Shared responsibility for mistakes

The Fair Work Commission’s recent decision in Peto v Ausgrid Management Pty Ltd is an interesting example of collective responsibility in the workplace and how workplace investigators can deal with uncertainty.

Sydney suffered some severe storms in December 2018. The power supply to many homes was affected. Mr Peto was one of the Ausgrid employees involved in reconnecting power. He worked as part of a five person team.

Unfortunately, a significant mistake was made while the team was reconnecting power to one house. The potentially fatal error involved the live and earth connections at the house being reversed. The resident immediately reported smoke coming out of a wall and a phone charger being ‘spat out’ of a socket. Happily, the situation was fixed without anyone being hurt.

The technical cause of the error was diagnosed relatively quickly as being an incorrect connection at the switchboard of the house.

The question of who was responsible for the error was more difficult to determine. Team members gave conflicting accounts to the workplace investigator about exactly what had happened.

Ultimately, the workplace investigator was unable to conclude which team member had made the incorrect connection. However, he determined that – whoever carried out the connection – the underlying cause of the mistake was a “gross breakdown in communication” between Mr Peto and two other team members.

The same consequences were applied to all three of these team members. Each of them received a formal warning.

Two of the team members accepted that outcome. Mr Peto challenged the decision under the dispute settlement procedure of Ausgrid’s enterprise agreement.

Mr Peto’s position was that he was responsible for reconnecting power at the nearest pole (which was done correctly) but not the house. He argued it was unreasonable to issue a warning to him for an error where there was no finding that he made the mistake.

The Commission rejected the argument that the workplace investigator ought to have made a finding about which employee had carried out the faulty connection. The Commission accepted that – given the conflicting evidence – not making such a finding was appropriate.

The Commission stated:

“The evidence makes clear that in the circumstances faced that day and which are commonly faced for this type of work, there must be a high level of communication and understanding of who performs what task, or step in the process. If a failure occurs in this respect, it seems to me it is only logical that all members of the Team have a shared responsibility. Shared responsibility for carrying out a job safely must also mean a shared understanding that not only are certain aspects of the job allocated, but that the work is done. In such safety critical work, assumptions as to who had done what in respect to vital safety checks, is extremely risky and could have catastrophic consequences.”

In the circumstances, the Commission found that:

"the disciplinary action proposed for Mr Peto is not unreasonable. The proposed disciplinary outcome does not ‘lack an evident and intelligible justification’.”

The case is a useful example of how workplace investigators can approach a situation where they are unable to form a view on the balance of probabilities about precisely what happened during an incident. This decision suggests that, in those circumstances, it is still reasonable for the investigator to make findings on responsibility and misconduct in the face of that uncertainty.