Chris Elliot v Stradbroke Ferries Pty Ltd

[2015] FWC 5477

[2015] FWC 5477

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009
s.739—Dispute resolution

Chris Elliot
v
Stradbroke Ferries Pty Ltd
(C2015/2991)

COMMISSIONER SIMPSON BRISBANE, 25 SEPTEMBER 2015

Alleged dispute about any matters arising under the Stradbroke Ferries Limited Ferry Operations Enterprise Agreement 2010.

[1] This recommendation is relevant to the decision issued 25 September 2015 PR57128. I have formed a preliminary view that if this dispute were subject to an arbitrated outcome, the Applicant’s substantive claims are likely to be unsuccessful, for the following reasons.

[2] The Applicant has raised a dispute in relation to a matter that is dealt with in great detail by the Respondent’s Inappropriate Behaviour Policy. It is not in dispute that the Applicant and the Respondent were bound to act in accordance with the principles contained in this policy. This fact is reinforced by clause 21 of the Agreement.

[3] On the material that is presently before the Commission, it appears that the Respondent has followed the policy in relation to issuing the Applicant with the First and Final Warning. The Respondent has also followed the ‘Right of Review’ procedures outlined in the policy, which states that ‘the decision of the reviewing person and the CEO will be final and be binding by both parties.’ I am of the view that as the Right of Review process has run its course, and the reviewing person and the CEO have issued a decision, that decision ultimately brings the matter to a definite finality. Further, I am of the view that the Applicant accepted to be ‘bound’ by the decision in the ‘Right of Review’ process when it was instigated.

[4] It is accepted by both parties that the Inappropriate Behaviour Policy does not form part of the Agreement. I am of the view that whilst there is jurisdiction to deal with the dispute, I am inclined to consider that the decision made by the Respondent in its ‘Right of Review’ process is ‘binding’ and ‘final’ and an arbitration in this matter is unlikely to change that fact.

[5] I have decided to adopt the course of issuing a recommendation separately from, and in addition to the decision in the jurisdictional matter as I have formed the view it may save time and cost for both parties.

[6] On that basis of the views set out above, I recommend that whilst I have found jurisdiction exits in a separate decision, the application should not be pressed. If the applicant does not accept this recommendation and still wishes to pursue the matter it would be my intent to refer the file to the panel head for re-allocation.

COMMISSIONER

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<Price code {A}, PR570663>