Albertus Neethling v SC Hydro Pty Ltd [2026] FWC 2411

1 Fair Work Act 2009 s.394—Unfair dismissal Albertus Neethling v SC Hydro Pty Ltd (U2026/871) DEPUTY PRESIDENT WRIGHT SYDNEY, 14 JULY 2026 Application for an unfair dismissal remedy – valid reason for dismissal – breach of safety policies – employee’s conduct not deliberate - dismissal harsh and unreasonable – reinstatement found to be inappropriate – directions to be issued to file further evidence and submissions regarding whether compensation is appropriate and if so the appropriate quantum to be ordered Introduction and outcome [1] On 21 January 2026, Mr Albertus Neethling made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with SC Hydro Pty Ltd (SC Hydro). [2] Mr Neethling was employed by SC Hydro as a Mechanical Fitter and Leading Hand on the Snowy 2.0 Pumped Hydro Electric Upgrade Scheme project (the Project). On 19 January 2026, Mr Neethling was dismissed from his employment because he engaged in a serious breach of safety procedures during a pipe inspection at the Tantangara site. [3] Mr Neethling initially denied that the safety procedures applied to the pipe inspection because they were not task specific and due to his assessment that the task was low risk. However, during the hearing he accepted that the procedures applied and committed to following them in the future if reinstated. [4] In summary, I have found that there was a valid reason for Mr Neethling’s dismissal but that the dismissal was harsh and unreasonable for reasons which include that Mr Neethling’s conduct was not deliberate and did not involve a risk of harm to himself and others. I have also taken into account Mr Neethling’s good employment and safety record and that he apologised. I consider that an order for reinstatement is inappropriate however there is insufficient material before me to establish that compensation is appropriate and if so, the quantum which should be awarded. I will determine these matters after receiving further evidence and submissions from the parties. [2026] FWC 2411 DECISION -- 1 of 29 -- [2026] FWC 2411 2 The hearing [5] As there are contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a determinative conference or hold a hearing. [6] After taking into account the views of Mr Neethling and SC Hydro, and whether a hearing would be the most effective and efficient way to resolve the matter, I decided to hold a hearing pursuant to s.399 of the FW Act. [7] At the hearing, Mr Neethling represented himself. SC Hydro was represented by Mr Trent Sebbens, Solicitor, who I granted permission to appear pursuant to s.596(2) of the FW Act as I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. [8] Mr Neethling gave evidence on his own behalf and was cross-examined by Mr Sebbens. In addition, Mr Darryl Harding, former employee of SC Hydro, gave evidence on behalf of Mr Neethling and was cross-examined by Mr Sebbens. [9] The following witnesses gave evidence on behalf of SC Hydro and were cross-examined by Mr Neethling: 1. Mr Levi Hussell, Dewatering Supervisor, Salini Australia Pty Ltd 2. Ms Monique Roosen, Industrial Relations Advisor, Salini Australia Pty Ltd [10] I have considered the written and oral submissions made by the parties and all the evidence before me in my determination of this matter and the conclusions I have reached. Factual background [11] On 23 June 2022, Mr Neethling commenced employment with SC Hydro as a Mechanical Fitter and Leading Hand on the Project. Mr Neethling has been a trade qualified Mechanical Fitter for approximately 30 years. [12] The Project is delivered by Future Generation Joint Venture (FGJV), an unincorporated joint venture. Salini Australia Pty Ltd (Salini) is a subsidiary of Webuild S.p.A. which is a member of the FGJV.1 Employees of Salini were deployed to the Project as well as direct employees of SC Hydro. Employees of Salini included Mr Levi Hussell, Dewatering Supervisor and Ms Monique Roosen, Industrial Relations Advisor. [13] Mr Neethling worked in the Dewatering department of the Tantangara site within the Project.2 [14] Mr Neethling was covered by the SC Hydro Pty Ltd – AWU Tunnel and Associated Works Greenfield Agreement 2021–2025 (Enterprise Agreement) and then from August 2025, the SC Hydro Pty Ltd and the Australian Workers’ Union-Snowy 2.0 Project Underground Works Project Agreement 2025-2029.3 -- 2 of 29 -- [2026] FWC 2411 3 [15] Mr Neethling was supervised by Mr Hussell in his role. Mr Hussell is a trade qualified Mechanical Fitter and has over 25 years’ experience working in various trade qualified and supervisory roles.4 Dewatering at Tantangara [16] Dewatering systems are required to ensure water build up during tunnelling operations (i.e. boring) can be removed effectively. This prevents water accumulation in the tunnels, which compromises structural stability and construction safety. During boring, water is used to aid the effective operation of the tunnel boring machine, including to suppress dust and cool the machine. As a result, this water mixes with the soil, rock and other sediments displaced during boring. The water is removed from the tunnel by sump pumping, a process whereby water collects in designated pits within the tunnel before being pumped out of the tunnel by pipes and collected in a series of ‘fish tanks’ along the pipeline. This is necessary due to the distance the water needs to be pumped and the power of the pumps.5 [17] In the Tantangara tunnel, three fish tanks were used to aid pumping the wastewater out of the tunnel and to a water treatment plant. These tanks were known as Fish Tank #1, #2 and #3. Fish Tank #1 was the furthest away from the tunnelling face (i.e. closest to the tunnel entry). Once the water is pumped into a fish tank, the sediment suspended in the water settles to the bottom of the tank. The sediment is cleared out of the tanks periodically.6 Safety management system [18] The Project’s safety management system is centrally managed by the Project’s Health, Safety and Environment (HSE) Team. The Health and Safety Management Plan (Safety Management Plan) outlines the standards and procedures that apply to all works undertaken across the Project’s different sites.7 [19] According to the Safety Management Plan, the Project uses a Permit to Work system. This system is set out in the Project’s Permit to Work Procedure (PTW Procedure). A Permit to Work is required: a. where it is deemed necessary by the Area Construction Manager, Permit Authority or Area Superintendent; b. where isolations are required to perform work on relevant equipment, save for some minor exceptions concerning single point isolations; c. when the work involves simultaneous operations in the field that have the potential for interaction; and d. when performing high-risk tasks.8 [20] Mr Neethling had completed the relevant isolation and Permit to Work training, including a ‘Personal Red Lock Training’ in January 2023. Since July 2024, Mr Neethling has been an appointed Permit Holder and Authorised Isolator.9 Incident on 11 June 2025 -- 3 of 29 -- [2026] FWC 2411 4 [21] On 10 June 2025, Mr Neethling and Mr Darryl Harding were part of the dewatering crew working on the night shift. Mr Neethling held the role of Leading Hand. Mr Harding is a Plumber.10 [22] At approximately 6:30pm, Mr Hussell requested that Mr Neethling and Mr Harding carry out an internal inspection of the pipework connected to Fish Tank #1. The purpose of this task was to inspect the pipe spools, which had been made in-house and confirm that they met the necessary specifications and standards to be safe for continued use.11 The task involved visually examining and taking pictures of the inside of the pipework.12 Relevant safety and isolation requirements [23] Mr Hussell gave evidence that the following safety and isolation requirements applied to the task. [24] Pipework inspections are required to be carried out in accordance with the PTW Permit No. TWP12131 (the PTW). The PTW covers a range of routine works, including ‘isolation of live mechanical and electrical equipment for mechanical alterations and repairs, including welding, grinding, pipe and pump installations and repairs and access via EWP [elevating work platform]’.13 [25] Mr Neethling, as a relevant Permit Holder, was required to take the following steps: a. Attend the Permit Office to ‘sign out’ a copy of the PTW and the accompanying Permit Work Pack which included: i. the Safe Work Method Statement (SWMS) – Work on Live Dewatering, Fire Industrial, Airline and Cooling Services; ii. Job Hazard Analysis (JHA) - Minor Works Permit to Work Activities; iii. Isolation of Hazardous Energy Certificate (IHEC); iv. work permit sign on sheet; and v. a lock box. b. Bring the Permit Work Pack to the work site; c. Explain to Mr Harding the relevant isolations, potential hazards and any precautions and conditions associated with the pipework inspection task; d. Confirm all controls identified in the Permit Work Pack documentation were implemented and effective prior to commencing work, and then monitoring compliance with those controls during the completion of the work; e. Ensure that he and Mr Harding had signed onto the work permit sign on sheet, SWMS, and JHA; f. Ensure necessary isolations for the task were performed, in accordance with the Project’s Isolation and Tagging Procedure.14 [26] Mr Neethling and Mr Harding were required to undertake the following steps to isolate the valves/pipework on Fish Tank #1: a. Turn off the relevant valves; b. Mr Neethling, as the Authorised Isolator, to complete the isolation by applying an equipment lock to the hasp on the valve for the pipe connected to Fish Tank #1; -- 4 of 29 -- [2026] FWC 2411 5 c. Mr Neethling to sign off the IHEC confirming he completed the relevant isolations and the plant/equipment is de-energised; d. Mr Harding to review the isolations in place, before signing off on the IHEC; e. Mr Neethling to place the keys for the equipment lock(s) inside the lock box and lock the box with his personal red lock; and f. Mr Harding to lock his personal red lock onto the lock box.15 [27] Two electrical pumps were connected to Fish Tank #1. The pumps should have been isolated by isolating the breaker for each electric pump, then the electricians who undertook that isolation should have completed their own isolation lock out tag out (LOTO) process, or ‘signed on’ to the minor works PTW that Mr Neethling was supervising.16 Task performed by Mr Neethling and Mr Harding [28] Mr Neethling and Mr Harding performed the assigned task over approximate two hours. Before commencing work, Mr Neethling and Mr Harding: a. Each signed on to a plumbing JHA; and b. Each completed a ‘Take 5’ risk assessment.17 [29] Mr Neethling said he and Mr Harding had assessed that the task posed no risk to personnel and equipment. On that basis, Mr Neethling said he and Mr Harding proceeded with conducting a single point isolation. Mr Neethling said that there was no task specific procedure for the task, so he relied on his training and experience and implemented the following control measures: a. Isolation of the two valves at the bottom of the fish tank; b. Use of a diesel pump to bypass the system and maintain safe water levels; and c. Requested electricians to isolate the electric pumps and remain on standby.18 [30] After completing the task, Mr Neethling and Mr Harding reported back to Mr Hussell. There was no injury to personnel or damage to the equipment caused by the task.19 Discussions after the task was completed [31] At or around 1:00am on 11 June 2025, Mr Hussell said that other members of the dewatering crew advised him that they believed Mr Neethling and Mr Harding did not follow the correct isolation procedures when completing the pipework inspection at Fish Tank #1.20 [32] Those members of the crew then obtained a copy of the PTW from the Permit Office and gave it to Mr Hussell. Mr Hussell said that upon reviewing the PTW, he noticed that no workers had signed onto it since 7 June 2025. As a result, Mr Hussell became concerned that Mr Neethling and Mr Harding had not complied with the relevant PTW Procedure and the Isolation and Tagging Procedure.21 [33] At approximately 1:30am, Mr Hussell asked Mr Neethling to see him about the pipework inspection task at Fish Tank #1. Mr Hussell gave evidence that he had a conversation with Mr Neethling to the following effect: -- 5 of 29 -- [2026] FWC 2411 6 Mr Hussell: Albert, it’s been highlighted to me that you may have removed the pieces of fabricated pipe without isolating. Mr Neethling: We turned off the valves and used the diesel pump to bypass the electrical pumps, so the risk was minimal. The electrical pumps were also turned off to avoid the pumps running dry and the tank was at low water levels at the time which reduced the pressure in the system. Mr Hussell: You are a Leading Hand and need to follow the correct process as a Permit Holder. That means you are trained and aware of what the isolation requirements are. Mr Neethling: Because we bypassed the electrical pumps there was no need to put a lock on the valves as the diesel bypass was redirecting the water flow. By closing all the valves involved, we minimised any risk. Mr Hussell: I still need to contact Safety because this is an isolation breach. The system has stored energy which has the potential to cause injury if turned back on. Mr Neethling: No one could have turned the system back on because we were there, working on it the whole time.22 [34] Mr Hussell said that he understood from his discussion with Mr Neethling and Mr Harding that they did not consider that isolation, in accordance with the Isolation and Tagging Procedure, was required for the pipework inspection for a number of reasons, including that: a. They conducted the inspection in a manner that either sufficiently minimised or eliminated any risk presented by the stored energy in the system; b. The fact that the pipework was not pressurised meant that the PTW and the associated SWMS and JHA did not apply to the work undertaken.23 [35] Mr Hussell then called Mr Alistair Finlay, HSE Advisor, to notify him of the potential safety breach concerning Mr Neethling and Mr Harding. Mr Hussell asked Mr Finlay to attend the dewatering area to investigate and to speak to Mr Neethling and Mr Harding.24 [36] Mr Hussell also had a brief conversation with Mr Harding about the incident.25 [37] Mr Finlay attended the site and spoke with Mr Neethling and Mr Harding. Mr Finlay then worked with Mr Neethling and Mr Harding to complete the relevant witness and witness statement forms.26 Safety investigation of the incident on 11 June 2025 [38] Between 11 and 18 June 2025, the HSE team investigated the incident of 11 June 2025. -- 6 of 29 -- [2026] FWC 2411 7 [39] On 18 June 2025, Mr Brett Hyde, HSE Coordinator at the Tarantagara site provided the Industrial Relations team a copy of a Full Investigation Report Form (Safety Investigation Report) and a Just Culture Disciplinary Assessment Form for both Mr Neethling and Mr Harding.27 Industrial Relations investigation of the incident on 11 June 2025 [40] From Mr Hyde’s email, Ms Roosen understood that the Industrial Relations team was now required to conduct its own investigation regarding the incident, having regard to the HSE team’s investigation. Ms Roosen was assigned to conduct this investigation with assistance from Mr Sheldon Jacka, the Project’s HR/IR Manager at the time.28 [41] On 25 June 2025, Mr Neethling was away from the Project site on rest and recreation. Ms Roosen contacted Mr Neethling by email to advise that he was being stood down on pay pending the completion of an investigation and a show cause process was being commenced. Details of the stand down and the show cause process were provided in letters from Mr Jacka dated 24 June 2025. Mr Neethling was invited to provide a response to the show cause letter by 5pm on 30 June 2025.29 [42] Later that day, Mr Neethling provided a response to the show cause letter. Relevantly, Mr Neethling stated: I am writing in response to the letter I received on June 25 regarding the safety breach related to my actions. While I have no additional information to provide, I would like to clarify the circumstances surrounding my decision. The reason for not isolating the system was that the risk involved in performing the task was minimal for both personnel and equipment. The section I was working on was bypassed by continuously running the diesel pump, which ensured that the water levels in the fish tank remained low at all times. The work was conducted on the drain (suction) side of the fish tank (NO RISK SIDE), and the electric pumps were turned off to prevent damage from running dry. In the worst-case scenario, the only consequence would be getting wet, without any risk of injury. I recognise that I should have adhered to protocol on that day; however, I believed that the situation posed no risk. I acknowledge my mistake and commit to doing better in the future if given the opportunity. My sincere apologies.30 [43] On 28 June 2025, Ms Roosen conducted interviews with Mr Hussell and Mr Hyde as part of her investigation.31 [44] On 30 June 2025, Mr Neethling provided a further response to the Industrial Relations team. He attached a document titled “IN MY DEFENCE”. In this document, Mr Neethling: a. Raised concerns that the Project’s isolation protocols are vague and not task specific; -- 7 of 29 -- [2026] FWC 2411 8 b. Compared the non-use of the LOTO isolation procedure in a different dewatering task (depicted in a diagram titled ‘Scenario A’) to the inspection task he completed on 11 June 2025 (depicted in a diagram titled ‘Scenario B’); and c. Sought clarification as to whether LOTO isolation is required in both scenarios.32 [45] In or around early July 2025, Mr Jacka contacted Mr Chris Stephens, Operations Safety Manager, to get his assistance in completing a root cause analysis for the incident of 11 June 2025. Mr Stephens engaged Mr Todd Werch, HSE Manager at the time, to complete the root cause analysis.33 [46] On 8 July 2025, Ms Roosen conducted an interview with Mr Charles Webb, Dewatering Supervisor, as part of her investigation.34 [47] On 11 July 2025, Mr Werch provided Mr Jacka with his root cause analysis of the incident, which was forwarded to Ms Roosen. Ms Roosen said that Mr Werch identified the main causal factor for the incident as procedures not being used or followed, and the root cause as ‘poor behaviour and attitude that contributed to the wilful violation’.35 [48] Ms Roosen said that she had discussions with members of the HSE team about Mr Neethling’s and Mr Harding’s conduct. Ms Roosen said that she understood from those discussions that, in not applying a positive isolation (with locks), in accordance with the relevant isolation procedures, the conduct exposed each of them to risk, namely that there was a real risk of injury if the pipework had, unknown to them, been de-isolated while they were conducting their inspection.36 [49] On or about 14 July 2025, Ms Roosen completed her investigation and an investigation report. The outcome of her investigation was as follows: a. Each of the allegations put to Mr Neethling in the show cause letter had been substantiated on the balance of probabilities. b. As the allegations were substantiated, Mr Neethling’s conduct amounted to a serious safety beach and a breach of the following policies and procedures: i. Health and Safety Management Plan; ii. Project Rules; iii. Isolation and Tagging Procedure; and iv. Permit to Work Procedure. c. It was recommended that Mr Neethling’s employment be terminated. Ms Roosen said that she considered the following factors, amongst other things: i. Mr Neethling’s witness form and witness statement prepared during the course of the investigation conducted by the HSE team; -- 8 of 29 -- [2026] FWC 2411 9 ii. advice from the HSE team as to the risk presented by Mr Neethling’s conduct; iii. Mr Neethling’s position as a Leading Hand; iv. Mr Neethling’s training and competency – namely that he had completed the ‘Personal Red Lock Training’ (i.e. isolation training) and had, since July 2024, been appointed a Permit Holder and Authorised Isolator; v. Mr Neethling’s response to the show cause letter; and vi. Mr Neethling’s personal and financial situation.37 [50] Ms Roosen sent the investigation report to Mr Jacka for his review and approval.38 [51] On 6 August 2025, Mr Neethling requested an update on the status of his stand down, noting he was keen to resume his duties. Mr Neethling expressed that the situation was having a significant psychological and financial impact on himself and his family. It appears that Ms Roosen then phoned Mr Neethling to discuss the matter.39 [52] On 7 August 2025, Mr Jacka advised Mr Neethling that he will be able to provide a further update and discuss next steps early next week.40 [53] On 8 August 2025, Mr Neethling provided the two scenarios he had sent to the Industrial Relations team on 30 June 2025 team to Mr Jacka.41 [54] On 12 August 2025, Mr Jacka confirmed he had not seen those scenarios and would review them shortly and give Mr Neethling a call.42 [55] At 11:19am on 16 August 2025, Mr Neethling requested an update regarding the investigation from Mr Jacka. Mr Neethling expressed that the ongoing uncertainty was having an impact on his financial security, wellbeing and ability to plan for his future.43 Mr Jacka’s response sent at 12:22pm relevantly provided: Monique Roosen will be back on Tuesday - I would like to wrap up investigation on Wednesday or Thursday this week depending on your availability. That would conclude the investigation. I will ask Monique to run you through the particulars on Tuesday/Wednesday we can then meet on Thursday would be my recommendation. The lack of a lock out in this instance may not be the primary issue as you have both stated. Given the limited energy within the system to cause harm to an individual. However the minor works permit is there to ensure that works undertaken have proper consideration given some of the high risk nature of what your usually tasked to do - is the permit incorrectly designated to this activity - should it be covered by something else - I am concerned that the lack of adherence regardless in another circumstance may result in a greater risk to individuals. Its that this activity doesn't usually carry this activity with it and that if it was something more hazardous would you have applied the correct methodology? Would additional training and technical review support you in the proper process. -- 9 of 29 -- [2026] FWC 2411 10 How do you help me make sure that is not the case that in any future endevour all the proper processes are followed for your own safety and the safety of your workmates. Thats the crux of the question I have.44 [56] On 16 August 2025 at 1:47pm, Mr Neethling sent an email to Mr Jacka thanking him for addressing Mr Neethling’s concerns and clarifying the various scenarios. The email relevantly provided: To avoid confusion in the future and to reduce any potential issues, I would suggest you implement task-specific procedures. Before starting any task, I typically inquire about any risks to personnel or equipment. If a risk is identified, I make sure that the risk is isolated properly. I am also open to attending any training that may be required to understand these procedures better and enhance my ability to work safely. Moving forward, I will make it a priority to make sure that the appropriate permits and procedures are in place before starting any task. I take my safety and the safety of my colleagues very seriously, and I am fully committed to adhering to the correct processes in all future work.45 [57] On 17 August 2025, Mr Jacka sent an email to Mr Mario Markovic, Construction Director and Mr David Nixon, Dewatering Superintendent concerning the outcome of the investigations into the incident of 11 June 2025. Mr Jacka stated that the Industrial Relations team recommended termination of employment for both Mr Neethling and Mr Harding.46 [58] There was minimal interaction between the parties between August and November 2025. Ms Roosen gave evidence that she was aware that there was significant staff turnover in the Industrial Relations and Human Resources leadership team within the Project, and these roles were unfilled for some time. As a result, Ms Roosen said that she and Mr Jacka were unable to receive the requisite approvals to proceed with the next steps.47 Complaint by Mr Neethling [59] On 13 August 2025, Mr Neethling made a complaint to Mr Jacka regarding allegations against other employees of intimidation, bullying and theft related to union strikes. In summary, Mr Neethling alleged that he was being targeted by union members for not being a union member and for working on strike days.48 Mr Neethling requested an investigation of his complaint. In response, Mr Jacka indicated that either himself or a colleague would call Mr Neethling the next day to discuss his complaint.49 [60] On 16 August 2025, Mr Jacka advised Mr Neethling that Ms Roosen would investigate his complaint.50 [61] On or about 21 August 2025, Ms Roosen spoke to Mr Neethling regarding his complaint and requested further details and evidence from Mr Neethling.51 The dismissal -- 10 of 29 -- [2026] FWC 2411 11 [62] On or about 20 November 2025, Ms Roosen was made aware that the Industrial Relations team had received the requisite approval from upper management to proceed with the termination of Mr Neethling and Mr Harding.52 [63] Ms Roosen was away from work between 24 November and 22 December 2025. During this period, Mr Andy Flynn, Industrial Relations Advisor, had carriage of Ms Roosen’s matters.53 [64] Sometime during Ms Roosen’s leave, Mr Flynn contacted Mr Neethling via email, directing him to attend a meeting via Microsoft Teams on 5 December 2025 to discuss the outcome of Ms Roosen’s investigation and the decision to terminate Mr Neethling’s employment. Mr Neethling did not attend the meeting, and Mr Flynn was unable to get in touch with Mr Neethling by phone.54 [65] Mr Flynn subsequently directed Mr Neethling, via email, to attend a meeting on 11 December 2025, which Mr Neethling also failed to show up to.55 [66] Subsequently, Mr Flynn contacted Mr Neethling via email, directing him to attend a further meeting via Microsoft Teams on 22 December 2025. Mr Neethling attempted to attend the meeting via Microsoft Teams, but the meeting could not be completed due to connectivity issues.56 [67] Ms Roosen said that having regard to the difficulty in contacting Mr Neethling, on 19 January 2026, she emailed Mr Neethling to advise him that his employment had been terminated effective immediately and that he would be paid in lieu of notice. The attached termination letter advised Mr Neethling that: a. the allegations against him had been substantiated; b. his conduct on 11 June 2025 amounted to a breach of the relevant policies and procedures; and c. having regard to these matters and following careful consideration of the impact of Mr Neethling's behaviour on others, his employment history and economic and personal circumstances, the business had decided to terminate his employment.57 When can the Commission order a remedy for unfair dismissal? [68] Section 390 of the FW Act provides that the Commission may order a remedy if: a. the Commission is satisfied that the person was protected from unfair dismissal at the time of being dismissed; and b. the person has been unfairly dismissed. [69] Both limbs must be satisfied. I am therefore required to consider whether Mr Neethling was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Mr Neethling was so protected, whether Mr Neethling has been unfairly dismissed. -- 11 of 29 -- [2026] FWC 2411 12 When has a person been unfairly dismissed? [70] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that: a. the person has been dismissed; and b. the dismissal was harsh, unjust or unreasonable; and c. the dismissal was not consistent with the Small Business Fair Dismissal Code; and d. the dismissal was not a case of genuine redundancy. Initial matters [71] Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application: a. whether the application was made within the period required in subsection 394(2); b. whether the person was protected from unfair dismissal; c. whether the dismissal was consistent with the Small Business Fair Dismissal Code; d. whether the dismissal was a case of genuine redundancy. [72] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed: a. the person is an employee who has completed a period of employment with his or his employer of at least the minimum employment period; and b. one or more of the following apply: i. a modern award covers the person; ii. an enterprise agreement applies to the person in relation to the employment; iii. the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold. [73] There is no dispute about these matters and I am satisfied that: a. the application was made within the period required in s.394(2); b. at the time of dismissal, Mr Neethling was a person protected from unfair dismissal because: a. Mr Neethling was an employee who completed a period of employment with SC Hydro of at least the minimum employment period; and -- 12 of 29 -- [2026] FWC 2411 13 b. The SC Hydro Pty Ltd and the Australian Workers’ Union-Snowy 2.0 Project Underground Works Project Agreement 2025 – 2029 applied to Mr Neethling; c. the Small Business Fair Dismissal Code does not apply; and d. Mr Neethling’s dismissal was not a case of genuine redundancy. [74] Having considered each of the initial matters, I am required to consider the merits of the application. Was the dismissal harsh, unjust or unreasonable? [75] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account: a. whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and b. whether the person was notified of that reason; and c. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and d. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and e. if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and f. the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and g. the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and h. any other matters that the Commission considers relevant. [76] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.58 Was there a valid reason for the dismissal related to Mr Neethling’s capacity or conduct? [77] In order for there to be a valid reason, the reason for the dismissal should be ‘sound, defensible or well founded’59 and should not be ‘capricious, fanciful, spiteful or prejudiced.’60 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.61 -- 13 of 29 -- [2026] FWC 2411 14 [78] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.62 The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.63 Submissions [79] SC Hydro submitted that the Commission will be satisfied on all of the evidence that it had a valid reason for dismissing Mr Neethling for the following reasons: (a) Mr Neethling was required to comply with each of the SC Hydro’s safety policies and procedures, including the Project Rules, the Isolation & Tagging Procedure, the Permit to Work Procedure and the Health & Safety Management Plan (including the SHL Life Saving Rules). This obligation was made clear in Mr Neethling’s induction, training and contract of employment. (b) The conduct of Mr Neethling was deliberate. As a PTW Red Lock trained employee, Mr Neethling made a conscious decision not to use the required isolation locks, and no preparation had been made for their use. (c) The conduct of Mr Neethling was inconsistent with his obligations as an employee of SC Hydro as it breached SC Hydro’s safety policies and procedures and the law, including the Work Health and Safety Act 2011 (NSW). The conduct posed a risk to the health and safety of Mr Neethling and others working at the site. Findings Did Mr Neethling’s conduct breach SC Hydro’s safety policies and procedures? [80] The evidence in relation to Mr Neethling’s knowledge of SC Hydro’s safety policies and procedures was sparse. Mr Neethling’s contract of employment which apparently referred to these policies and procedures was not in evidence. There was no evidence in relation to Mr Neethling’s induction. Although Mr Neethling was taken to SC Hydro’s safety policies and procedures during cross-examination and appeared to be generally aware of them, there was no evidence that Mr Neethling had received comprehensive training in relation to these documents and that he had detailed knowledge of them. [81] In relation to Mr Neethling’s training, SC Hydro provided Mr Neethling’s competency record, Mr Neethling’s Red Lock Training Competency Assessment and Mr Neethling’s Permit to Work Role Authorisation which confirms his roles as a Permit Holder and an Authorised Isolator. [82] In correspondence to Mr Jacka during the disciplinary process, Mr Neethling said on 16 August 2025 that before starting any task, he typically inquired about any risks to personnel or equipment and that if a risk is identified, he ensured that the risk is isolated properly. -- 14 of 29 -- [2026] FWC 2411 15 [83] During the hearing, Mr Neethling said that he and Mr Harding assessed the task they were instructed to carry out as a new job with a new procedure. Mr Neethling said that he believed that it was not necessary to sign on to the PTW unless the task was high risk or involved stored energy. [84] Both Mr Neethling and Mr Harding gave evidence there was no specific JHA for inspecting pipe spools and that they each believed the plumbing JHA applied and signed on to it. They each said that they had completed a ‘take 5’ risk assessment and that they formed the view that because the pipework was not pressurised, the work was low risk so the PTW and the associated SWMS and JHA did not apply. They said that the two valves at the bottom of the fish tank were isolated, Mr Neethling applied his purple lock to the values and Mr Neethling requested the electricians to isolate the electric pumps and remain on standby. Mr Neethling said that he now accepted SC Hydro’s view that the PTW applied but genuinely believed at the time that it did not. [85] In relation to whether the PTW applied, I note that the PTW Procedure provides at paragraph 1.1 that the purpose of the procedure is to document a formal, approved procedural system of work used to plan, control and complete high-risk work’.64 [86] Mr Hussell’s evidence is that the PTW applied because it covered a range of routine works including ‘isolation of live mechanical and electrical equipment for mechanical alterations and repairs, including welding, grinding, pipe and pump installations and repairs and access via EWP [elevating work platform]’.65 [87] Strictly speaking, the work that Mr Neethling and Mr Harding were directed to perform was not ‘pipe…installations and repairs’ but simply the inspection of pipe spools. However, Mr Neethling and Mr Harding were required to use power tools to disassemble the pipe for the purpose of inspection then to reassemble it so in that sense the work was comparable to installing and/or repairing pipes which also would require the use power tools for their disassembly and reassembly. [88] Further, separately from the PTW, Mr Neethling was required to comply with the Isolation and Tagging Procedure which relevantly provided at clause 1.1: This document specifies minimum system requirements for the isolation and lockout of temporary and permanent Mechanical and HV/LV Electrical plant & equipment from hazardous energy sources for the FGJV Snowy 2.0 Project. … This procedure is designed to protect personnel, equipment and the environment from injury or damage while carrying out contract work scope. • This procedure shall apply for all FGJV Snowy 2.0 project activities. • This procedure shall be followed by all FGJV and subcontractor personnel. • Personnel who breach this procedure may be subject to disciplinary proceedings. • Any risks to health & safety or potential damage to devices associated with Extra Low Voltage (ELV) shall be risk assessed and managed accordingly (i.e. disconnect, open switches, tape & tag etc.).66 -- 15 of 29 -- [2026] FWC 2411 16 [89] Clause 2.1.7 of the Isolation and Tagging Procedure provides: Personal Lock Isolations (RED Lock) • Personnel shall place their project issued Personal Red Lock and Danger Tag onto the Lock Box or hasp for any Permit they are working under that involves isolations to prevent inadvertent operation of a system or equipment. Personal locks and hasps may be used for single point isolations for diesel-powered mobile plant and equipment, for example (Generators, Forklifts, Franna’s, Graders, Excavators, Front End Loader). • Diesel powered mobile generators feeding fixed plant with step up transformers to High Voltage shall require a Permit to Work prior to this isolation technique being employed to capture SIMOPS.67 [90] In relation to using the purple lock, the Isolation and Tagging Procedure provides: Single Point Isolation Lock (PURPLE Lock) Used by Authorised Isolators to secure a hasp on Single Point isolations • PURPLE lock and danger tag in place no longer than one shift unless unsafe to de-isolate. • Does not apply to High Voltage equipment or apparatus. • Written authorisation to Isolate plant and equipment in a Commissioning/Operational Area must be approved by the on-shift Supervisor e.g., Isolating a Motor to check Windings / Isolating a Process line to tune a valve. • The Single Point Isolation shall NOT be used for the express purpose of circumventing the Isolation and Tagging Procedure e.g. using a Single Point Isolation to replace a Minor Works Isolation Permit. • An Isolation of Hazardous Energy Certificate (S2-FGJV-HSA-FRM-0204) shall be used to record isolation points and verified by a second Authorised Isolator for the duration of the associated JHA and returned to the Permit Office at the completion of each swing for archiving. For Cutterhead Inspections, Face Mapping etc refer to Appendix A.68 [91] In relation to single point isolations, clause 2.5 of the Isolation and Tagging Procedure provides: SINGLE POINT ISOLATIONS • Not more than one item of plant, equipment or service is isolated. • All work under this condition will not require a permit to work and is to be used for the express purpose of discipline specific repairs e.g. Electrical or approved single point isolation ofoperational plant e.g. batch plant or conveyors. • Isolation point is located within the single item. • Not more than five (5) personnel, including the Authorised Isolator, are required to inspect/work on the plant, equipment, or service. • Ensure the Isolation Point is correctly identified prior to isolation, recorded on the Isolation of Hazardous Energy Certificate (S2-FGJV-HSA-FRM-0204), and verified by a second (2nd) Authorised Isolator. The Isolation of Hazardous Energy Certificate (S2-FGJV-HSA-FRM- 0204) is to be kept as part of the JHA documentation and returned to the FGJV permit office to be archived on completion of the Authorised Isolators work roster. • Ensure the energy sources are correctly identified. • Authorised Isolator to place an isolation hasp, personal PURPLE Lock and a personal Danger tag, to the isolation point and retain the key. • Ensure their Personal Danger Tag is printed legibly with ALL details fully completed. -- 16 of 29 -- [2026] FWC 2411 17 • Check that the isolation is effective by attempting to start the equipment. • In all instances the Authorised Isolator shall place a PURPLE lock and hasp to all single point isolations. Personnel (a maximum of five (5)) shall then place their Personal RED Isolation locks and Danger Tags onto the hasp. If the Authorised Isolator is part of the Workgroup, he/she shall place their personal RED lock and danger tag onto the hasp. • PURPLE lock and hasp in place no longer than one shift unless unsafe to de-isolate. If it is unsafe to de-isolate the Authorised Isolator shall notify the Permit Office and a BLUE control lock and Out of Service tag shall be issued by the Permit Coordinator to replace the Authorised Isolator PURPLE lock and tag on the isolation point. Refer Appendix A for Cutterhead inspections etc. • Does not apply to High Voltage equipment or apparatus. • A CLEAR SCOPE OF WORK MEETING THE ABOVE CRITERIA [92] It appears from these extracts that a single point isolation does not require signing on to the PTW and may have applied to the task on 11 June 2025 given that Mr Neethling and Mr Harding understood that the electricians would isolate the electrical pumps, leaving the diesel pump as the only piece of equipment to be isolated. However, clause 2.5 of the Isolation and Tagging Procedure indicates that there are additional requirements in relation to single point isolation such as the completion of Isolation of Hazardous Energy Certificate and other personnel placing their Personal Red Isolation locks and Danger Tags onto the hasp. There is no evidence that Mr Neethling, as the Authorised Isolator, followed these requirements. [93] One of the challenges in considering this matter is that Mr Neethling did not explain his actions on 11 June 2025 with reference to how they complied with the relevant policies and procedures but rather that he assessed the situation as being low risk. The level of risk is relevant to my overall consideration of the matter given SC Hydro’s submission that the dismissal was for a valid reason because the conduct posed a risk to the health and safety of Mr Neethling and others working at the site and also because this was a matter which Ms Roosen considered when recommending Mr Neethling’s termination. However, there does not appear to be anything in any of the documents which indicates that Mr Neethling’s assessment of the level of risk is relevant to which policies and procedures he was required to comply with. The only plausible explanation for Mr Neethling’s focus on risk is that he did not have detailed knowledge of SC Hydro’s policies and procedures because of lack of training. Mr Neethling did not allege that this was the case but it is difficult to ascertain any other reason for Mr Neethling’s approach to his work. In this regard, I note that Mr Neethling’s Red Lock Training Competency Assessment record comprised of 12 short questions and answers including multiple choice and ‘true or false’ style questions. It is not apparent from this document that Mr Neethling had a thorough knowledge of the Isolation and Tagging Procedure. [94] Nevertheless, Mr Neethling accepted during the hearing that the PTW was applicable to the work he performed on 11 June 2025 and that he should have signed on to it and followed the associated procedures. Given that Mr Neethling was the Leading Hand on 11 June 2025, I believe that he should have checked with supervisor as to the relevant safety policies and procedures given that he had not previously undertaken the task of inspecting the pipe spools. Was Mr Neethling’s conduct deliberate? [95] Mr Neethling presented as a genuine and credible witness who was committed to his role with SC Hydro and to the safety of his colleagues. His explanation for his conduct was -- 17 of 29 -- [2026] FWC 2411 18 consistent through the HSE and disciplinary investigations. Mr Neethling had prepared a model of the fishtank which he used during the hearing to explain why he believed that the work undertaken was low risk. This indicated to me that he had spent considerable time reflecting on his actions and contemplating whether he had in fact exposed himself and his colleagues to risk of harm. [96] Although the PTW appears to cover the work undertaken by Mr Neethling, I accept that it does not refer to the specific task. It would have been helpful if SC Hydro had provided the plumbing JSA so it was possible to assess the reasonableness of Mr Neething’s actions in following it but SC Hydro did not do so. [97] As Mr Neethling had no previous disciplinary record and SC Hydro did not have any concerns about Mr Neethling’s safety practices, I think that it is likely that Mr Neethling was able to comply with policies and procedures which explicitly stated that they applied to the work he was doing but may have struggled to identify the relevant procedure if he believed it was unclear or he was performing a task that he had not previously undertaken. [98] Contrary to SC Hydro’s submissions, I do not accept that Mr Neethling deliberately breached SC Hydro’s policies and procedures and there is simply no evidence available to support such a finding. Did the conduct pose a risk to the health and safety of Mr Neethling and others working at the site? [99] The Safety Investigation Report completed by HSE recorded that the investigation was carried out by Mr Alistar Finlay, HS Advisor, Mr Daniel Slatter, HS Advisor and Mr Todd Wench, HS Manager. There is no indication that Mr Neethling was provided with the Safety Investigation Report during the disciplinary investigation or before his dismissal. The Safety Investigation Report provided that the ‘Initial Risk Rating (per initial notification)’ of the incident on 11 June 2025 was ‘low’ and that the Final Risk Rating (per outcome of investigation) was ‘moderate’.69 [100] One of the last sections of the Safety Investigation Report was called ‘Investigation Review and Approval’ which was signed by five managers, each of whom recorded a ‘Level Required’ based on ‘Final Risk Rate’. The ‘Level Required’ was recorded as ‘Low’ on 16 June 2025 for Alistair Finlay, Investigation Team Lead and Todd Werch, Site HSE Manager. The ‘Level Required’ was recorded as ‘Low’ on 17 June 2025 for Matteo Passarani, Area Construction Manager. The ‘Level Required’ was recorded as ‘Moderate’ on 17 June 2025 for Chris Stephens, Operations Safety Manager and Mario Markovic, Project Manager.70 [101] It was difficult to understand the basis for the varying assessments of ‘low risk’ and ‘moderate risk’ in the Safety Investigation Report as no explanation was provided in the report and none of the personnel who prepared or signed the report gave evidence at the hearing. The only direct evidence about the level of risk involved in the incident on 11 June 2025 was from Mr Neethling, Mr Harding and Mr Hussell. [102] In his witness statement, Mr Hussell said that if the electric pump was inadvertently turned on, there was a real risk that water from the system could flow out of the un-isolated -- 18 of 29 -- [2026] FWC 2411 19 valves, at significant pressure given the large, 10 inch diameter of the pipework and that if Mr Neethling and Mr Harding came into contact with that high pressure water, there was a real risk of bodily injury. [103] Mr Harding gave evidence at the hearing about hydrostatic head pressure and said that for every metre water rises, there is 9.81 kpa (kilopascal) of vertical head pressure. Mr Harding said that the fish tank is approximately three metres tall, therefore there will be roughly 30 kpa head pressure from the fish tank. Mr Harding explained that this is very low pressure compared to a domestic shower which has head pressure of 500 kpa. He said that at 30 kpa, there is physically no way the fish tank can be pressurised and that the worst thing that could have happen if the electrical pump had been turned on was Mr Harding and Mr Neethling getting wet boots. [104] I prefer Mr Harding’s evidence about this matter compared to Mr Hussell’s as Mr Harding is a trade qualified plumber and therefore would have more expertise in relation to the potential risks of water pressure than Mr Hussell, who is a mechanical fitter. Further, I note that Mr Hussell appeared to distance himself from his evidence that there was a real risk of bodily injury arising from the incident on 11 June 2025 when he was asked questions in cross- examination about this matter. During cross-examination, Mr Hussell said that he did not question Mr Neethling’s and Mr Harding’s assessment that the task was low risk, but the issue was whether isolation protocols had been followed. Mr Jacka also seemed to accept that the task was low risk when he said to Mr Neethling in his email of 16 August 2025, that the failure to apply the red lock may not be the primary issue given the limited energy within the system to cause harm to an individual. [105] In conclusion, there is no evidence before me which establishes that Mr Neethling’s and Mr Harding’s assessment that the task was low risk was incorrect. There is no evidence which establishes that the risk was moderate or that Mr Neethling’s actions on 11 June 2025 had the potential to cause harm to himself or anyone else. Conclusion regarding valid reason [106] I accept SC Hydro’s submission that it is well established that it is lawful and reasonable for an employer to require an employee to comply with policies including those relating to safety and find that Mr Neethling’s non-compliance with the PTW and associated policies was a valid reason for dismissal. However, I do not accept that Mr Neethling’s conduct was deliberate or that it posed a risk to the health and safety of Mr Neethling and others working at the site. These are matters which I have considered further under s.387(h). Was Mr Neethling notified of the valid reason? [107] Proper consideration of s.387(b) requires a finding to be made as to whether Mr Neethling ‘was notified of that reason’. Contextually, the reference to ‘that reason’ is the valid reason found to exist under s.387(a). [108] Based on the evidence before me, I find that Mr Neethling was notified of the valid reason in the termination letter dated 19 January 2026. -- 19 of 29 -- [2026] FWC 2411 20 Was Mr Neethling given an opportunity to respond to any reason related to his capacity or conduct? Submissions [109] Mr Neethling contended that he was not given a proper opportunity to respond to the allegations before a decision was made. [110] SC Hydro contended that Mr Neethling was provided with a proper opportunity to understand and respond to the allegations about his conduct. Relevantly, SC Hydro points to the show cause letter provided on 25 June 2025, Mr Neethling’s responses of 25 and 30 June 2025 and its attempts to schedule outcome meetings on 5, 11 and 22 December 2025. Findings [111] I accept that SC Hydro provided Mr Neethling with an opportunity to respond to its concerns about his conduct on 11 June 2025 by asking him to respond to its letter of 25 June 2025. However, I find it unusual that it did not seek to speak with Mr Neethling during the disciplinary investigation and did not advise him of its preliminary decision to dismiss him and give him an opportunity to raise any mitigating factors before making a final decision. In conducting the HSE investigation, Mr Finlay took a statement from Mr Neethling on the night of the incident, however when the Industrial Relations team commenced the disciplinary investigation, it did not seek to speak with Mr Neethling or ask him any questions about his responses on 25 and 30 June 2025. This was despite Ms Roosen interviewing multiple persons in the course of her investigation. Further, Mr Jacka stated to Mr Neethling in an email dated 16 August 2025: The lack of a lock out in this instance may not be the primary issue as you have both stated. Given the limited energy within the system to cause harm to an individual. - However the minor works permit is there to ensure that works undertaken have proper consideration given some of the high risk nature of what your usually tasked to do - is the permit incorrectly designated to this activity - should it be covered by something else - I am concerned that the lack of adherence regardless in another circumstance may result in a greater risk to individuals. Its that this activity doesn't usually carry this activity with it and that if it was something more hazardous would you have applied the correct methodology? Would additional training and technical review support you in the proper process. How do you help me make sure that is not the case that in any future endevour all the proper processes are followed for your own safety and the safety of your workmates. Thats the crux of the question I have. [112] This suggests to me that Mr Jacka on behalf of SC Hydro intended to speak with Mr Neethling prior to making a final decision about the nature of the disciplinary action it proposed to take, however this never occurred. Further I note that SC Hydro’s letter of 24 June 2025 advised Mr Neethling that it would consider his response and would arrange a meeting with him to discuss the next steps. However, such a meeting never occurred as the next meeting in the disciplinary process was for the purpose of advising Mr Neethling that he was dismissed. This meeting never occurred due to SC Hydro’s difficulty getting in touch with Mr Neethling in December 2025. -- 20 of 29 -- [2026] FWC 2411 21 [113] Further, the evidence establishes that after Mr Neethling provided his responses to the allegations on 25 and 30 June 2025, Mr Jacka requested that HSE team provide a root cause analysis for the incident. The analysis was provided by Mr Werch, who, according to Ms Roosen, advised Mr Jacka on 11 July 2025 that the main causal factor for the incident was procedures not being used or followed, and the root cause for the incident was ‘poor behaviour and attitude that contributed to the wilful violation’. It is clear that SC Hydro never put to Mr Neethling that it regarded his conduct in failing to follow its procedures as wilful and deliberate although Mr Roosen gave evidence that this is one of the reasons that she recommended that Mr Neethling be dismissed. Further, the root cause analysis was not provided to the Commission and no HSE representative gave evidence during the hearing. [114] Taking all of these matters into account, I find that Mr Neethling was provided with an opportunity to respond to SC Hydro’s concerns that he was in breach of its health and safety procedures but that he was not provided with an opportunity to respond to its view that this conduct was deliberate or to influence its decision about the appropriate disciplinary outcome. Did SC Hydro unreasonably refuse to allow Mr Neethling to have a support person present to assist at discussions relating to the dismissal? [115] Mr Neethling did not contend that he was refused a support person. I also note that the show cause letter informed Mr Neethling that a support person or external representative could assist Mr Neethling in responding and in any meetings related to the disciplinary process. Accordingly, I find that SC Hydro did not unreasonably refuse to allow Mr Neethling to have a support person present to assist at discussions relating to the dismissal. Was Mr Neethling warned about unsatisfactory performance before the dismissal? [116] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant in this matter. To what degree would the size of SC Hydro’s enterprise and the absence of dedicated human resources management specialists or expertise in SC Hydro’s enterprise be likely to impact on the procedures followed in effecting the dismissal? [117] Mr Neethling did not make any submissions regarding these matters. SC Hydro acknowledges that it is a relatively large employer with approximately 1,652 employees and dedicated Human Resources and Industrial Relations capability. What other matters are relevant? [118] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. [119] It has long been established that the effects of dismissal on the personal or economic situation of the dismissed employee may be taken into consideration under s.387(h) of the FW Act.71 -- 21 of 29 -- [2026] FWC 2411 22 [120] An employee’s long and satisfactory work performance or history may also be taken into consideration and, depending on all the circumstances, may weigh in favour of a conclusion that the dismissal of the employee was harsh, unjust or unreasonable.72 Impact of the dismissal [121] Mr Neethling’s weekly wage during his employment was $2,341.80. From 25 June 2025 to 19 January 2026, Mr Neethling was stood down on pay at his ordinary time hourly rate of pay for each rostered workday. Upon his dismissal, Mr Neethling was paid in lieu of his contractual notice period and his outstanding entitlements. [122] On 6 and 29 August 2025, Mr Neethling advised SC Hydro that the ongoing investigation and stand down was having significant psychological and financial impacts on him and his family. Employment history [123] At the time of dismissal, Mr Neethling had been employed by SC Hydro for approximately three and a half years. There is no dispute between the parties that Mr Neethling had no prior disciplinary record during his employment. Mr Neethling also gave evidence that he had never been subject to any other safety investigations during his 30-year career as a Mechanical Fitter. Whether the incident on 11 June 2025 was ‘low risk’ [124] I have already found in my consideration of s.387(a) that there is no evidence before me which establishes that Mr Neethling’s actions on 11 June 2025 had the potential to cause harm to himself or anyone else. As the reason for dismissal included a finding by SC Hydro that Mr Neethling’s actions resulted in a risk to himself and others, this is a matter which weighs in favour of a finding of unfairness. Whether Mr Neethling’s conduct was deliberate [125] The HSE team completed a further form called a ‘Just Culture Disciplinary Assessment’ before forwarding the matter to the Industrial Relations team to investigate. This form provided a ‘Just Culture Assessment’ by reference to eight ‘yes/no’ questions, followed by a ‘Just Culture Outcome’ which provided for one of the following six outcomes: B1- Drug and Alcohol procedure applies B2- Sabotage, malicious damage or intent B3 - Reckless Violation B4 - Inappropriate behaviour which is not aligned to company requirements B5 - Error, slip, lapse or mistake B6 - Blameless error for individual (system to be improved)73 [126] Mr Hyde, who completed the form on behalf of SC Hydro recorded ‘yes’ to the following questions in in the ‘Just Culture Assessment’: -- 22 of 29 -- [2026] FWC 2411 23 • Was the act intended? • Did the individual’s actions reflect little regard or an intent not to confirm to a project requirement? • Was information and/or training clearly provided to the individual previously in relation to the applicable procedure? [127] Mr Hyde then recorded a ‘Just Culture Outcome’ of ‘Reckless Violation’. For Just Culture Outcomes B1-B3, the Just Culture Disciplinary Assessment indicated that application of the disciplinary policy was the next step. For Just Culture Outcomes B4-B6, the Just Culture Disciplinary Assessment indicated that SC Hydro should address failed controls, systems, task, environmental factors & organisational factors. [128] In addition to Mr Hyde recording that Mr Neethling had engaged in a ‘reckless violation’, Mr Werch advised Mr Jacka on 11 July 2025 that the main causal factor for the incident as procedures not being used or followed, and the root cause for the incident as ‘poor behaviour and attitude that contributed to the wilful violation’. [129] During the hearing I referred to these findings by SC Hydro that Mr Neething’s conduct was wilful and deliberate and said to Ms Roosen that the effect of Mr Neethling’s evidence was that he now accepts that the safety policies and procedures cited in the disciplinary process applied to the task, but at the time he did not believe that they did. I asked Ms Roosen whether, if this information was before her, it would have made any difference to her recommendation that Mr Neethling be dismissed. Ms Roosen replied: It would have been a mitigating factor…I can't turn back the clock, but maybe a different decision may have been made at the time. But there, there was no apology from Mr Neethling about his conduct…It's completely his decision, but normally when we see a response from an employee, sometimes they may give an apology when they write their response to a set of allegations. So that wasn't forthcoming from what I recall of Mr Neethling's two responses that might have made a difference. It might have, yes. [130] I have already found in my consideration of whether there was a valid reason for the termination that Mr Neethling’s conduct was not wilful and deliberate. I have also found in my consideration of whether Mr Neethling was provided with an opportunity to respond to the reason for termination that SC Hydro never put to Mr Neethling that it regarded his conduct in failing to follow its procedures as wilful and deliberate. [131] Based on Ms Roosen’s evidence, I find that if Mr Neethling had been provided with an opportunity to respond to SC Hydro’s concerns that that his conduct was wilful and deliberate, Mr Neethling may have convinced SC Hydro that this was not the case and that this may have led to a different outcome, such as the issuing of a warning, rather than dismissal. [132] I also find that Ms Roosen overlooked Mr Neethling’s apology in his response to the allegations dated 25 June 2025, given that she wrongly claimed during the hearing that ‘there was no apology from Mr Neethling about his conduct’. I find that if Ms Roosen had properly reviewed Mr Neethling’s response, this may have also led SC Hydro to consider options other than dismissing Mr Neethling. Other matters -- 23 of 29 -- [2026] FWC 2411 24 [133] Two final matters should be referred to. The first is Mr Neethling’s complaint to SC Hydro about being targeted by union members. Mr Neethling suggested during the hearing that these people were responsible for complaining to Mr Hussell on 11 June 2025 that he had not completed the PTW. This may be the case, however there is no evidence to suggest that the reason that SC Hydro dismissed Mr Neethling is because he was not a union member. [134] The second matter is the length of time it took between Mr Jacka recommending Mr Neethling’s dismissal and SC Hydro effecting the dismissal five months later. I have not taken this matter into account in assessing the fairness of the dismissal, but it would be remiss of me not to observe that the length of time was grossly excessive especially in circumstances where SC Hydro was aware from August 2025 of the emotional toll that the suspension was having on Mr Neethling. In my view no amount of staff turnover can possibly explain why SC Hydro were unable to act on Mr Jacka’s recommendation in a timely manner. Although the delays from December 2025 are attributable to Mr Neethling’s unavailability, it is hardly surprising that Mr Neethling disengaged from the process after hearing nothing from his employer for a period of four months. This matter reflects poorly on SC Hydro particularly with respect to its own psychosocial safety obligations towards Mr Neethling during the disciplinary process. Is the Commission satisfied that the dismissal of Mr Neethling was harsh, unjust or unreasonable? [135] I have made findings in relation to each matter specified in s.387 as relevant. [136] I must consider and give due weight to each of these matters as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. [137] Mr Neethling’s breach of the SC Hydro’s safety policies and procedures establishes that there was a valid reason for the dismissal. This weighs in favour of a finding that the dismissal was not unfair. My findings in with respect to ss.387(b) and (d) also weigh in favour of a finding that the dismissal was not unfair. The matters in ss.387(f) and (g) are neutral considerations and s.387(e) is not relevant. In relation to s.387(c), my finding that SC Hydro provided Mr Neethling with an opportunity to respond to its concerns about his conduct on 11 June 2025 by asking him to respond to its letter of 25 June 2025 weighs in favour of a finding that the dismissal was not unfair. However, SC Hydro’s failure to give Mr Neethling an opportunity to respond to its view that his conduct was deliberate and its preliminary decision to dismiss him are matters which weigh in favour of a finding that the dismissal was unfair. [138] In relation to s.387(h), I have found that Mr Neethling’s conduct was not deliberate and that it did not have the potential to cause harm to himself or anyone else. I also note that Mr Neethling has no disciplinary history with SC Hydro, no record of any safety issues and that he apologised for the incident in his response to the allegations dated 25 June 2025. These matters weigh in favour of a finding that the dismissal was unfair. [139] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of Mr Neethling was harsh and unreasonable because the seriousness of Mr Neethling’s conduct in breaching the SC Hydro’s safety policies and procedures on 11 June 2025 is outweighed by the following matters: -- 24 of 29 -- [2026] FWC 2411 25 • Mr Neethling’s good employment and safety record; • Mr Neethling’s actions on 11 June 2025 did not have the potential to cause harm to himself or anyone else; • Contrary to SC Hydro’s findings which were not put to Mr Neethling, his actions were not deliberate; • Mr Neethling apologised for his actions on 11 June 2025 but this apology was overlooked by SC Hydro; and • SC Hydro failed to consider any disciplinary action other than dismissal. [140] I am therefore satisfied that Mr Neethling was unfairly dismissed within the meaning of s.385 of the FW Act. Remedy [141] Being satisfied that Mr Neethling made an application for an order granting a remedy under s.394, was a person protected from unfair dismissal, and was unfairly dismissed within the meaning of s.385 of the FW Act, I may, subject to the FW Act, order Mr Neethling’s reinstatement, or the payment of compensation to Mr Neethling. [142] Under s.390(3) of the FW Act, I must not order the payment of compensation to Mr Neethling unless: (a) I am satisfied that reinstatement of Mr Neethling is inappropriate; and (b) I consider an order for payment of compensation is appropriate in all the circumstances of the case. Is reinstatement of Mr Neethling inappropriate? Submissions [143] Mr Neethling has sought reinstatement. SC Hydro has submitted that reinstatement or re-employment would be inappropriate because Mr Neethling’s conduct has led to a loss of trust and confidence in him as an employee. SC Hydro submitted that it needs to have trust and confidence in employees to comply with its safety policies and procedures, and applicable laws, especially as the Project involves hazardous work in tunnels around pressurised water systems, and in proximity to high voltage equipment. SC Hydro submitted that Mr Neethling has not demonstrated adequate acknowledgement or insight into his conduct and that its loss of trust and confidence is further compounded by Mr Neethling’s failure to attend the three scheduled outcome meetings in December 2025. Findings [144] It is possible that any future risk caused by Mr Neethling’s non-adherence to policies may be managed by further training. However, it was concerning that Mr Neethling continued to be focused throughout the hearing on whether the task on 11 June 2025 was low risk rather than engaging in the requirements of the applicable policies. Mr Neethling did not address the requirements of SC Hydro’s health and safety policies at all. For example, he did not explain -- 25 of 29 -- [2026] FWC 2411 26 why he claimed that single point isolation applied to the task with reference to the Isolation and Tagging Procedure and did not explain how his actions on 11 June 2025 complied with that procedure. [145] Although I have concerns about SC Hydro failing to consider alternatives to dismissal, I cannot be satisfied on the material before me that there is no future risk of Mr Neethling contravening SC Hydro’s safety policies. In these circumstances and given the safety critical environment in which the work is performed, I find that reinstatement of Mr Neethling is inappropriate. Is an order for payment of compensation appropriate in all the circumstances of the case? [146] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, ‘[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one.’74 [147] Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.75 [148] Although Mr Neethling has sought compensation as an alternative remedy to reinstatement, Mr Neethling has not provided any evidence of his financial situation since the dismissal or made any submissions about why an order for payment of compensation is appropriate in all the circumstances of the case. [149] Further, Mr Neethling has provided no evidence or submissions in relation to the matters that I am required to take into account under s.392(2) when determining an amount to be paid as compensation in lieu of reinstatement which are: (a) the effect of the order on the viability of SC Hydro’s enterprise; (b) the length of Mr Neethling’s service; (c) the remuneration that Mr Neethling would have received, or would have been likely to receive, if Mr Neethling had not been dismissed; (d) the efforts of Mr Neethling (if any) to mitigate the loss suffered by Mr Neethling because of the dismissal; (e) the amount of any remuneration earned by Mr Neethling from employment or other work during the period between the dismissal and the making of the order for compensation; (f) the amount of any income reasonably likely to be so earned by Mr Neethling during the period between the making of the order for compensation and the actual compensation; and (g) any other matter that the Commission considers relevant. -- 26 of 29 -- [2026] FWC 2411 27 [150] In the circumstances I will be issuing directions for the parties to file further material in relation to whether an order for payment of compensation is appropriate, and if so, the amount to be paid as compensation to Mr Neethling. Conclusion [151] I have concluded that there was a valid reason for Mr Neethling’s dismissal and that the dismissal was harsh and unreasonable having regard to all of the matters in s.387. I consider that an order for reinstatement is inappropriate. I will determine whether an order for payment of compensation is appropriate and if so, the amount, after receiving further evidence and submissions from the parties. DEPUTY PRESIDENT Appearances: Mr A. Neethling, Applicant for himself Mr T. Sebbens, Solicitor for the Respondent Hearing details: 2026 21 April Online Printed by authority of the Commonwealth Government Printer <PR811475> 1 Witness Statement of Monique Roosen dated 13 April 2026 (Roosen Statement) [1], Digital Hearing Book (DHB) 295 2 Outline of Submissions by SC Hydro [9], DHB 131 3 Ibid [10], DHB 131 4 Witness Statement of Levi Hussell dated 13 April 2026 (Hussell Statement) [4], DHB 147 5 Hussell Statement [8]-[10], DHB 148 6 Ibid [10]-[11], DHB 148 -- 27 of 29 -- [2026] FWC 2411 28 7 Ibid [13], DHB 149 8 Ibid [14]-[15], DHB 149 9 Roosen Statement [23], DHB 301 10 Hussell Statement [16], DHB 149 11 Ibid [17], DHB 149 12 Ibid [36], DHB 155 13 Ibid [18], DHB 150 14 Ibid [20]-[23], DHB 150-151 15 Ibid [24], DHB 151-152 16 Ibid [25], DHB 152 17 Witness Statement of Albert Neethling [2], DHB 29 18 Ibid 19 Ibid [3], DHB 30 20 Hussell Statement [26], DHB 152 21 Ibid [27]-[28], DHB 152 22 Ibid [29], DHB 153 23 Ibid [33], DHB 154 24 Ibid [30], DHB 153 25 Ibid [31], DHB 154 26 Ibid [32], DHB 154 27 Roosen Statement [9], DHB 296 28 Ibid [10], DHB 296=297 29 Ibid [11], DHB 297 30 DHB 438 31 Roosen Statement [15], DHB 299 32 DHB 439-441 33 Roosen Statement [17], DHB 299-300 34 Ibid [18], DHB 300 35 Ibid [19], DHB 300 36 Ibid [20], DHB 300 37 Ibid [23], DHB 301 38 Ibid [24], DHB 301 39 DHB 12 40 DHB 13 41 DHB 17 42 DHB 18 43 DHB 23-24 44 DHB 25-26 45 DHB 15 46 Roosen Statement [15], DHB 301 47 Ibid [26], DHB 301 48 DHB 22-23 49 DHB 24 50 DHB 24-25 -- 28 of 29 -- [2026] FWC 2411 29 51 DHB 26 52 Ibid [27], DHB 301-302 53 Ibid [28], DHB 302 54 Ibid [29]-[30] DHB 302 55 Ibid [30] DHB 302 56 Ibid [31] DHB 302 57 Ibid [33] DHB 302 58 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69] 59 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373 60 Ibid 61 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685 62 Edwards v Justice Giudice [1999] FCA 1836, [7] 63 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24] 64 DHB 223 65 Hussell Statement [18], DHB 150 66 DHB 272 67 DHB 278 68 Ibid 69 DHB 304 70 DHB 306 71 Ricegrowers Co-operative v Schliebs PR908351 (AIRCFB, Duncan SDP, Cartwright SDP, Larkin C, 31 August 2001), [26] 72 Telstra Corporation v Streeter [2008] AIRCFB 15, [27] 73 DHB 308 74 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9] 75 Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7] -- 29 of 29 --