Danny Peraic v Australian Capital Territory T/A Justice and Community Safety Directorate

[2019] FWC 3510

[2019] FWC 3510

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Danny Peraic
v
Australian Capital Territory T/A Justice and Community Safety Directorate
(C2018/4277)

DEPUTY PRESIDENT KOVACIC CANBERRA, 30 MAY 2019

Application for review of decision by delegate of the Head of Service in accordance with the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013-2017 – determined that the decision by the delegate of the Head of Service to accept the recommendations of the majority of the Appeal Panel should not be disturbed.

[1] On 3 August 2018 Mr Danny Peraic (the Applicant) made an application under s.739 of the Fair Work Act 2009 (the Act) in respect of a dispute in accordance with the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013-2017 (the Agreement)  1.

[2] In short, Mr Peraic’s application seeks a review in accordance with clause J6.1 of the Agreement by the Fair Work Commission (the Commission) of a decision by the delegate of the Head of Service, Mr Richard Glenn, to accept the recommendations of the majority of the Appeal Panel that earlier findings of misconduct against Mr Peraic and uphold the sanction imposed on him.

[3] A conference convened by the Commission on 15 August 2018 failed to resolve the dispute. Directions were subsequently issued with the matter set down for hearing on 19 October 2018 on the basis that parties would advise the Commission if the matter could be dealt with on the papers. On 15 October 2018 both parties confirmed that the matter should be dealt with on the papers.

[4] For the reasons outlined below, I have concluded that there is no basis for the Commission to disturb the decision of the delegate of the Head of Service made under clause J4.12 of the Agreement.

Background

[5] Mr Peraic is employed by the Australian Capital Territory T/A Justice and Community Safety Directorate (the Respondent) as an Administrative Services Officer Level 5. Prior to being transferred at level elsewhere within the Respondent’s operations in mid-March 2018, Mr Peraic was a Team Leader in the ACT Sheriff’s Office.

[6] In July 2015 Mr Peraic was notified of the commencement of a formal investigation under clause H9 of the Agreement in respect of various allegations of misconduct made against him. The allegations were subsequently referred to the ACT Public Service Professional Standards Unit (PSU) for investigation. On 2 December 2015, the Applicant was notified of the allegations of misconduct and invited to respond. The allegations were set out in an attachment to Mr Peraic’s application in the following terms (the allegations have been renumbered 1-6 as opposed to a)-f) as in the abovementioned attachment):

“1. On 26 November 2015 the Applicant used an active Jury Room to hold a private discussion with Mr Allan Hough and subsequently made false or misleading statements to Justice Penfold and Robert Fraser as to why he accessed and used an active Jury Room.

2. From 2012 to 2014 the Applicant made inappropriate comments, some being of a sexualised nature, to other male members of the Sherriff’s Office in relation to female students on tours he conducted.

3. From 2012 to 2014 the Applicant made inappropriate comments to members of the Sherriff’s Office in relation to other staff members of the Sherriff’s Office.

4. On 12 June 2015 the Applicant attended a meeting with Ms Cathy Paulsen and Ms Rose Oliver in Court 4 of the ACT Supreme Court during which Ms Oliver behaved inappropriately towards Ms Paulsen and the Applicant, in his capacity as both Ms Paulsen’s and Ms Oliver’s supervisor, failed to intervene or take any necessary corrective or preventative action in response to Ms Oliver’s inappropriate behaviour.

5. On 17 June 2015 the Applicant attended the Spark and Cannon Monitor Room and listened to an audio recording of Court room 4 of the Supreme Court for June 2015. The Applicant allegedly did not have a legitimate reason to access this recording and accessing the Spark and Cannon Monitor Room and audio recordings was not part of the applicant’s duties at the time.

6. On 17 June 2015 while in the Spark and Cannon Monitor Room the Applicant had a discussion with Mr Alex Greenbank. They both agreed not to let anyone know the Applicant was aware that the conversation he had in Court Room 4 with Ms Oliver and Ms Paulsen on 12 June 2015 had been recorded and for Mr Greenback to state that the Applicant was listening to a trial if anyone asked what he was listening to in the Spark and Cannon Monitor Room on 17 June 2015.”

[7] The Investigation Report regarding the allegations was completed on 10 March 2016. In subsequent developments, on 12 September 2016 Mr David Foot ASM, the delegate of the Head of Service (hereafter referred to as the initial delegate), wrote to Mr Peraic advising that the investigation had found that allegations 1, 4, 5 and 6 had been substantiated, allegation 2 had been partially substantiated and allegation 3 had not been substantiated. Mr Foot further advised Mr Peraic that in accordance with clause H10.1(e) of the Agreement he proposed to terminate his employment and invited him to provide any response to the proposed disciplinary action by 5 October 2016.

[8] Mr Peraic responded on 23 February 2017 after the Respondent had in January 2017 provided him with copies of a number of documents referred to in the Investigation Report, with a number of those documents redacted.

[9] On 14 August 2017, Mr Foot wrote to Mr Peraic advising him of his final decision. Mr Foot advised Mr Peraic inter alia that:

•  he had reconsidered allegation 4 and determined that it did not constitute misconduct;

•  he found on the balance of probabilities that there was sufficient evidence to substantiate allegations 1, 5 and 6 and to partially substantiate allegation 2;

•  he no longer considered the termination of his employment to be appropriate having regard to a number of factors, including his 16.5 years of employment with the Sheriff’s Office; and

•  he had determined to permanently transfer him at level to another position with the Respondent.

[10] On 25 August 2017 Mr Periac initiated an appeal in accordance with clause J2 of the Agreement. The reasons cited in Mr Peraic’s application for appeal were that:

•  there was insufficient evidence to meet the standard or proof as per the decision in Briginshaw v Briginshaw; 2 and

•  he had not been afforded procedural fairness and natural justice in accordance with clause H1.4 of the Agreement.

[11] An Appeal Panel was subsequently convened in accordance with the Agreement and on 21 February 2018, the Appeal Panel provided two reports (a majority and minority report) to Mr Glenn.

[12] The majority report recommended that the initial delegate’s:

•  finding in relation to allegation 1(a) be upheld;

•  findings in relation to allegations 2, 3, 4, 5 and 6 be upheld; and

•  sanction be upheld.

[13] Further, the majority report did not recommend that the initial delegate’s finding in respect of allegation 1(b) be sustained for a number of reasons, including uncertainty as to aspects of the evidence concerning this allegation.

[14] The minority report concluded as follows:

“33. …it is my view that to the extent the sanction imposed by the Delegate is based on findings in relation to Allegations 1, 2 and 5 it should not remain in place and that instead, this matter should be referred for further investigation in a manner which provides the Appellant with natural justice and procedural fairness, in accordance with clause J4.8 of the Enterprise Agreement.

34. The present sanction appears to be based on a totality of the Delegate’s conclusions in relation to all of the allegations. To the extent that the sanction is based on a combination of findings in relation to Allegations 1, 2 or 5 it is my view that it is not appropriate and that it should be reconsidered in light of my findings above. In the event that this occurs, I emphasise that it is my view that the Delegate’s consideration of the mitigating circumstances raised by the Appellant was entirely appropriate.”

[15] An analysis of the body of the minority report indicates that key considerations underpinning the above conclusions included that procedural fairness required that Mr Peraic should have been provided with both copies of:

(a) the written complaints made against him; and

(b) unredacted versions or more judiciously redacted versions of the transcripts and statements relied on by the Investigator to ensure that his capacity to respond was not affected.

[16] On 19 March 2018, Mr Glenn wrote to Mr Peraic advising that he agreed with the majority panel recommendations. In respect of the minority report, Mr Glenn’s letter read:

“I have fully considered the dissenting report of Ms Read, the employee nominee. Ms Read states that some of the evidence was received in redacted form and that this did not give the appellant sufficient information to respond to the allegations.

I have reviewed an unredacted version of the investigation report and consider that the redaction did not deny Mr Peraic procedural fairness as the information redacted was not material to the allegations.

I consider the allegations to be clearly written and communicated to Mr Peraic and that Peraic’s request to respond to the allegations in writing was accepted. Specific questions were then put to Mr Peraic, who provided several detailed responses.

Please note that while I have reviewed the unredacted information, as it is not material to the alleged misconduct, I have had no regard to it in my decision as to whether misconduct has occurred.

Therefore I do not agree with Ms Read that the matter be referred for a further investigation but agree with the majority of the panel that the delegate’s findings with regard to allegations 2, 3, 4, 5, 6 be upheld; that allegation 1(a) be upheld and allegation 1(b) not be sustained and that misconduct is found.

I find that Mr Peraic’s actions amount to misconduct and a failure to exercise reasonable care and skill, act with probity and treat another public employee with courtesy and/or sensitivity to their rights, duties and aspirations in contravention of your obligations under what was, at the time, s9(a), s9(c) and s9(d) of the Public Sector Management Act 1994.”

[17] As to sanction, Mr Glenn’s letter stated as follows:

“Ms Read’s report recommends that in light of her findings that misconduct should not be found and that the matter be referred for further investigation that the sanction is not appropriate. The majority of the panel, while expressing that the sanction is lenient recommend that the sanction be upheld.

Noting that I have agreed with the majority panel report that misconduct is found in that the delegates [sic] final decision be upheld. I also find that the final sanction of the delegate be upheld and you be permanently transferred from any role in the ACT Courts to maintain public confidence in the integrity of Court officials is appropriate in the circumstances.”

[18] As previously mentioned, on 3 August 2018 Mr Peraic lodged his application under s.739 of the Act. In his application, Mr Peraic set out the relief which he was seeking in the following terms:

“The Applicant seeks, whether through conciliation or arbitration, to have the decision of Mr Glenn set aside and a determination that:

a) the Directorate take all steps necessary to implement the recommendations of the dissenting report of the Appeal Panel; or

b) that the misconduct findings against the Applicant be quashed on the basis that the time elapsed since the alleged misconduct occurred is such that effective implementation of the recommendations in the dissenting report are no longer practically feasible.” 3

The Applicant’s case

[19] Mr Peraic submitted that there was sufficient reason for the Commission to be satisfied that Mr Glenn had not properly turned his mind to all of the issues raised by the minority report and whether his submissions had been properly considered by the Appeal Panel as a whole. More particularly, Mr Peraic contended among other things that:

•  consideration of the Appeal Panel report was an important part of the Commission’s review function for two important jurisdictional reasons, i.e. given the terms of clause J4.12, the Commission firstly needed to satisfy itself that Mr Glenn had considered the Appeal Panel report so as to enliven his decision-making power and secondly it needed to consider the Appeal Panel’s recommendations in order to assess whether Mr Glenn had made his decision within the confines of his jurisdiction;

•  at the very least it was necessary for Mr Glenn to turn his mind to the fact that he (Mr Peraic) did not have access to copies of the original complaints made against him and that it was not apparent from Mr Glenn’s reasons that he had done so;

•  Mr Glenn did not address his (Mr Peraic’s) contention that the delay in bringing allegation 2 had resulted in irreparable prejudice;

•  it should have been apparent to Mr Glenn that the issue raised in the minority report regarding allegation 5 necessarily impacted allegation 6 yet Mr Glenn did not mention the issues in the minority report in respect of either allegation 5 or 6 at all in his reasons, adding that this point was important because it was not an issue of procedural fairness and therefore could not be regarded as having been wrapped up in Mr Glenn’s general response to the minority report’s concern about lack of procedural fairness; and

•  in the light of the Investigator’s failure to interview all the witnesses he had suggested, or to interview certain witnesses with the benefit of knowing the issues to put to them to test his version of events, it was impossible to say that the Appeal Panel had either dealt with this ground properly or reached a reasonable conclusion in respect of it, adding that this ought to have been apparent to Mr Glenn on the face of the material before him and in particular the Investigation Report and his submissions.

[20] Mr Peraic further submitted that the Commission should resolve the dispute by ordering either that:

a) the Respondent take all steps necessary to implement the recommendations of the minority report; or

b) the Respondent reconvene the Appeal Panel or convene a new one and direct it to properly consider his submissions or parts thereof; or

c) in the light of the time elapsed since the alleged misconduct and the fact that he does not seek to be returned his role in the ACT Supreme Court, that the Respondent quash the misconduct findings on the basis that effective implementation of the recommendations in the minority report and/or proper consideration of his submissions was no longer practically feasible.

[21] In his submissions in reply Mr Peraic posited inter alia that the Respondent largely failed to engage with the specific arguments he had put forward as to why Mr Glenn’s decision was unjust or unreasonable.

The Respondent’s case

[22] The Respondent submitted that the decision of the majority of the Appeal Panel was made in accordance with clause J4.6 of the Agreement in that the majority rightly found that:

a) it was open to the delegate to take the action that he took;

b) the principles of procedural fairness and natural justice were complied with in taking the original action; and

c) the final decision of the delegate (a transfer at level under clause H10.1c) of the Agreement) was appropriate in all the circumstances.

[23] The Respondent further submitted that:

•  Mr Glenn was entitled to make the decision he made under clause J4.12 of the Agreement agreeing with the recommendations of the majority of the Appeal Panel;

•  it was entirely appropriate for Mr Glenn to accept the reasoning of the majority in relation to the procedural fairness accorded to Mr Peraic overall; and

•  the Commission should not disturb Mr Glenn’s decision on this or any other basis.

[24] Beyond this, the Respondent in its submissions also:

•  addressed the powers conferred on the Commission by the Agreement, citing the decisions in Ms Pamela Boxsell v ACT Government T/A ACT Government – Health Directorate (Boxsell) 4 and Christina Towns v Community Services Directorate ACT Government (Towns)5 and noting the reference in Towns to the decisions in Lend Lease Project Management and Construction (Australia) Pty Limited v Construction, Forestry, Mining and Energy Union (Lend Lease)6 and Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales (XPT Case)7; and

•  explored each of the allegations which were upheld in the majority report and in doing so rejected Mr Peraic’s submissions in that regard.

The Relevant Clauses of the Agreement

[25] 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.

…

G2.4 An employee who is a party to the dispute may appoint a representative, which may be a relevant union, for the purposes of the procedures of this clause.

…

G2.6 Where appropriate, the relevant employee or the employee’s representative will discuss the matter with the employee’s supervisor. Should the dispute not be resolved, it will proceed to the appropriate management level for resolution.

G2.7 In instances where the dispute remains unresolved, the next appropriate level of management, the employee, the union or other employee representative will be notified and a meeting will be arranged at which a course of action for resolution of the dispute will be discussed.

G2.8 If the dispute remains unresolved after this procedure, a party to the dispute may refer the matter to the FWC.

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.

….

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.

H10.2 In relation to paragraph H10.1(c), if an employee’s classification is reduced as a result of disciplinary action, service before the demotion is not counted towards an increment for any higher duties the employee performs after demotion.

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.

H10.4 Before taking disciplinary action, the head of service will advise the employee in writing of:

a) the decision that misconduct has been found to have occurred; and

b) the reasons for arriving at this decision; and

c) the sanction proposed; and

d) the period during which the employee has to respond to the proposed disciplinary action (which must be a minimum of fourteen calendar days).

H10.5 After considering the employee’s response to the proposed action, or if the employee has not responded at any time after the period outlined in paragraph H10.4 (d) has lapsed, the head of service may take disciplinary action. The head of service will inform the employee in writing of:

a) the final decision regarding disciplinary action to be taken; and

b) the date of effect and/or, if relevant, the cessation of the action; and

c) the appeal mechanisms that are available under this Agreement.

…

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;

…

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.

J3 COMPOSITION OF THE APPEAL PANEL

…

J3.2 Where an application is received by the Convenor of the Appeal Panel in accordance with the requirements set out in subclause J2.1 and J2.2 the Convenor of Appeal Panels will set up an Appeal Panel.

…

J4 POWERS AND ROLE OF THE APPEAL PANEL

J4.1 In considering an application, the Appeal Panel must have due regard to the principles of natural justice and procedural fairness. Proceedings of the Appeal Panel are to be conducted as quickly as practicable consistent with a fair and proper consideration of the issues.

…

J4.3 The Appeal Panel will have the discretion to decide not to conduct a review of the appeal application, or, if it has commenced reviewing the application, to decide not to proceed further if, in the opinion of the Panel:

a) the application is frivolous or vexatious, or not made in good faith; or

b) the employee making the appeal may apply to another person or authority about the application who may more appropriately deal with the action; or

c) further review of the application is not warranted.

…

J4.6 Where the Appeal Panel determines that an application for appeal requires further consideration, the Appeal Panel will conduct a procedural review on the papers to determine whether:

a) it was open to the head of service to take the action that he or she did;

b) the principles of procedural fairness and natural justice were complied with in taking the original action or decision; and

c) the final decision of the head of service was appropriate in all of the circumstances.

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.

J4.8 Where the Appeal Panel is satisfied that a fundamental piece of evidence was not considered in the original process, the Appeal Panel may recommend to the head of service that the matter be referred back to the original decision-maker for further investigation.

…

J4.10 After reviewing any application under this section, other than an appeal about promotion or temporary transfer to a higher office or role, the Appeal Panel will, subject to subclause J4.8, make a written report containing recommendations to the head of service. A copy of the report will be provided to the appellant.

…

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.”

Consideration of the issues

[26] As the Commission stated in Towns 8:

“[23] …clause J6.2 of the Agreement empowers the Commission 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.” 9

[27] Mr Peraic’s submissions to the Appeal Panel dealt with his two grounds of appeal, i.e. that he was not afforded procedural fairness and natural justice and that there was insufficient evidence to meet the standard of proof. In respect of the first of those grounds, Mr Peraic identified eight reasons as to why he had not been afforded procedural fairness and natural justice. As to the second ground, Mr Peraic in his submissions dealt with allegations 1, 2, 5 and 6 and set out his reasons as to why he considered there was insufficient evidence to meet the standard of proof. Among other things, Mr Peraic contended that the Investigator had failed to interview key witnesses as directed by him to corroborate his evidence and in respect of allegations 5 and 6 contended that his actions did not indicate that he failed to act with probity.

[28] While as noted in Towns a review under clause J6.2 of the Agreement is not a review of the Appeal Panel’s findings/recommendation(s) I note that at paragraphs 6.2.-6.5. of the majority report the majority considered the eight reasons cited by Mr Peraic as to why he had not been afforded procedural fairness and natural justice but did not accept that he had been denied procedural fairness and natural justice. The majority then considered Mr Peraic’s submissions in respect of allegations 1, 2, 5 and 6 and formed the view inter alia that the second part of allegation 1 was not sustainable but that otherwise the allegations were proven. As to sanction, while upholding the initial delegate’s decision it stated that it considered the decision “a lenient sanction given the findings made, particularly in relation to allegations 1 and 6 covering the appellant’s honesty.” While it is arguable that the majority’s reasoning in respect of the procedural fairness and natural justice ground could have been more detailed, an objective analysis of the majority report indicates that it gave due consideration to Mr Peraic’s submissions.

[29] I turn now to deal with each of the previously outlined aspects of Mr Peraic’s submissions to the Commission.

It was necessary for Mr Glenn to turn his mind to the fact that Mr Peraic did not have access to copies of the original complaints made against him

[30] Mr Glenn’s decision when dealing with the minority report states inter alia that he considered “the allegations to be clearly written and communicated to Mr Peraic and that Peraic’s request to respond to the allegations in writing was accepted.” While Mr Glenn’s remarks are not explicitly referenced to the view expressed in the minority report that procedural fairness required that the original complaints should have been provided to Mr Peraic, 10 I note that they are consistent with the views expressed in the majority report that Mr Peraic did not need to see the original complaints to understand and respond to the six allegations.11 This in my views suggests that Mr Glenn did have regard to this issue in the context of considering the concerns expressed in the minority report that Mr Peraic had not been afforded procedural fairness.

Mr Glenn did not address Mr Peraic’s contention that the delay in bringing allegation 2 had resulted in irreparable prejudice

[31] The majority report included the following:

“6.21 …[t]he panel considers that the submission that the passage of time since the alleged behaviour occurred in when it is subject to review, creates a risk with the evidence’s reliability, has some weight in relation to this allegation, given the general nature of the allegation. In this respect in covering repeated conduct between 2012-2014 it differs from allegations 1, 5 and 6, which referred a very specific and arguably, memorable conduct/events.

6.22 Notwithstanding this, Messrs Hough, Buik and Nicholas recall with clarity Mr Peraic’s comments in relation to females in the school groups…” 12

[32] In circumstances where the majority report clearly considered the issue of the delay in bringing allegation 2 and Mr Glenn’s decision states that he had carefully considered a number of documents, including the Appeal Panel reports, it was not in my view necessary for Mr Glenn to explicitly address this issue in his decision.

It should have been apparent to Mr Glenn that the issue raised in the minority report regarding allegation 5 necessarily impacted allegation 6 yet Mr Glenn did not mention the issues in the minority report in respect of either allegation 5 or 6 at all in his reasons and that this point was important because it was not an issue of procedural fairness

[33] This submission is not sustainable in my view in circumstances where the minority report:

•  stated that to the extent that Mr Peraic “has admitted to taking the actions which form the basis of Allegations 5 and 6 it is difficult to give credence to his submission that there is evidence to meet the standard of proof in relation to those allegations,” 13 and

•  in respect of allegation 6, adopted the conclusions of the majority and observed that the investigation of the allegation was “not troubled by issues in relation to procedural fairness.” 14

[34] Having regard to the abovementioned aspects of the minority report, there was no need in my view for Mr Glenn to deal specifically with the issues relating to allegations 5 and 6 in his decision.

Mr Glenn should have considered whether the Appeal Panel considered or reached a reasonable conclusion in respect of the Investigator’s failure to among other things interview all the witnesses Mr Peraic had suggested

[35] The majority report included the following:

“6.24 The appellant’s lawyers also assert that the investigator failed to interview other witness of Mr Peraic considered were key to the allegation [allegation 2]. In Mr Peraic’s first response he asks the investigator to speak with ten employees within the ACT Supreme Court, including the Registrar. Two panel members consider the investigator acted appropriately in limiting the witnesses to the three other sheriffs and attempting to interview Mr Evans, as it was the evidence that these four men were the only employees present when Mr Peraic allegedly made such comments.” 15

[36] Mr Peraic’s contention is not sustainable in my view when regard is had to the above extract from the majority report.

[37] As previously mentioned, the Respondent in its submissions also noted the reference in Towns to the decisions in Lend Lease and the XPT Case. Those decisions consider the circumstances in which the Commission might interfere with an employer’s right to manage their business. More specifically, I note that the Full Bench in Lend Lease referred to the decisionthe 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)

[38] Drawing on the language in the XPT Case, the above analysis of the circumstances in this case does not point to anything unjust of unreasonable in Mr Glenn’s decision under clause J4.12 of the Agreement. While I appreciate that Mr Peraic is aggrieved by Mr Glenn’s decision, for the reasons outlined above I do not consider that Mr Peraic’s concerns regarding the decision are made out. As such, I do not consider that there is any basis for the Commission to disturb Mr Glenn’s decision.

Printed by authority of the Commonwealth Government Printer

<PR708539>

 1   AE408295

 2 (1938) 60 CLR 336

 3   Form F10 – Application for the Commission to deal with the dispute in accordance with a dispute settlement procedure at Question 3.1

 4 [2018] FWCA 141

 5   [2018] FWC 4271

 6   [2015] FWCFB 1889

 7 (1984) 295 CAR 188

 8   [2018] FWC 4271

 9   Ibid at [23]

 10   Dissenting Report into findings made against Danny Peraic at paragraph 14

 11   Report into findings made against Danny Peraic at paragraph 6.6

 12   Ibid at paragraphs 6.21. and 6.22

 13   Dissenting Report into findings made against Danny Peraic at paragraph 26

 14   Ibid at paragraph 32

 15   Report into findings made against Danny Peraic at paragraph 6.24.

 16   [2015] FWCFB 1889