copy?

SIMMONDS, MR: Um, knowing what I'm like, I probably would have printed it on more than one occasion, um‑ ‑ ‑ 

MILLAR, MS: But when - I'm talking about the occasion when you were speaking with Claire about it, did you have multiple copies with you?

SIMMONDS, MR: No.

MILLAR, MS: So you had one copy and you handed it to her to look at page 493?

SIMMONDS, MR: No, I didn't hand it to her, as I said, I held it and then show - explained it, "Do you - does this make sense?"  And then I showed her with my finger of how it makes sense because it's got sort of a starting point, which is a root cause and then another root cause that comes in from another way.

MILLAR, MS: And were you using your hand to block certain portions so she couldn't see them, is that what you're saying?

SIMMONDS, MR: No.  It was only on this page, so the only other things that I could block would be, um ‑ ‑ ‑ 

MILLAR, MS: I'm not asking what you could block.  I'm asking were you blocking material out, or were you using your finger to indicate it?

SIMMONDS, MR: Using my finger to indicate. 

MILLAR, MS: I understand?  Thank you.  So if we turn up page 633 - if we move away, and we're going to come back to this report, but if we go to page 633; it's in the same volume.  This was a letter sent by your solicitors to Western Power, yes?  I'm sorry.  You're not there. yet. I apologise?‑

…

EMMANUEL C: So, is that a letter from your legal representative at the time?

SIMMONDS, MR: Yeah.

MILLAR, MS:   So - and was this sent on your instruction?

SIMMONDS, MR: Mm.

MILLAR, MS: I'm going to get you to stop reading for a second, just listen to the question.  Was this sent on your instruction?

SIMMONDS, MR: Um, depends what you call, "Instruction."  I just said that he would - he just said that he would respond to it because he needed more information.

…

MILLAR, MS: ‑ ‑ ‑ it says about halfway down - well, three‑quarters of the way down:

"Mr Simmonds has instructed us that Ms O'Meara" -

-  that's Claire, yes?

SIMMONDS, MR: Mm hmm. 

MILLAR, MS: "Was presented with a redacted version of the Wundowie report for the purposes of proofreading only."

SIMMONDS, MR: Mm hmm. 

MILLAR, MS: So that doesn't align with what you've just said?

SIMMONDS, MR: If by ‑ ‑ ‑ 

MILLAR, MS: Can you explain that?

SIMMONDS, MR: Yeah, it doesn't in my mind, because a redacted version to me means a -- a version that's not complete, so I didn't let her read the whole thing I read to her - I - I say I read a lot of books, but I don't read a lot of books.  I listen to audio books, but I call it the same thing.  When I say I let her read it, I read it to her, and then I showed her a page, and in my mind, that means it is a redacted version of that report.

MILLAR, MS: So the next sentence says:

"A telephone conversation between Mr John of our firm. And Ms O'Meara confirms that the version she viewed was indeed redacted, but does - she does not recall any specifics.

SIMMONDS, MR: To be honest with that one, she doesn't recall any specifics.  She actually said that she doesn't even remember seeing the report or listening to the report.

MILLAR, MS: But the part I'm interested in it is says:

"The version she viewed was indeed redacted."

So that does sound as if there were - at least you informed your solicitor - solicitor that there was a redacted version of the report?

SIMMONDS, MR: Yeah, which is me showing her the executive summary and that one flow chart, which is, in my mind, a redacted version of the report because it's only two pages of said report.

MILLAR, MS: Okay.  So can you explain to me the final sentence:

"Mr Simmonds has also instructed our firm that this redacted version has since been destroyed."

SIMMONDS, MR: The version that I read - I don't keep a book with all of my prints that I review and mark up and things.  That version that I read off the page to her ‑ ‑ ‑ 

MILLAR, MS: Yes?

SIMMONDS, MR: ‑ ‑ ‑ is probably - it's in my waste - Tamala Park, sorry, at the moment,

EMMANUEL C:   What does that mean?

SIMMONDS, MR: The tip.

MILLAR, MS:   So you're saying you destroyed it?

SIMMONDS, MR: Yeah.  I didn't keep any of my, um, the draft report that I used as writing notes.

MILLAR, MS: Mr Simmonds, I'm going to put it to you that you've not been honest with this Tribunal about this matter?

SIMMONDS, MR: I'll put it to you that you're wrong. 

MILLAR, MS: And I want to ask if there's anything else that you haven't been truthful about?

SIMMONDS, MR: I've been truthful the whole time.

46      On the topic of why and how Mr Simmonds asked Mr Crook to send him test sheets, in his examination-in-chief, Mr Simmonds said:

SIMMONDS, MR: Sorry.  So the very first one apparently was the trigger for this – was asking Joseph Crook, who was the electrician, who was sort of key to the identifying the – the incident, the facts of the incident, he worked on the – the customer side that day... So I spoke to him over the phone and I asked him if he could send me his test sheets which are his own private test sheets that his company owns for work that he was doing for his own customer, not Western Power. So he had the choice whether he would like to send me documents or not.

I was working from home like I did quite often and to get this big job done. And my Internet, it wasn’t – like I wasn’t getting emails.  It ended up coming but I think like 20 or 30 minutes later.  But when I was – I – I messaged him and asked him to send it to my personal email address because at my house I have a good office with a printer and all that sort of stuff.

EMMANUEL C: Sorry, are you saying that it didn’t come through to your work address until half an hour later?

SIMMONDS, MR: Yeah, and I wanted to get this – I worked a lot of hours on this and once I – also once I was able to prove that the two tests were done… The information that I was looking for was whether he did any tests to ensure the polarity was correct at the installation to make sure that anything connected to the MEN, multiple earthed neutral, like taps and pipes that sort of thing, make sure that that doesn’t become energised which is actually what happened.  It energised the – the house about a kilometre down the road.

EMMANUEL C: That’s all right.  I probably don’t need to get into that level of detail?

SIMMONDS, MR: Yeah, so – so what I’m saying is that that’s not confidential information.

EMMANUEL C: But was it fair to say it’s information you wanted for the purposes of your investigation that you were doing on behalf of Western Power?

SIMMONDS, MR: Correct.

EMMANUEL C: Okay.  And am I understanding right?  In effect you’re saying you asked for him to send it to your personal address because you were having Internet issues while working at home?

SIMMONDS, MR: Mm.

EMMANUEL C: Is that the gist of it?

SIMMONDS, MR: Correct.

47      However in cross-examination, he said:

MILLAR, MS: You can see that that's your submissions, tab 6 and this is from the middle of your submissions, and you're explaining at 37 there, the process that you went through to obtain test sheets from Mr Crook and you explain at 37(d) that you:

"Requested Crook to provide these test sheets to my Hotmail address because the information technology systems were defective at the time."

SIMMONDS, MR: Yeah. 

MILLAR, MS: Well, I mean, were they defective at the time because earlier you said that he sent them through the system and they came to you, they just came to you slightly delayed?

SIMMONDS, MR: Depends on what you think, "Defective" is.  In this day and age, I believe that is defective.  I mean, I wanted it to come through then and there.  I don't know if it even did come through that day, to be honest. 

MILLAR, MS: I see.  Well, you said earlier that they came through half an hour later?

SIMMONDS, MR: Yeah, it would have been at least half an hour later depending - we can check the phone records to see when we spoke - I spoke to him and then how long it was until I asked him in a message that, um, to send them and that would show the time frame, the minimum time frame that we know for a fact that it didn’t get sent to me. 

48      Later, Western Power further cross-examined Mr Simmonds about his different explanations for when, how and why he received the test sheets from Mr Crook. Mr Simmonds complained about being ‘scrutinised’:

MILLAR, MS:  This is an email exchange - well, from the second half of 1123 onwards, it's an email exchange between yourself and Mr Armstrong.  On page 1124, there's a clip of the text messages exchanged between you and Mr Shodan [sic], which we were talking about earlier.  On the right hand side, those messages in green, they're the ones sent from you?  I'll get you to stop reading them for a second and just listen to the question?

SIMMONDS, MR: Yeah, I've sent them.  Yeah. 

MILLAR, MS: And in the first message, you say:

"Thanks, mate.  It never came through.  Can you please send to my personal email?  WP blocks a lot."

SIMMONDS, MR: Yeah.

MILLAR, MS: So that's different to what you said before, which is that you got him to send it through because it's faster?

SIMMONDS, MR: Well, no, I - oh, God.  Western Power blocks a lot so it wouldn't have come to my inbox.  So that's the explanation for it not coming faster than a carrier pigeon.  So when I say, "Western Power blocks a lot," I'm thinking because he's an external person, that it would never made it to me, but all ‑ ‑ ‑ 

MILLAR, MS: But it did ultimately come through?

SIMMONDS, MR: I believe so, yes.

MILLAR, MS: Half an hour later?

SIMMONDS, MR: I, I can't actually - considering I'm going to be, like, um, scrutinised over ‑ ‑ ‑ 

MILLAR, MS: Cross‑examined?

SIMMONDS, MR: - ‑ ‑ the factual - factually - I was, um, I don't know when I got it, and I don't even recall if I got it.  I'm pretty sure that I did.

MILLAR, MS: Okay.  And Mr Simmonds, you're going to have to be careful because what you said to the Tribunal earlier was that you received it half an hour later?

SIMMONDS, MR: I also then said that I don't recall the time and that if you check the phone records of the ‑ ‑ ‑ 

MILLAR, MS: No, that's what you said to me in cross‑examination.  Prior to that in evidence‑in‑chief, you said to the Tribunal that it came half an hour or so later.  In any case, let's move back to page 481 ‑ ‑ ‑ 

EMMANUEL C:   The transcript will bear out what you said.  That's the respondent's recollection?

SIMMONDS, MR: Yeah, but I ‑ ‑ ‑

EMMANUEL C: I thought you did say that but ‑ ‑ ‑?

SIMMONDS, MR: I might have said it but ‑ ‑ ‑

EMMANUEL C: ‑ ‑ ‑ it will be in the transcript?

SIMMONDS, MR: ‑ ‑ ‑ the fact that I followed up with what happened; I mean, I'm trying to recall a traumatising event from over a year ago.  So I have clarified that, um, when I was trying to work out whether I - I'd got it or not, I said that it had to have been the time between, um, when I met - after I messaged him because that's the amount of time that I obviously hadn't had it yet.  I mean, what benefit would I get for him to send it to my email address instead of my Western Power address when I can get it either way, it's coming.  It's ‑ ‑ ‑ 

MILLAR, MS:   Well, I'm not going to argue with you, Mr Simmonds, but it isn't a question of benefit. If you can turn up ‑ ‑ ‑ ?

SIMMONDS, MR: Okay. 

49      Western Power called four witnesses. Mr Simmonds did not cross-examine Mr Mercer. The evidence of Mr Shaw, Ms Royston and Ms Nesci was not undermined in cross-examination. Although Mr Simmonds focussed on it, Ms Nesci’s safety, operational and technical knowledge is not in issue in these proceedings and nor were other irrelevant matters. Ms Royston and Ms Nesci presented as credible, reliable witnesses. All of Western Power’s witnesses’ evidence was cogent, consistent and credible. Mr Shaw was a particularly impressive witness. He was forthcoming and made concessions when they were due. Mr Shaw remained patient and focussed during a lengthy and often disjointed cross-examination.

50      I accept the evidence of Mr Shaw, Ms Royston, Ms Nesci and Mr Mercer.

51      Broadly, Mr Simmonds’ testimony was not particularly effective in establishing the points he needed to make to pursue his claim or to successfully counter Western Power’s case. His testimony did not meaningfully impact on the case Western Power established.

Preliminary issue – recordings

52      During the hearing Mr Simmonds sought to tender five audio recordings. Eventually he only pressed for two, being recordings of:

a) The performance discussion meeting on 16 March 2023 (see [23] above) (Recording 1), which Mr Simmonds said shows that Ms Nesci lacks experience and knowledge, and defers to Mr Prideaux;

b) Mr Simmonds’ discussion with Mr Robert Mitchell (Human Resources Business Partner) on around 17 March 2023 (Recording 2), which he said shows Mr Mitchell considered that:

i) Ms Silvester and Ms Nesci did not handle the disciplinary process well;

ii) the PIP had flaws; and

iii) Western Power’s process of handling grievances would be different to what actually happened in Mr Simmonds’ case.

53      Essentially Mr Simmonds argued that Western Power had a toxic culture and the reason he made Recordings 1 and 2 was to protect himself against injustice.  He said he had paid ‘an audio person’ to ‘clean up’ the recordings.

54      Having undergone an unspecified ‘cleaning up’ process casts doubt on the integrity of Recordings 1 and 2. But even if that were not the case, I decided that Recordings 1 and 2 would not be admitted in to evidence.

55      The Tribunal is not bound by any rules of evidence but may inform itself on any matter in such a way as it thinks just: s 26(1)(b) of the Industrial Relations Act 1979 (WA) (IR Act) by virtue of cl 29(1) of Schedule 1 of the WHS Act.

56      Fundamentally, I did not consider that Recordings 1 and 2 were relevant or necessary. Ms Nesci, Mr Armstrong and Mr Mitchell were not the relevant decision-makers in relation to the alleged discriminatory conduct. Recordings 1 and 2 did not go to the question of whether the decision-makers had impermissible reasons in their mind when they engaged in the discriminatory conduct. In any event, Mr Simmonds was able to fairly prosecute his claim without reliance on the recordings. He was able to cross-examine the relevant decision-makers and Ms Nesci. Mr Mitchell’s view about the matters set out at [52b] above is not relevant.

57      Further, the recordings appeared to have been made contrary to the Surveillance Devices Act 1998 (WA). The regime under that Act expressly prohibits covert recordings of private conversations except in limited circumstances. Mr Simmonds made Recordings 1 and 2 without the knowledge or consent of those he recorded. I was not persuaded that the recordings were reasonably necessary for the protection of Mr Simmonds’ lawful interests.

58      In any event, in circumstances where:

a) the party seeking to deploy and rely on the recording of a private conversation deliberately made the recording and was aware during the conversation that the conversation was being recorded; and

b) the other party or parties to the recorded conversation were not aware that the conversation was being recorded,

I considered that there would need to be a compelling reason why such a covert recording should be admitted. There is otherwise something inherently unfair about being able to deploy and rely on such a recording in support of one’s case.

59      In the circumstances of this matter, I concluded that the Tribunal could fairly hear and determine application WHST 8 of 2023 without listening to the covert recordings. I considered Recordings 1 and 2 were not relevant and that, at a minimum, it would not be just or necessary to admit them in to evidence. In my view, to allow reliance on Recordings 1 and 2 would also be contrary to the Tribunal’s obligation to act in accordance with s 26(1)(a) of the IR Act. For these reasons I ordered that Recordings 1 and 2 would not be admitted in to evidence.

Preliminary issue – the ‘altered’ email

60      It is not in dispute that when Ms Silvester sent to Mr Simmonds the email set out at [10] above, the last paragraph said: ‘This will be our best chance to get it across the line as he needs to approve before it can leave SEQT’ (emphasis added), but when Ms Silvester forwarded that email to Ms Nesci, the line read ‘This will be your best chance to get it across the line as he needs to approve before it can leave SEQT’ (emphasis added).

61      It is perhaps unsurprising that Mr Simmonds places importance on this. But how the email came to be altered is not relevant to these proceedings, given that:

a) Western Power does not dispute that the word ‘our’ became ‘your’ in the forwarded email;

b) Ms Silvester was not the decision-maker in relation to the PIP, warning or dismissal;

c) Ms Silvester is no longer employed by Western Power and was not called as a witness by either party; and

d) whether the email said ‘our best chance’ or ‘your best chance’ does not change the clear direction that the Wundowie Report needed to be approved by Mr Shaw before it could leave SEQT.

Did Mr Simmonds raise an issue or concern about work health and safety?

62      In his amended application, examination in chief and closing submissions, Mr Simmonds says that he raised an issue or concern about work health and safety by sending the Issues Email.

63      I accept (and Western Power did not contest) that Mr Simmonds tried to raise an issue or concern about work health and safety when he sent the Issues Email.

64      In his opening submissions, Mr Simmonds argued that he also raised an issue or concern about work health and safety by sending the Wundowie Report to Mr Vasiliauskas. That matter was not part of Mr Simmonds’ amended application and therefore it is not part of his case. But even if Mr Simmonds attempted to raise an issue or concern by sending the Wundowie Report to Mr Vasiliauskas, ultimately I am not satisfied that the PIP, dismissal or the warning were for a prohibited reason under the WHS Act.

Did Western Power engage in discriminatory conduct?

65      It is not in dispute that Western Power gave Mr Simmonds a warning, put him on the PIP and dismissed him.

66      Although at the hearing Mr Simmonds sought to make submissions about a broad range of discriminatory conduct, he is limited to the discriminatory conduct set out in his amended application. There, Mr Simmonds says that the discriminatory conduct was dismissal and altering his position to his detriment on 16 March 2023 by putting him on a performance management plan that required him not to work from home, required his work to be reviewed by Mr Prideaux, Ms Nesci and Mr Armstrong, including his emails, and required him to do daily electronic timesheets and change his start times.

67      I am satisfied, and Western Power concedes, that the dismissal amounts to discriminatory conduct as defined under the WHS Act.

68      The parties disagree about whether the PIP is discriminatory conduct. It is clear from analogous case law arising in the context of general protections claims made under the Fair Work Act 2009 (Cth) that the question of whether a performance improvement plan is discriminatory conduct is a heavily factually-dependent question: Humphreys J in Chambers v Commonwealth of Australia (Bureau of Meteorology) [2024] FedCFamC2G 100.

69      Although it was not part of Mr Simmonds’ amended application, the parties proceeded on the basis that the warning formed part of the alleged discriminatory conduct. For that reason I have addressed the warning in my reasons that follow.

70      Mr Simmonds did not put to Western Power’s witnesses or submit that the expectations in the PIP meaningfully involved doing other than performing the requirements of his role.

71      Western Power says that while a performance improvement plan could be discriminatory conduct, here the PIP was not discriminatory conduct.

72      In my view, the PIP did not alter Mr Simmonds’ position to his detriment. Rather, it sought to support and guide Mr Simmonds about Western Power’s expectations of his performance during probation. In the circumstances of this matter, I am not persuaded that the PIP amounted to discriminatory conduct because:

a) Mr Simmonds was a probationary employee and I accept that Western Power had legitimate concerns in relation to Mr Simmonds’ conduct. In particular:

i) that Mr Simmonds sent the Wundowie Report outside of SEQT despite Ms Nesci’s instruction not to do so (see [12] and [14] above) until Mr Shaw had approved it;

ii) Mr Simmonds’ obstinate, antagonistic approach and resistance to following reasonable instructions; and

iii) Mr Simmonds’ attitude and approach at the meeting on 8 March 2023.

b) I accept that the expectations set out in the PIP were essentially to perform the requirements of Mr Simmonds’ role. Mr Simmonds did not identify how the PIP required him to do other than perform his role.

c) Western Power amended the PIP in response to Mr Simmonds’ views. Given Ms Nesci’s evidence that Business Partners did not have an automatic right to work from home, I am not persuaded that Mr Simmonds had an unfettered right to work from home before the PIP was put in place. In any event, it was reasonable for Western Power to decide that Mr Simmonds required close supervision, given his conduct and approach during his first few months of employment in 2023.

Was any discriminatory conduct engaged in for a prohibited reason?

73      Mr Simmonds says: ‘[T]his is all from me doing a good job and, um, finding the truth and sharing a report with a shared duty holder on his request, allowing for the potential prevention of fatalities.’

74      Mr Simmonds alleges that the prohibited reason in s 106(h) of the WHS Act is the reason for the warning, PIP and his dismissal. It follows that in accordance with s 113(2) of the WHS Act, that prohibited reason is presumed to be a substantial reason for that discriminatory conduct, unless Western Power proves on the balance of probabilities that the prohibited reason in s 106(h) of the WHS Act was not a substantial reason for the conduct.

75      As I go on to explain, I consider that Western Power has discharged its onus of proving that a prohibited reason was not a substantial reason for the impugned conduct.

The warning and the PIP

76      The question in this matter is not whether it was fair for Western Power to give Mr Simmonds a warning and the PIP, but whether a substantial reason for why Western Power gave Mr Simmonds the warning and the PIP was because he raised an issue or concern about work health and safety. That necessarily involves inquiring into the state of mind of the decision-maker. For the reasons the follow, I am satisfied on the balance of probabilities that Western Power did not give Mr Simmonds the warning or the PIP for a prohibited reason.

77      Mr Simmonds gave evidence to the effect that he needed to send the Wundowie Report to Mr Vasiliauskas in order to comply with his consultation obligations under the WHS Act, but that the warning and the PIP were a punishment for doing so.

78      Mr Shaw’s evidence that he was the decision-maker for the warning and the PIP was unchallenged. He gave direct, credible evidence about his reasons for engaging in that conduct, which was preferable to the evidence Mr Simmonds relied on in support of his case (see  Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor [2012] HCA 32 at [44] – [45] per French CJ and Crennan J). The effect of Mr Shaw’s evidence was that he did not act as he did toward Mr Simmonds for any prohibited reason.

79      Even if I am wrong and the warning and the PIP amount to discriminatory conduct, I am satisfied that a prohibited reason was not a substantial reason (or any part of the reason) for the warning or the PIP.

80      It is plain from the email Ms Silvester sent to Mr Simmonds (set out at [10] above) that Mr Simmonds was directed on 8 February 2023 not to distribute the Wundowie Report outside of SEQT before it was approved by Mr Shaw. Mr Simmonds claimed he understood that ‘Andy needs to approve it before it leaves SEQT’ meant ‘it couldn’t leave SEQT to go to the regulator but it could leave SEQT for review by other people without Andy’s approval.’ Such an understanding is at best very misconceived and it does not change the clear direction.

81      Further, Mr Simmonds’ evidence about Ms Silvester ‘being fine’ with him sending the Wundowie Report to Mr Vasiliauskas really amounted to him saying that he told Ms Silvester on the phone he wanted to send the report to Mr Vasiliauskas and Ms Silvester said that she did not have the time to talk about it. Nothing in the testimony or documents leads to the finding that Ms Silvester authorised Mr Simmonds to send the Wundowie Report outside SEQT before Mr Shaw had approved it.

82      Mr Simmonds did not:

a) challenge Mr Shaw about his reasons for giving Mr Simmonds the warning or putting him on the PIP; or

b) put to Mr Shaw that he gave Mr Simmonds the warning and put him on the PIP for a prohibited reason.

83      I do not consider that Western Power gave Mr Simmonds the warning and put him on the PIP for raising an issue or concern about work health and safety.

84      Ultimately, I find that Western Power gave Mr Simmonds the warning and put him on the PIP because of Mr Shaw’s understandable concerns about Mr Simmonds’ conduct and performance.

85      Specifically, Mr Simmonds sent the Wundowie Report outside SEQT despite Ms Silvester’s email set out at [10] above. Mr Shaw’s email at [17] above, sent hours before Mr Simmonds sent the Issues Email, also supports Mr Shaw’s evidence about his concerns about the negative cultural impact that the draft Wundowie Report could have on other teams within Western Power (such as the large Operations team) if it left SEQT before being approved by Mr Shaw. That Ms Silvester telephoned Mr Simmonds to invite him to the meeting on 27 February 2023 before Mr Simmonds sent the Issues Email does as well. It is clear that Mr Shaw did not want a report with any commentary within it going outside SEQT before he had had a chance to review and approve the report. Mr Shaw rightly conceded that according to the Incident Management Procedure, as Operations East Manager – Operational Maintenance, Mr Vasiliauskas had a role in supporting Mr Simmonds in the investigation process. Mr Shaw accepted that ordinarily one would expect that the investigation report could be shared with Mr Vasiliauskas. But the effect of Mr Shaw’s evidence was that such an expectation did not hold given that Mr Simmonds had been directed on 8 February 2023 not to distribute the Wundowie Report before it was approved by Mr Shaw. I accept Mr Shaw’s evidence that it was irrelevant whether Mr Simmonds had shared a version of the Wundowie Report without derogatory comments, because the direction was not to share the report before it was approved by Mr Shaw.

86      I accept Mr Shaw’s evidence that he was concerned about the Wundowie Report being available to the Head of Operations without Mr Shaw having signed off on it. That led to the direction that the Wundowie Report was not to leave SEQT before Mr Shaw had approved it. Such a direction was reasonable in the circumstances.

87      I have considered the fact that the calendar invitation sent to Mr Simmonds on 24 February 2023 referred to the Issues Email: ‘[T]he email you sent yesterday afternoon to members of the executive team following a direction also gives me further cause for concern’. However, the Issues Email did not form part of the allegations in the First HR Process. Moreover, it is clear that Mr Shaw’s concerns about Mr Simmonds’ conduct arose before Mr Simmonds sent the Issues Email, and Mr Shaw’s concerns were not that Mr Simmonds was raising an issue or concern in relation to work health and safety.

88      I accept Ms Nesci’s evidence that she had tried to deal with Mr Simmonds’ performance informally without success. It is unsurprising that Western Power decided to institute the First HR Process.

89      I accept Mr Shaw’s evidence that Mr Simmonds’ approach at the meeting on 8 March 2023 showed that he lacked insight into why his approach and conduct was problematic.

90      Further, Mr Simmonds’ refusal to ‘split’ parts of the Wundowie Report by separating the information in it into different documents was plainly unreasonable, as was his insistence in the Issues Email that ‘all officers see unredacted investigation reports’. While I accept that was his view, ultimately such a matter was not up to Mr Simmonds.

91      I accept Mr Shaw’s evidence that although he considered allegation one in the First Allegation Letter was substantiated, at first Mr Shaw did not intend to impose any formal disciplinary action. It was Mr Simmonds’ unnecessarily antagonistic approach and lack of remorse at the meeting on 8 March 2023 (including Mr Simmonds’ remarks that he ‘would be the next Erin Brockovich’ and ‘would do the same thing again’) that led Mr Shaw to decide that the warning and the PIP were necessary.

92      Mr Shaw gave evidence that ordinarily Ms Silvester would have conducted the disciplinary process, as Mr Simmonds’ line manager. Mr Shaw said that he decided that in this case it would be more appropriate for him to review the human resources investigation and make any decisions relating to disciplinary proceedings. This is because on around 23 February 2023, Ms Silvester had told Mr Shaw that she felt threatened and intimidated by Mr Simmonds’ aggressive and dominant behaviour toward her. Mr Shaw said that he took her concerns at face value and thought it was appropriate to create distance between Ms Silvester and Mr Simmonds where possible. The human resources report dated 10 March 2023, Mr Shaw’s email to human resources dated 13 March 2023 and Ms Nesci’s evidence that Ms Silvester had told Ms Nesci that she was intimated by Mr Simmonds support Mr Shaw’s evidence about his view that there had been a relationship breakdown between Mr Simmonds and Ms Silvester. In the circumstances, I do not consider there was anything unusual or inappropriate about Mr Shaw being the decision-maker in the First HR Process.

93      In my view, the warning and the PIP were reasonable and appropriate in the circumstances. They were not for a prohibited reason set out in s 106 of the WHS Act. I am satisfied that the reason Western Power gave Mr Simmonds the warning and put him on the PIP was not because Mr Simmonds raised an issue or concern about work health and safety (or for any other prohibited reason). Raising an issue or concern about work health and safety was not any part of the reason for Western Power’s conduct, let alone a substantial reason.

Dismissal

94      Given the nature of application WHST 8 of 2023, I am not considering the merits of Western Power’s decision to dismiss Mr Simmonds, but rather whether the decision-maker acted because of prohibited reasons: Dickson v Downer EDI Works Pty Ltd [2014] FCA 1134 at [62] – [63], [85].

95      Considering all the evidence and arguments before me, I accept that Western Power dismissed Mr Simmonds because it upheld the three allegations from the Second HR Process against him. Specifically, Ms Royston reviewed the human resources report and was satisfied that Allegations 1, 2 and 3 (set out at [26] above) were substantiated.

96      Ms Royston considered that Mr Simmonds had engaged in misconduct that justified dismissal. In my view, that conclusion was open to Ms Royston on what was before her at the time.

97      Further, on the evidence before the Tribunal, it is clear that Mr Simmonds:

a) shared the confidential Wundowie Report with his then girlfriend;

b) arranged for the confidential customer information from Mr Crook to be sent to his personal email address;

c) did not store the test sheets as he should have on Western Power’s document management system; and

d) sent attachments 1 – 24 to his personal email address. At a minimum, those attachments contained information owned by Western Power and also confidential, personal and private information of Western Power’s customers.

98      I cannot accept Mr Simmonds’ evidence that the information in [97b] above was not confidential ‘because it’s [Mr Crook’s] information and he chose to send it to me’ or that none of the attachments 1 – 24 were confidential. In cross-examination Mr Simmonds agreed that attachments 1 – 24 included customer names, addresses, email addresses and GPS locations. It is readily apparent on the face of the material in [97] above that it included confidential information.

99      Mr Simmonds takes issue with Western Power sending an email to his personal email address in the course of the disciplinary proceedings. However, it was not inappropriate for Western Power to do so and it has no bearing on the actions set out at [97]. Mr Simmonds accepted in cross-examination that Western Power’s Code of Conduct (Code) applied to him and that personnel who breach the Code may be subjected to disciplinary action, including dismissal. Mr Simmonds accepted that in accordance with the Code:

a) ICT assets and facilities provided by Western Power must be used responsibly, appropriately and ethically;

b) personnel must exercise care in the use of ICT systems and assets to avoid exposing Western Power to cyber security attacks, or disclosure of confidential information and must not knowingly undertake any action that undermines cyber security protections;

c) inappropriate use of ICT assets is regarded as misconduct and will be dealt with accordingly;

d) to protect information, reports and other data, personnel must ensure that all records made in the course of the employment with Western Power are saved in the appropriate record management system in line with the information management standard, ensuring only those personnel authorised to use or access sensitive or confidential information in the course of their role at Western Power are given permissions to access that information;

e) the confidentiality and privacy of information about Western Power, its customers and employees are respected and maintained; and

f) sensitive or confidential information is securely stored,

but Mr Simmonds would not accept that Western Power dismissed him because it thought he breached the Code.

100   Plainly Mr Simmonds’ actions were in breach of the Code (see pages 5 and 6 of the Code). Mr Simmonds did not ensure the privacy and confidentiality of information or accurately and appropriately maintain records.

101   Ms Nesci’s uncontested evidence was that she was not involved in the decision to dismiss Mr Simmonds.

102   Although Mr Simmonds submitted in closing that Ms Royston ‘wouldn’t have been the best person to choose for procedural fairness’, he did not put that to her in cross-examination. It is not in dispute that Ms Royston had authority to make the decision to dismiss Mr Simmonds, nor that she was the relevant decision-maker who decided to dismiss Mr Simmonds. Mr Simmonds did not put to Ms Royston that the reason (or a substantial reason) for his dismissal was because he raised an issue or concern about work health and safety concerns or for any other prohibited reason, despite the Tribunal explaining the rule in Browne v Dunn to him many times and despite Mr Simmonds confirming he understood it.

103   I consider that by engaging in the conduct at [97] above, Mr Simmonds engaged in misconduct during his probationary period. I accept Ms Royston’s evidence and am satisfied on the balance of probabilities that this was the reason that Ms Royston decided that Mr Simmonds should be dismissed from his employment. Ms Royston spent time reviewing the human resources documents and recommendation. Ms Royston agreed with the findings and outcomes before she discussed the matter with Mr Mercer. Ms Royston only took into account the matters outlined in the investigation documents and Mr Mercer’s recommendation. She did not discuss the matter with anyone other than Mr Mercer. Ms Royston was unaware that Mr Simmonds had raised an issue or concern about work health or safety. I accept that Ms Royston did not (and could not) take such matters into account.

104   Accordingly, I find that although Western Power took discriminatory action (as defined by s 105 of the WHS Act) against Mr Simmonds when it dismissed him, Western Power did so for a reason other than a prohibited reason. Western Power has proved on the balance of probabilities that the prohibited reason in s 106(h) of the WHS Act was not the reason, or a substantial reason, for the warning, PIP or dismissal.

Instruction to split the Wundowie Report

105   Finally, given the serious matters raised by Mr Simmonds, I consider it appropriate to make the following comments. Although not necessary to decide, I am not persuaded that the instruction to split the Wundowie Report was a breach of the consultation requirements under the WHS Act. I am satisfied that Western Power did not hide or attempt to hide safety matters raised by Mr Simmonds. I accept the evidence of Mr Shaw and Ms Nesci to the effect that the relevant information can be captured in separate documents, for example the Building and Energy Report, the SEQT Organisational Learning Report, the Lessons Learned Register and in the material that goes to the Incident Review Board. Notwithstanding Mr Simmonds’ criticisms of Western Power’s approach, I am satisfied that that the relevant information was reported to the Regulator, recorded in an appropriate register and considered by the Incident Review Board at its April 2023 meeting.

What, if any, orders to make?

106   Mr Simmonds says that he suffered loss on the basis that Western Power engaged in discriminatory conduct for a prohibited reason, although he did not particularise the loss. He seeks such compensation and other order the Tribunal considers appropriate.

107   Given my findings above, I cannot make an order for compensation or other order in Mr Simmonds’ favour.

Conclusion

108   I must dismiss application WHST 8 of 2023.