Desmond Manthos v Dental Health Services Victoria

[2013] FWC 6218

[2013] FWC 6218

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.526—Stand down

Desmond Manthos
v
Dental Health Services Victoria
(C2013/4402)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 6 SEPTEMBER 2013

Application to deal with a dispute involving stand down.

[1] On 17 May 2013 Ms.Desmond Manthos made an application for the Commission to deal with a stand down dispute pursuant to s.526 of the Fair Work Act 2009 (‘the Act’).

[2] Conciliation was unsuccessful, and the matter was set down for arbitration.

[3] Given the agreement as to the facts of the matter, neither side elected to call evidence.

[4] Ms.Manthos was represented by the Health Services Union (HSU), and Dental Health by the Victorian Hospitals’ Industrial Association (VHIA).

Preliminary Issues

[5] Ms.Manthos sought to amend the application to, in addition, seek relief for breach of clause 125 of the Victorian Public Health Sector (Health Professionals, Health and Allied Services, Managers & Administrative Officers) Multiple Enterprise Agreement 2001-2015 (the agreement) by Dental Health. This was opposed by Dental Health. As a matter of discretion I refused the application to amend under s.586 of the Act in all the circumstances. It was a fundamental alteration to the application, which related only to s.524 of the Act. Consideration of claims about breach of clause 125 of the agreement would raise substantially different issues of fact and law: Visscher v. BHP 1, Kennedy v. ATO2, see also Bennett3, Winters4, and Reisenberg5, where applications which constituted a substantial change to the application were refused.

[6] Ms.Manthos also sought to compel the attendance of a person in the Commission and the production of documents. However, no real grounds for the orders sought were advanced beyond a submission that the person and material could conceivably provide relevant evidence 6. This was a submission in the nature of a fishing expedition, an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all: Munro J in Re Clerks Alcoa Award7, quoted with approval by a Full Bench of the Commission in Maritime Union of Australia8. I refuse the application.

Stand Down

[7] The factual matters were not in dispute. The following is agreed. It was agreed that Ms.Manthos was notified of ‘stand down from duty pending investigation’ on ‘full pay’ 17 May 2013 9. At that time she was advised that the stand down was to ‘allow a full and thorough investigation to be undertaken into concerns that you have breached the Code of Conduct for Victorian Public Sector Employees and acted in a manner which constitutes bullying and intimidating behaviour’. She was instructed not to attend the workplace until finalisation of the investigation process. She was advised that an independent external investigator, Mr.Richard Murrie, would conduct the investigation.

[8] On 23 May 2013, Ms.Manthos was advised that this letter was withdrawn and replaced with the following. She was advised that she was not permitted to attend the workplace, and that she was not to undertake any duties. This was to ‘allow a full and thorough investigation to be undertaken into concerns that you have breached the Code of Conduct for Victorian Public Sector Employees and acted in a manner which constitutes bullying and intimidating behaviour’ 10. It is agreed that she remained on full pay at all times.

[9] On 11 June 2013 she was advised of allegations against her, which were said to be ‘serious’ and could result in termination of employment 11.

[10] None of the other correspondence is in dispute, including correspondence that dealt with the disciplinary outcome and other matters 12.

[11] The HSU submitted that Dental Health breached s.524 of the Act in that it stood Ms.Manthos down in a manner not authorised by s.524, and in breach of occupational health and safety legislation and the agreement 13. With respect to allegations about the agreement, I have refused leave to amend the application. With respect to occupational health and safety legislation, there is no jurisdiction under s.526 or any other provision of the Act to deal with the matter. To the extent necessary I refuse leave to amend the application so that it relates to occupational health and safety legislation.

[12] Dental Health submitted that it had not sought to exercise the right to stand down in s.524. It submitted that it had exercised the common law right to direct Ms.Manthos not to perform duties for a limited and reasonable period.

[13] It is axiomatic that an employee has the duty to carry out the reasonable and lawful directions of his or her employer (see R v. Darling Island Stevedoring and Lighterage Co.Ltd. 14, and regulation 1.07 of the Fair Work Regulations 2009). In this case Dental Health claims that such a reasonable and lawful direction was issued, namely not to attend work and not to attend duties, and that no exercise of stand down powers was made under s.524.

[14] This case, it is agreed, does not involve any of the grounds for stand down set out in s.524(1). It does not involve industrial action, break down of machinery, or stoppage of work for which the employer is not responsible. These are the grounds which enable an employer to exercise the power to stand down an employee, and to withhold pay from that employee.

[15] There has been no withholding of pay. Withholding of pay is the traditional purpose of stand down provisions. There is no suggestion of a ‘stand down’ in the traditional sense of the term (see for example Full Bench decisions in Food Preservers 15, Clerks (Breweries)16, AWU Construction and Maintenance17). Full pay has been given.

[16] The employer withdrew a letter which used the terminology ‘stand down’ and instead used different terminology.

[17] In my view on the evidence and submissions before me the employer has not sought to exercise any powers under s.524. It has not withheld pay. It is obvious that it has no powers under s.524 to exercise in the present circumstance, because none of the circumstances enabling it to exercise the right to stand down are present. Ms.Manthos is not a person described in s.526 who may bring an application under that section. She is not a person who has been stood down within that section, and does not fall into the other categories of persons who may make an application. An order dismissing the application brought by Ms.Manthos is contained in PR540957.

DEPUTY PRESIDENT

Appearances:

Mr N Murphy from the Health Services Union for the applicant

Mr S McCullough from Victorian Hospitals’ Industrial Association for the respondent and Mr D Jacka from the respondent

Hearing details:

2013

Melbourne

28 August

15 July

Attachment 1:

Section 524 provides

524 Employer may stand down employees in certain circumstances

(1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:

(a) industrial action (other than industrial action organised or engaged in by the employer);

(b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;

(c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

(2) However, an employer may not stand down an employee under subsection (1) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if:

(a) an enterprise agreement, or a contract of employment, applies to the employer and the employee; and

(b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance.

Note 1: If an employer may not stand down an employee under subsection (1), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment.

Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).

(3) If an employer stands down an employee during a period under subsection (1), the employer is not required to make payments to the employee for that period.

Section 526 provides:

526 FWC may deal with a dispute about the operation of this Part

(1) The FWC may deal with a dispute about the operation of this Part.

(2) The FWC may deal with the dispute by arbitration.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may deal with the dispute only on application by any of the following:

(a) an employee who has been, or is going to be, stood down under subsection 524(1) (or purportedly under subsection 524(1));

(b) an employee in relation to whom the following requirements are satisfied:

(i) the employee has made a request to take leave to avoid being stood down under subsection 524(1) (or purportedly under subsection 524(1));

(ii) the employee’s employer has authorised the leave;

(c) an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (a) or (b);

(d) an inspector.

(4) In dealing with the dispute, the FWC must take into account fairness between the parties concerned.

 1   Munro J, Duncan SDP, Roberts C, PR937708, at 19

 2   [2011] FWA 7469, Sams DP, 15 November 2011

 3   [2007] AIRC 212

 4   [2008] AIRC 863

 5   [2010] FWA 4216

 6   PN519-521, HSU

 7   Print H2892, Munro J, 2 June 1998.

 8   Maritime Union of Australia, Boulton J, Polites SDP, Dight C, 24 July 1996, Print N3584 at p.9.

 9   Exhibit D1, Attachment 1

 10   Exhibit D1, Attachment 2

 11   Exhibit D1, Attachment 3

 12   Exhibit D1, Attachments 4-9

 13   Exhibit HSU 1

 14 (1938) 60 CLR 601 per Dixon J at 621

 15   Print E4680,

 16   Print G6356

 17 (1984) 293 CAR 360

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