Christina Towns v Community Services Directorate Act Government
[2018] FWC 4271
•20 JULY 2018
| [2018] FWC 4271 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Christina Towns
v
Community Services Directorate ACT Government
(C2018/938)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 20 JULY 2018 |
Application for review of decision in accordance with the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013-2017 – warning issued to be varied slightly but the decision under review otherwise not disturbed.
[1] On 22 February 2018 Mrs Christina Towns (the Applicant) lodged an application under s.739 of the Fair Work Act 2009 (the Act) and in accordance with the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013-2017 1 (the Agreement). Mrs Towns in her application seeks to be absolved of any wrong doing and have any warnings removed from her personal file and states that the dispute relates to Sections H though to J of the Agreement which respectively deal with Workplace Values and Behaviours, Internal Review Procedures and Appeal Mechanism.
[2] The application was the subject of conferences convened by the Fair Work Commission (the Commission) on 8 March and 5 April 2018 which failed to resolve the matter. Directions were subsequently issued for the filing of submissions and any evidentiary material to be relied upon by the parties. At the latter conference the parties agreed that the Commission would determine the matter on the papers.
[3] For the reasons outlined below, I have concluded that the warning issued to Mrs Towns should be varied to delete the final sentence of the warning and that the decision of the delegate of the head of service should not otherwise be disturbed.
Background
[4] Mrs Towns is employed by the Respondent as an Operations Manager within the Child and Youth Protection Services (CYPS) at the Senior Officer Grade B classification level.
[5] On 9 October 2015 Ms Ronia McDade, Senior Manager - Performance with CYPS, was tasked to undertake a preliminary assessment under Section H2 of the Agreement into allegations of misconduct against Mrs Towns. Ms McDade in her report of 19 November 2015 recommended that the matter be investigated under clause H2.2(d) of the Agreement. Mrs Towns did not participate in the preliminary assessment.
[6] The allegations of misconduct were subsequently referred to the Respondent’s Professional Standards Unit (PSU) on 16 December 2015 for investigation. The allegations were summarised in the Respondent’s outline of submissions as follows:
(i) on 8 July 2015 Mrs Towns acted inappropriately by disclosing protected information (Allegation 1) and facilitating a meeting (Allegation 2); and
(ii) between 1 June and 15 September 2015 Mrs Towns failed to keep appropriate records in line with her requirements under the Territory Records Act 2002 (ACT) (the TR Act) (Allegation 3). 2
[7] The PSU finalised its Investigation Report on 21 November 2016 concluding in respect of Allegations 1 and 2 that Mrs Towns did not act inappropriately. As to Allegation 3 the PSU concluded “On the basis of the information provided, there is sufficient evidence to conclude, on the balance of probabilities, that Ms Towns, between 1 June 2015 and 15 September 2015 failed to keep appropriate records in line with her requirements under the Territory Records Act 2002 …” 3
[8] On 6 April 2017, Ms Bernadette Mitcherson, a delegate of the Respondent’s head of service, effectively endorsed the Investigation Report findings and determined that the failure to keep appropriate records constituted a breach of Mrs Towns’ obligations as a public sector employee as set out in s.9 of the Public Sector Management Act 1994 (ACT) (the PSM Act). Ms Mitcherson made a preliminary finding of misconduct pursuant to clause H6.5 of the Agreement and proposed a fine of $1000 and a written warning and admonishment.
[9] In subsequent developments, on 17 July 2017 Ms Mitcherson wrote to Mrs Towns with a notice of disciplinary action confirming that she had taken into account the various written responses provided by Mrs Towns and had determined that the finding of misconduct and proposed sanctions be confirmed.
[10] On 20 July 2017 Mrs Towns initiated an appeal in accordance with clause J2 of the Agreement. In her email initiating the appeal Mrs Towns set out the grounds of appeal as follows:
“I am appealing on the following grounds:
1) Procedural fairness and natural justice, which is outlined in my right of reply letter (copy attached):
• the complainant who brought this matter to the attention of the Senior Director, was the person who initially undertook the preliminary investigation. My understanding is that natural justice and procedural fairness applies and that anybody involved in the complaint should not investigate a complaint or being involved in any of the investigation process whether preliminary or not;
• I was also not given the opportunity to explain my side of the situation initially, because I had sought legal advice and this advice was not to make any statements at that time until a number of matters were clarified which included having somebody else undertake the preliminary investigation who was impartial and not involved in the matter in any way. The Directorate was given this advice from my legal representative but this was ignored. I was then not given any further time to respond or reply and the matter was sent to PSU for formal investigation.
• this matter has taken 2 years and 1 month to come to the current conclusion;
• I was also not given all the information from the investigation, even though I asked for information to be provided to me and my notes that I handed over to the investigators to be returned. My notes were returned but no other material. I never received a copy of the actual report undertaken by the PSU, nor any other information ie witness statements etc;
• Initially, I was also told three different things in regard to what I had done (you will see this spelt out in the Right of Reply Letter from me to the Delegate) and in the final outcome have been informed it was my failure to complete accurate records and is what I am being given disciplinary action for;
• There were other parties involved in this situation and to my knowledge nobody else has been admonished for not keeping records or in fact for the error that occurred in the first place ie incorrect information given to a Psychologist who was undertaking an assessment and then this information was inaccurately provided to the Children’s Court. The record has been changed as a result of my intervention in this matter. This has never been acknowledged through this process.
• Additionally, in regard to natural justice there are countless examples of where notes are not put onto the system within Child and Youth Protection Services and this has been well documented in regard to the many enquiries that we have been subject to in the past. I have recent examples where this continues to happen now and evidence from peers and colleagues who provided this at the Right of Reply stage, but I do not believe these were taken into account by the Delegate;
1) Penalty inappropriate for finding
• I also consider that the penalty is far in excess of what a person who has 26 years of public service, never had any allegations previously substantiated, and has had an exemplary record having been acknowledge by receiving a Public Service Excellence Award in 2013 and many Chief Executive Awards and accolades from Ministers and other significant persons both inside and outside the public service. My good service and record has not been taken into account in regards to the penalty that has been handed down by the Delegate.” 4 (Attachment not included)
[11] On 8 December 2017 the Appeal Panel Report was finalised. The Appeal Panel’s final recommendations are set out below:
“25. The panel recommends that the finding of failure to comply with requirements relating to record keeping is upheld with an admonishment provided to Ms Towns linked to a performance management plan, is a suitable disciplinary action in this case.
26. The panel recommends no financial penalty should be imposed.
27. The panel recommends that external to Ms Towns complaint, the investigation process be reviewed as we believe that there were failings within the process.” 5
[12] The Appeal Panel in its report dealt with each of the grounds of Ms Towns’ appeal and made comments/findings against each of the elements. Key aspects of the report are set out in the following table 6.
Appeal Ground | Appeal Panel Comments/Findings |
Procedural fairness and natural justice… | 8. … Given that Ms McDade was Ms Towns’ immediate supervisor … it is not unreasonable for her to both lodge a complaint and undertake the initial assessment … On that basis the panel does not believe that there has been a breach of the rules of natural justice and believes that Ms Towns was afforded procedural fairness at that point. |
I was also not given the opportunity to explain my side of the situation initially, because I had sought legal advice and this advice was not to make any statements at the time until a number of matters were clarified … The Directorate was given this advice … but this was ignored. I was then not given any further time to respond or apply and the matter was sent to PSU for investigation. | 11. On the basis of the Panel’s findings in relation to the first point of Ms Towns’ appeal that there has been no breach of procedural fairness, the panel feels that this allegation cannot be sustained. |
THIS MATTER HAS TAKEN 2 YEARS AND 1 MONTH TO COME TO THE CURRENT CONCLUSION | 12. The Panel accepts Ms Towns’ complaint … and believes that… the time elapsed between the findings of the initial assessment and finalising the report and subsequent advising of the outcome and sanction to be imposed is unacceptable and influences the Panel’s findings. The length of time has impacted on the Panel’s findings in relation to natural justice as it feels that having this issue unresolved for more than two years has been unacceptable. |
I was not given all the information from the investigation, even though I asked for information to be provided to me and my notes that I handed over to the investigators to be returned … I never received a copy of the actual report undertaken by the PSU, or any other information ie witness statements etc | 13. There does not appear to be any information on the papers provided to the Panel that would indicate the [sic] Ms Towns was given access to the Investigating Officers final report … Neither is there information on the papers about documents apparently provided to the investigator being returned to Ms Towns. Accordingly, the Panel cannot make a finding in relation to Ms Towns’ assertion. |
Initially I was told three different things in regard to what I had done … and in the final outcome have been informed it was my failure to complete accurate records and is what I am being disciplinary action for | 16. Management within OCYFS would have assessed the potential breach of disclosure of protected information under children and Young Peoples Act 2008 Chapter 25.2 section 846 1(a). They chose not to pursue this pathway and could have added this breach with a breach of the Public Sector Management Act 1994 … 19. Given what the panel considers were flaws in the investigation it is likely that Ms Towns is correct and the allegations have not been clearly presented to her or remained consistent throughout the investigation. This may have acted in Ms Towns favour i.e. breach of the Children and Young Peoples Act 2008 rather than her assertion that she wasn’t solely presented with concise information This, and the time taken for the investigation to be complete, does lead to questions relating to procedural fairness. The panel understands, however, that it is not able to make comment on the allegations not mentioned in the complaint, however feels strongly that it should highlight that there were flaws in the process. |
There were other parties involved in the situation and to my knowledge nobody else has been admonished for not keeping records or in fact for the era that occurred in the first place… | 20. Both of these assertions/observations are outside the Terms of Reference for this review. Accordingly no comment is provided |
Additionally, in regard to natural justice there are countless examples of where notes are not put onto the system within Child and Youth Protection Services … I have recent examples where the continues to happen now and evidence from peers and colleagues who provided this at the Right of Reply stage, but I do not believe these were taken into account by the Delegate | 21. … While there is some anecdotal evidence in the papers to support such a contention … the preliminary findings advice and the Notice of Disciplinary Action make the ACT Government’s record keeping requirements clear. On that basis Ms Town’s [sic] assertion cannot be supported. 22. That said, the panel feels that this point is relevant when determining disciplinary action and penalties … the panel feels that the disciplinary action should have entailed a warning and a performance management plan (including supervision to ensure future compliance with the requirements of her position. If Ms Towns was able to comply with the performance management plan the formal warning would expire and no further sanctions would apply. It is this that leads the panel to its finding against point eight below. |
Penalty inappropriate for finding | 23. Ms Towns appeals the severity of the sanction imposed, give [sic] her Public Service record. While it is clear from the evidence that Ms Town’s [sic] was in breach of the relevant sections of the Legislation, Policy and administrative arrangements in relation to record keeping in public administration, the Panel feels that, if this was the sole matter at hand than [sic] a different disciplinary action would have been taken. This action may have included a formal warning but would have included a performance management plan and supervision to rectify the performance of Ms Towns. This performance management plan would hold for a period of twelve months and would focus on lifting performance to meet the required standards and practices. This may, or may not, have also included a financial penalty. |
[13] On 22 December 2017 Mr Ian Hubbard, the delegate of the head of service, wrote to Ms Towns in the following terms:
“Appeal Panel Report Recommendations – Delegates Decision
I am writing to you as the delegate of the Head of Service in relation to the Appeal you lodged with the Convener of Appeal Panels on 20 July 2017.
I have considered the recommendations contained within the report prepared by the Chairperson of the Appeal Panel …
The Appeal Panel made three recommendations:
1. …
I accept, in part, the recommendations of the panel. Therefore the finding of misconduct remains extent in accordance with Ms Mitcherson’s letter to you dated 17 July 2017. I intend to issue you with an admonishment and warning which will be placed on your personal file. I do not see any benefit placing you on a performance management plan and do not agree to link the warning and admonishment to such. No financial penalty will be imposed.
Admonishment and warning
Ms Mitcherson’s warning to you in her letter dated 17 July remains extent.
Given your level of experience, management position and your involvement in this very complex and sensitive matter I consider that it was your responsibility to ensure that appropriate records were made within electronic and paper records as per the requirements of the Territory Records Acts [sic] 2002.
You are hereby warned that should you be found to have engaged in similar acts of misconduct this warning will be taken into consideration when determining an appropriate sanction. Furthermore, you are to consider this a serious and final warning for any further acts of misconduct this nature.
In your Appeal you raised issues regarding procedural fairness and these were addressed in detail by the Appeal Panel. The report supports the original decision maker, in that you were afforded procedural fairness in the preliminary assessment process, in the conduct of the investigation and in the decision making process.
The Appeal Panel’s third recommendation is for the investigation process to be reviewed as they believe that there were failings in the process. This is a matter I will leave for the Director People Management Branch … to discuss with the Professional Standards Unit …” 7
[14] It is the decision of Mr Hubbard which Mrs Towns seeks to have the Commission review in accordance with the Agreement.
The Applicant’s case
[15] In summary Mrs Towns submitted that:
• her actions did not constitute a breach of the TR Act, adding that she did in fact take records of her relevant conversations by recording them in her notebook which is considered a “Territory record” under the Act;
• if she did breach the TR Act and in doing so also breached the PSM Act and the Agreement the following principles applied to the imposition of disciplinary sanctions
• the purpose of disciplinary sanctions in the context of employment must be entirely protective and not punitive 8, and
• the protective purpose of disciplinary sanctions in the context of public service employment goes to maintaining public confidence in the public service and ensuring that public servants carry out their duties properly and efficiently 9;
• the sanction imposed was ultra vires or otherwise disproportionate and inconsistent with the protective purposes of disciplinary sanctions in the public service as
• the Respondent has no power to issue a “final” warning under the Agreement,
• the investigation of her conduct took an unreasonable amount of time to conclude,
• she has and continues to have an exemplary record of performance and conduct, and
• her colleagues and peers have not had misconduct proceedings commenced against them for engaging in conduct similar to her misconduct yet with more serious consequences;
• if the sanction imposed was upheld it would present a serious risk to the continuation of her employment because any future failure to keep appropriate records could constitute grounds for her dismissal;
• if the Commission upholds the Respondent’s decision on breach it should substitute the sanction with one of an informal written warning and admonishment; and
• in the alternative, if the Commission considers that a formal warning is appropriate, the warning should only stay on her record for 12 months as recommended in the Appeal Panel Report with that period commencing from the date the investigation should have reasonably concluded.
[16] In her submissions in reply, Mrs Towns responded to a number of aspects of the Respondent’s submissions and in doing so reiterated elements of her submissions. Among other things, Mrs Towns submitted that if the Commission could not impose an informal warning as she contended or an expiry date on the warning as recommended by the Appeal Panel, then the most appropriate course would be for the Commission to impose no sanction as an indefinite warning would be too harsh in the light of the circumstances of this matter.
The Respondent’s case
[17] With regard to the Commission’s jurisdiction in this matter, the Respondent contended that:
• through clause J6 of the Agreement the parties had agreed to vest the Commission with the power to review the head of service’s decision under clause J4.12;
• the Commission’s arbitration powers in this case were limited by ss.595(3) and 739(4) of the Act and the powers conferred by the Agreement;
• s.739(5) of the Act provides that the Commission cannot make a decision that is inconsistent with the Act or the Agreement;
• the Commission is able to review the decision of the head of service and make a decision on any recommendation in the Appeal Panel’s report, including the ability to reject a recommendation and make an alternate decision as to whether misconduct occurred or alternate sanctions should be imposed;
• the Commission can only impose alternate sanctions prescribed by clause H10.1 of the Agreement as those are the only disciplinary sanctions for misconduct available to the head of service under the Agreement;
• the Commission should approach the review of the head of service’s decision under clause J4.12 as if it were in the shoes of the head of service;
• as set out in Ms Pamela Boxsell v ACT Government t/a ACT Government – Health Directorate 10 (Boxsell) the Commission’s power to review the head of service’s decision “is not a review of the Appeal Panel’s findings/recommendation(s) but rather a review of the decision maker’s decision in respect of the Appeal Panel’s recommendation(s)”; and
• prior to making an arbitrated decision that is different to the original decision the Commission must be satisfied that the original decision was unjust or unreasonable.
[18] As to the merits of Ms Towns’ application, the Respondent submitted that Mrs Towns had provided insufficient evidence to establish that the decision to impose a sanction was unjust or unreasonable in the circumstances as to necessitate overturning the decision. The Respondent further submitted that:
• in upholding the finding of misconduct the head of service’s delegate relied on the evidence provided by the Investigation and Appeal Panel reports and did not have the evidence allegedly held by Mrs Towns to prove otherwise;
• the sanction imposed by the head of service’s delegate is commensurate with the misconduct engaged in by Mrs Towns and was considered in the context of all relevant mitigating factors;
• the Appeal Panel report indicates that the Appeal Panel considered and accordingly reduced the recommended sanctions in response to the issues raised by Mrs Towns in relation to the delays in the investigation process, her record of employment and the allegations of similar misconduct engaged in by Mrs Towns’ colleagues; and
• in the light of the recommendations of the Appeal Panel and the evidence relied upon in making those recommendations it was open to the head of service’s delegate to make the findings that he did.
[19] The Respondent in its submissions also responded to aspects of Mrs Towns’ submissions, submitting among other things that:
• there was no evidence to suggest that the head of service’s delegate had any evidence before him when he made his decision on 22 December 2017 to suggest that appropriate records had been kept by Mrs Towns, adding that it was of the view that Mrs Towns’ discovery of a record in May 2017 did not constitute keeping accessible information in Territory records as per the relevant policy and the TR Act;
• the sanction imposed in this case is within the power of the head of service and was specifically aimed at addressing Mrs Towns’ performance of her duties as a public servant and ensuring that she upheld the appropriate standards for administration of her duties;
• a written warning and admonishment is the lowest available sanction under clause H10.1(a) of the Agreement;
• as an experienced senior officer with management responsibilities, Mrs Towns was required to model appropriate behaviour and compliance with relevant policy and laws;
• it accepted that it had no power to issue a “final” warning under the Agreement, noting that the letter from the head of service’s delegate stated that “you are to consider this a serious and final warning”;
• there were no automatic consequences that flowed from the warning;
• it accepted that the investigation took a significant amount of time, adding that this could be attributed to a number of factors including the time taken by Mrs Towns to seek legal advice and her refusal to participate in the preliminary assessment;
• the extended period of time taken to determine the matter had been taken into account by the Appeal Panel;
• it accepted that Mrs Towns has a sound record of employment, adding that this had also been taken into account by the Appeal Panel;
• the Commission does not have the power to consider any new evidence that was not before the head of service’s delegate in making his decision;
• the Commission does not have the power to impose a sanction outside those set out in clause H10.1 of the Agreement, i.e. the Commission does not have the power to impose an informal warning;
• under the Agreement it is not open to either the head of service or the Commission to put an expiry date on a warning; and
• the Commission should not disturb the decision of the head of service’s delegate as the sanction imposed was not unjust or unreasonable in the circumstances.
[20] In support of its submissions, the Respondent relied on the decisions in Boxsell, Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales 11 (XPT Case) and Lend Lease Project Management and Construction (Australia) Pty Limited v Construction, Forestry, Mining and Energy Union 12(Lend Lease).
The Relevant Clauses of the Agreement
[21] The relevant provisions of the Agreement are set out below.
G2 DISPUTE AVOIDANCE/SETTLEMENT PROCEDURES
G2.1 The objective of these procedures is the prevention and resolution of disputes about:
a) matters arising in the workplace, including disputes about the interpretation or implementation of the Agreement; and
b) the application of the National Employment Standards.
…
G2.9 The FWC may deal with the dispute in two stages:
a) the FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
b) if the FWC is unable to resolve the dispute at this first stage, the FWC may then:
i. arbitrate the dispute; and
ii. make a determination that is binding on the parties.
G2.10 The FWC may exercise any powers it has under the FW Act as are necessary for the just resolution or determination of the dispute.
…
What is Misconduct
H6.5 For the purposes of this Section, misconduct includes any of the following:
a) the employee fails to meet the obligations set out in section 9 of the PSM Act 1994 (this includes bullying and harassment or discrimination);
b) …
H10 DISCIPLINARY ACTION AND SANCTIONS
H10.1 In circumstances where the head of service, following an investigation or full admission by the employee, determines that misconduct has occurred, and the head of service considers disciplinary action is appropriate, one or more of the following sanctions may be taken in relation to the employee:
a) a written warning and admonishment;
b) a financial penalty which can:
i. reduce the employee’s incremental level,
ii. defer the employee’s incremental advancement,
iii. impose a fine on the employee,
iv. fully or partially reimburse the employer for damage wilfully incurred to property or equipment;
c) transfer the employee temporarily or permanently to another position at level or to a lower classification level;
d) remove any monetary benefit derived through an existing Attraction and Retention Incentive (or existing SEA);
e) termination of employment.
…
H10.3 Sanctions imposed under these procedures must be proportionate to the degree of misconduct concerned. In determining the appropriate sanction, the following factors must be considered:
a) the nature and seriousness of the misconduct;
b) the degree of relevance to the employee’s duties or to the reputation of the Directorate or the ACTPS;
c) the circumstances of the misconduct;
d) any mitigating factors, including any full admission of guilt; and
e) the previous employment history and the general conduct of the employee.
…
H12 RIGHT OF APPEAL
H12.1 An employee has the right under Section J to appeal against any decision to take disciplinary action or to apply a sanction under subclause H10.1, or against any decision taken under clause H8 to suspend the employee without pay, or to transfer the employee at reduced pay, except action to terminate the employee’s employment.
H12.2 An employee may have an entitlement to bring an action under the FW Act in respect of any decision under this Section to terminate the employee’s employment. This will be the sole right of review of such a decision.
H12.3 The appeal procedures under Section H apply to the exclusion of the rights of appeal and review under the PSM Act 1994 and the internal review procedures contained in Section I of this Agreement.
Section J - Appeal Mechanism
J1 OBJECTIVE AND APPLICATION
J1.1 This Section sets out an appeal mechanism for an employee where the employee (referred to in this section as “the appellant”) is not satisfied with the outcome of decisions described in the following clause.
J1.2 This appeal mechanism will apply to:
a) …
d) decisions to take disciplinary action under subclause H10.1 of this Agreement, except a decision to terminate the employee’s employment;
e) …
J2 INITIATING AN APPEAL
J2.1 An employee, or the employee’s union or other employee representative on the employee’s behalf, may initiate an appeal under these procedures by making an application to the Convenor of Appeal Panels that:
a) is in writing; and
b) describes the decision or action taken or to be taken, the reasons for the application and the outcome sought; and
c) is received by the Convenor of Appeal Panels within fourteen calendar days of being notified of the decision to take the action.
J2.2 For the purposes of paragraph J2.1(b), a decision must be an appealable decision as set out in subclause J1.2.
…
J4.7 The Appeal Panel must be provided with all relevant information and evidence that was available to the decision-maker in the making of the original decision or in taking the original action. To ensure efficiency and timeliness, the Appeal Panel should not undertake to collect the same information or new evidence.
…
J4.12 The head of service, after considering the report from an Appeal Panel under subclause J4.10, will make a decision on any recommendation in the report and inform the appellant in writing of the reasons for that decision, within fourteen calendar days of receiving the report.
…
J4.15 The head of service, after considering the report from the Commissioner for Public Administration, may:
a) accept any or all of the report’s recommendation(s) and take such action as necessary to implement the recommendation(s); or
b) not accept the report’s recommendation(s) and confirm the original action.
…
J6 RIGHT OF EXTERNAL REVIEW
J6.1 The employee, or the employee’s union or other employee representative on the employee’s behalf, may seek a review by the FWC of a decision of the head of service under subclause J4.12 or subclause J4.15.
J6.2 The FWC will be empowered to resolve the matter in accordance with the powers and functions set out in clause G2 of this Agreement. The decision of the FWC will be binding, subject to any rights of appeal against the decision to a Full Bench in accordance with clause G2.15.” (Underlining added)
Consideration of the issues
[22] The Commission is empowered by clause J6.2 of the Agreement to resolve the matters involved in Mrs Towns’ application in accordance with the powers and functions set out in the Dispute Avoidance/Settlement Procedures at clause G2 of the Agreement. Clause G2.9 provides that the Commission may deal with a dispute in two stages, the first including by mediation/conciliation and if unsuccessful then by arbitration, while clause G2.10 provides that the Commission may exercise any powers it has under the Act as are necessary for the just resolution or determination of the dispute. As previously noted, conciliation failed to resolve the matter.
[23] More specifically, clause J6.2 of the Agreement empowers the Commission to review a decision of the head of service under clause J4.12 of the Agreement. Clause J4.12 refers to the head of service’s decision in respect of any recommendation in a report from an Appeal Panel under clause J4.10 of the Agreement. Accordingly, as stated in Boxsell, a review under clause J6.2 of the Agreement is not a review of the Appeal Panel’s findings/recommendation(s) but rather a review of the decision maker’s decision in respect of the Appeal Panel’s recommendation(s). In other words, a review under clause J6.2 of the Agreement is not a review de novo.
[24] In short, Mrs Towns disputed that her actions constituted a breach of the TR Act and challenged both the validity and the severity of the sanction imposed on her. With regard to the first of those contentions, as can be seen from the extracts of the Appeal Panel’s report set out at paragraph [12] above, the Appeal Panel concluded that “it is clear from the evidence that Ms Town’s [sic] was in breach of the relevant sections of the Legislation, Policy and administrative arrangements in relation to record keeping in public administration.” 13 As to the severity of the sanction imposed, the Appeal Panel concluded that “there is scope for the financial component to be removed whilst leaving the warning in place provided that there is a performance management plan in place. This warning would expire on successful completion of the performance management plan. The panel feels that continuing to impose the financial penalty, without any process to improve performance and given the delays in this process, this has the potential to undermine the natural justice process.”14 Mrs Towns in her appeal did not challenge the validity of the sanction imposed on her.
[25] An examination of Appeal Panel Report indicates that the Appeal Panel dealt with each of the issues raised by Mrs Towns in her appeal and had regard to her submissions in respect of those issues. More broadly, having regard to all of the material before the Commission and the terms of the Agreement, I consider the Appeal Panel’s conclusions and recommendations to be reasonable. Further, I note that many of the issues canvassed by Mrs Towns in her submissions in support of her application were considered by the Appeal Panel, e.g. the length of time the investigation took and her employment record, and influenced the Panel’s recommendations.
[26] As previously noted, the head of service’s delegate subsequently decided to accept each of the Appeal Panel’s recommendations other than the initiation of a performance management plan for Mrs Towns. In my view, given the Appeal Panel’s Report and recommendations it was entirely open to and appropriate for the head of service’s delegate in this case to confirm the decision to impose a sanction on Mrs Towns. I also agree with the delegate’s decision not to accept the Appeal Panel’s recommendation regarding the initiation of a performance improvement plan as in the circumstances I consider that such a process would have been of minimal, if any, utility. I note that Mrs Towns does not challenge this aspect of the delegate’s decision. More particularly, having regard to the material before the Commission, there was in my view no basis for the delegate to depart from the Appeal Panel’s recommendations other than as he did. In forming that view I have had regard to Mrs Towns’ seniority and her extensive public sector experience.
[27] While I note that attached to Mrs Towns’ reply submissions was a copy of her “File note” 15 of the conversation which initiated the misconduct investigation relating to her, there is no evidence before the Commission that those notes have been formalised such that they are readily available to other staff of the Respondent who may be dealing with the specific file/matter. The value of the alleged file note is therefore significantly diminished.
[28] The Respondent relied upon the decision in the XPT Case in support of its submissions that the head of service delegate’s decision in this matter should not be disturbed. The Full Bench in Lend Lease referred to the XPT Case in the following way:
“[26] The principle stated in the XPT Case was as follows:
“It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable.”
[27] It may be accepted that the above principle is one which should be taken into account and given significant weight in the exercise of an arbitral discretion concerning whether the Commission should intervene in relation to a lawful business management decision by an employer.” 16 (Underling added, endnotes not included)
[29] As previously mentioned, Mrs Towns submitted inter alia that the Respondent has no power to issue a “final” warning under the Agreement. The Respondent in its submissions accepted that it had no power to issue a “final” warning under the Agreement. In those circumstances I think it appropriate that the warning confirmed in the 22 July 2017 decision of the delegate of the head of service (see paragraph [13] above) should be varied to delete the final sentence, i.e. to delete the words “Furthermore, you are to consider this a serious and final warning for any further acts of misconduct this nature.” In my view, given the Respondent’s acknowledgement that there is no power under the Agreement to issue a final warning it would, drawing on the language in the XPT Case,be unreasonable for that aspect of the warning to stand.
[30] For the same reason relied upon by Mrs Towns in respect of the validity of the “final” nature of the warning issued to her, I am of the view that the Commission does not have the power under the Agreement, even if it was disposed to doing so, to substitute the warning issued to Mrs Towns with an informal written warning and admonishment or to put an expiry date on that warning.
[31] Beyond that, and again drawing on the language in the XPT Case, the above analysis does not point to anything unjust of unreasonable in the decision of the delegate of the head of service under clause J4.12 of the Agreement. While I appreciate that Mrs Towns is aggrieved by the head of service’s decision to confirm the warning issued to her I do not consider that there is any basis for the Commission to disturb the head of service’s decision beyond the variation outlined above.
Conclusion
[32] For all the above reasons, I have decided to vary the warning issued to Mrs Towns to delete the final sentence of the warning and that the head of service’s decision should not otherwise be disturbed.
Printed by authority of the Commonwealth Government Printer
<PR609142>
1 AE408295
2 Outline of Respondent’s Submissions at paragraph 2
3 Ibid at Attachment a
4 Ibid at Attachment e
5 Ibid at Attachment f
6 Ibid
7 The letter was emailed to the Commission by Mrs Towns on 1 March 2018
8 NSW Bar Association v Evatt [1968] HCA 20 at [12]
9 Police Service Board v Morris [1985] HCA 9
10 [2018] FWC 141
11 (1984) 295 CAR 188
12 [2015] FWCFB 1889
13 Attachment f to the Outline of Respondent’s Submissions at paragraph 23
14 Ibid at paragraph 24
15 Outline of Applicant’s submissions in reply at Attachment A
16 [2015] FWCFB 1889
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