Country Fire Authority v United Firefighters' Union of Australia

[2012] FWA 3878

[2012] FWA 3878

FAIR WORK AUSTRALIA

FURTHER DECISION

Workplace Relations Act 1996
s.709 - Application to FWA to have a dispute resolution process conducted (Div 5)

Country Fire Authority
v
United Firefighters' Union of Australia
(DR2012/227)

United Firefighters' Union of Australia
v
Country Fire Authority
(DR2012/233)

COMMISSIONER ROE MELBOURNE, 4 MAY 2012

Alleged dispute concerning the performance management of an employee.

[1] Further to the decision of 30 April 2012 (PR523216) I now finalise the matters which were reserved in that decision.

[2] Arising from the 5 April 2012 conference I issued the following Recommendation which was accepted by the parties:

“1. Without prejudice to the position of either party concerning the appropriate processes to be followed in this or other cases, the parties agree that the matter of the natural justice concerns about the process to date concerning DS will be determined by a Recommendation to be issued by Fair Work Australia following a conference/hearing on 27 April 2012. The parties agree to abide by the Recommendation. The parties agree to follow the process set out in the following points in the event that there are no natural justice concerns which are found to justify a modification the process. In the event that there are natural justice concerns which justify a modification to the process then the parties agree to follow the modified process.

2. DS is to attend a meeting with the CFA within 7 days of the date of the recommendation arising from point 1. At this meeting DS is entitled to be accompanied by a representative of her choice, however, DS is to respond directly to the matters raised at that meeting which go to her work performance.

3. The purpose of the meeting is for the CFA to hear and consider DS’s responses as the starting point for a performance management process in the event that the CFA considers this is required after considering the responses of DS.

4. Whilst any performance management process is in train DS remains able to search for alternative positions within the organisation. Any application that DS may make will be considered by the CFA in a non-discriminatory manner.

5. Upon the satisfactory conclusion of a performance management process CFA will provide career management assistance to DS for a maximum period of three months, should DS request this.”

[3] Since the decision of 30 April 2012 I have considered further submissions concerning the issue of an independent person in the process from both the UFU and the CFA. I do not consider that the UFU proposal that they nominate persons until the CFA agrees with one of the nominees to be the appropriate resolution in the circumstances of this case. I have considered the alternative proposal of the UFU that they request Kings Workplace Solutions to provide one of their consultants. I have considered the proposal of the CFA to use CWH Mediation and Workplace Relations Pty Ltd. I consider that both of the organisations have the requisite degree of expertise and independence. On balance the appropriate approach is to utilise Kings Workplace Solutions but for the CFA not the UFU to request Kings Workplace Solutions provide one of their consultants to perform this role.

[4] The parties agreed to the Recommendation of 5 April 2012 in this matter. The first point of that Recommendation required me to determine the issue of natural justice concerns and if I found that there were any concerns the parties agreed that I could modify the process if I considered that was necessary to overcome those concerns. I have decided that the process should be modified consistent with the matters decided in paragraphs 32, 48 and 50 of the 30 April 2012 Decision. Consequently I have decided that the appropriate resolution to the dispute is a modified version of the Recommendation of 5 April 2012 as follows.

• The CFA is to request Kings Workplace Solutions to provide one of their consultants to oversee and participate in the process of the meetings and assessment set out in points 2 and 3 below. That independent person should have access to all relevant material prior to the commencement of the process, including the decision of 30 April 2012. The independent person may provide advice as to appropriate conduct and procedures in implementing points 2 and 3 below. The independent person should provide advice to the CFA and to DS and the UFU at the conclusion of point two below as to whether performance management is appropriate or not and if not whether or not any other action would be appropriate.



• DS is to attend a meeting with the CFA within 7 days of the date of this Decision or if this is impractical the earliest possible subsequent date arrangements can be made by the CFA. At this meeting DS is entitled to be accompanied by a representative of her choice, however, DS is to respond directly to the matters raised at that meeting which go to her work performance. It may be reasonable for DS to request further details during the meeting to discuss the concerns and if so DS should then have reasonable opportunity and time to respond if any further details are provided.



• The purpose of the meeting is for the CFA to hear and consider DS’s responses as the starting point for a performance management process in the event that the CFA considers this is required after considering the responses of DS.



• Whilst any performance management process is in train DS remains able to search for alternative positions within the organisation. Any application that DS may make will be considered by the CFA in a non-discriminatory manner.



• Upon the satisfactory conclusion of a performance management process CFA will provide career management assistance to DS for a maximum period of three months, should DS request this.

COMMISSIONER

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