Dr Varsha Pilbrow v The University of Melbourne
[2020] FWC 5073
•29 SEPTEMBER 2020
| [2020] FWC 5073 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Dr Varsha Pilbrow
v
The University of Melbourne
(C2020/414)
COMMISSIONER YILMAZ | MELBOURNE, 29 SEPTEMBER 2020 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
Introduction
[1] Dr Varsha Pilbrow was employed by the University of Melbourne (the University) in the Department of Anatomy and Neuroscience (the Department). In August 2019, the Head of the Department gave Dr Pilbrow a Change Plan proposal arising from a review which designated her position redundant. At the same time, Dr Pilbrow was advised that the consultation period over the Change Plan would end in a week. On 6 September 2019, Dr Pilbrow was given 8 weeks’ notice that her employment will terminate due to redundancy.
[2] The National Tertiary Education Union (NTEU) issued a dispute notice to the University concerning the planned redundancy pursuant to clause 1.38.8 of the University of Melbourne Enterprise Agreement 2018 (the Agreement) on 30 September 2019.
[3] On 11 October 2019, the NTEU filed a form F10 dispute notification in the Commission. This matter was resolved with the parties agreeing to convene a Dispute Committee pursuant to clause 1.38.8 of the Agreement. On 31 October 2019, the NTEU filed a notice of discontinuance of that matter.
[4] A further dispute application was filed on 24 October 2019 by Dr Pilbrow. This matter was subject to conciliation before Deputy President Hamilton. Just prior to the conference, Maurice Blackburn Lawyers filed a notice to represent. The matter was closed following an opinion or recommendation by the Deputy President in December 2019.
[5] This application for the Commission to deal with a dispute in accordance with the dispute settlement procedure in the Agreement was filed on 28 January 2020 by the Applicant’s representative, Maurice Blackburn Lawyers.
[6] Initially this dispute was also allocated to Deputy President Hamilton. The University raised jurisdictional objections but agreed to participate in a conciliation conference. The matter did not settle at conciliation. The Applicant’s representative requested that the matter be allocated to another member for arbitration of the jurisdictional objections raised by the University.
[7] When the matter was allocated to my Chambers it was apparent that Dr Pilbrow had ceased employment with the University, and she had also filed further applications in the Commission which were still on foot. At the conference on 2 April 2020, there were 3 active files in the Commission, and the Applicant’s representative indicated that the parties agreed to engage in global settlement discussions. Consequently, arbitration of the jurisdictional objections was adjourned to enable conciliation in respect of the general protections application (C2020/1674). I also referred this matter to a member assisted conciliation (MAC) after it was reported by the parties that a settlement was probable.
[8] This matter was not settled at either the conciliation or at the MAC. The Applicant’s representative gave notice that it ceased to act for Dr Pilbrow immediately before the MAC. Dr Pilbrow insisted on arbitration of the jurisdictional objection.
[9] In summary the applications lodged by or on behalf of Dr Pilbrow were:
• C2019/6243 s.739 Application to deal with a dispute filed on 11 October 2019 by the NTEU and discontinued on 31 October 2019 following settlement;
• C2019/6545 s.739 Application to deal with a dispute filed on 24 October 2019. On 20 December 2019 the file was closed;
• C2020/414 s.739 Application to deal with a dispute filed on 28 January 2020;
• C2020/864 s.372 Application to deal with other contravention disputes filed 12 February 2020; and
• C2020/1674 s.365 Application to deal with contraventions involving dismissal filed on 18 March 2020.
[10] I provide the above summation for purposes of context in which the University and Dr Pilbrow have dealt with the process of settling this dispute and its relevance to the jurisdictional objections.
[11] The parties agreed to this decision to be made on the papers. Both parties complied with directions for the filing of materials. Both parties were self-represented.
Factual background
[12] It is not in dispute that Dr Pilbrow’s employment was covered by the Agreement.
[13] On 12 August 2019 Dr Pilbrow received the Change Plan proposal relating to the review of the Department which disclosed her proposed redundancy.
[14] The one week of consultation that was initially advised, was amended when the NTEU and University reached agreement to refer the dispute to a dispute committee consistent with clause 1.38.8 of the Agreement. The Dispute Committee was convened and met on 25 October and 6 November 2019. The Dispute Committee issued its decision on 12 November 2019. The majority decision of the Dispute Committee found that Dr Pilbrow “was afforded fair treatment in relation to the intention to terminate employment and that the action intended by the University is supported by evidence. Dr Pilbrow was appropriately informed and consulted with throughout the process and active efforts were made to find opportunities for redeployment.”1
[15] While the Dispute Committee was dealing with the dispute concerning Dr Pilbrow’s proposed redundancy, Dr Pilbrow filed a dispute in the Commission (C2019/6545) concerning the same subject matter.
[16] Both parties submitted information concerning redeployment opportunities. Dr Pilbrow submits that only she provided ideas for redeployment, while the University submits that redeployment opportunities either identified by Dr Pilbrow or by the University were canvassed, but no suitable role was found. The University provided a table detailing actions to identify opportunities over September to December 2019. None of the actions resulted in redeployment.
[17] On 20 November 2019, the University wrote to Dr Pilbrow advising her of the Dispute Committee decision. The University considered the dispute concerning the redundancy to be finalized.
[18] The initial notice to terminate issued on 6 September 2019 providing 8 weeks’ notice was amended to facilitate the Dispute Committee process and ultimately a review into alleged serious misconduct. The notice of termination was in effect extended 5 times. Dr Pilbrow’s last day of employment was 27 February 2020.
Background to this dispute
[19] On 8 January 2020, Dr Pilbrow sent an unsigned form F10 (which was prepared by Maurice Blackburn Lawyers) to her supervisor stating that she was raising a dispute in relation to clause 1.38.7.1 and was seeking a response.2 Clause 1.38.7.1 of the Agreement states:
“Where a grievance or dispute (excluding disputed matters set out at clause 1.38.8) arises between an Employee and the University the matter will first be discussed between the Employee concerned and their immediate supervisor.”
[20] The disputed matters excluded in clause 1.38.8, as referred to in clause 1.38.7.1, concerns disputed demotion or termination of employment or academic non-confirmation. The dispute raised by the NTEU concerned the matters contained in clause 1.38.8 and both parties resolved that dispute (C2019/6545), with the referral of the matter to a Dispute Committee consistent with clause 1.38.8 of the Agreement.
[21] In response to receipt of the unsigned form F10, Dr Pilbrow was sent a response on 9 January 2020 from the University asking her to clarify the intent of the document and suggested that she confer with her lawyer and to refer to clause 1.38 of the Agreement.3
[22] Dr Pilbrow submits that because her supervisor did not respond herself, the University “exhibited a lack of willingness to engage and of good faith.” Further, Dr Pilbrow submits that because the University’s response included her lawyer, there was an attempt to take the dispute out of the “local and informal” area. She also sent back an email on 9 January 2020, confirming her intention to deal with the grievance according to the steps in clause 1.38.4
[23] On 14 January 2020, the University wrote to Dr Pilbrow that the substance of the unsigned form F10 had already been responded to and asked for clarity on remaining issues, or alternatively to fix a meeting with the University after 15 January 2020 with her and her representative to discuss the matters in dispute.5
[24] Dr Pilbrow submits she continued to raise the dispute with her immediate supervisor and then on 16 January 2020, raised the dispute with her second level of management. The dispute was escalated to her third level of management on 20 January 2020. Dr Pilbrow confirmed that all matters contained in the form F10 remained in dispute.
[25] On the morning of 28 January 2020, this application was filed in the Commission. The University confirmed that the Applicant’s legal representative served the Dispute in the evening of 28 January 2020 on the University. The University also submits that when doing so, there was no communication concerning the application, nor any response to the requests by the University to meet.
[26] During the day of 28 January 2020, the University wrote to Dr Pilbrow confirming again, following earlier advice on 23 January 2020 that the matter had been delegated to Mr Hogan, Director of Workplace Relations, as Dr Pilbrow had failed to arrange to meet or speak to Mr Hogan. The University submit that Dr Pilbrow’s correspondence raises the concern that the process and unsigned form F10 submitted by her had pre-empted an outcome and did not entail a genuine attempt to resolve the grievances. On 28 January 2020, Dr Pilbrow was again invited to schedule a meeting over “the coming days” and to bring along her support person or legal representative.6
Allegations of misconduct
[27] In the month of October 2019, Dr Pilbrow was denied access to her lab and escorted from the University. It was alleged that she had deleted files. Dr Pilbrow requested the University follow clause 1.35 of the Agreement with respect to the allegations of misconduct.7 Clause 1.35 relates to the management of misconduct.
[28] Dr Pilbrow submits that the misconduct allegations were subject to her dispute notification in the Commission on 24 October 2019 (C2020/6545). Dr Pilbrow submits the University did not convene a dispute committee to deal with the allegations as required by the Agreement. However, following the conciliation conference in the Commission, the University agreed to arrange for a Misconduct Review Panel, provide Dr Pilbrow with materials to respond, her employment was suspended, and the scheduled termination of employment date extended. A decision from the Committee was released on 6 December 2019 which found ‘that there was insufficient evidence to sustain an assessment of serious misconduct”. 8
[29] Dr Pilbrow subsequently raised a further grievance firstly through the NTEU and then her lawyer who was appointed on 17 December 2019, that the professor that made the misconduct allegations against her did so vexatiously. This grievance was not resolved at the conciliation conference held on 20 December 2019 in the Commission. On 24 December 2019, the University confirmed to Dr Pilbrow that her final day of employment will be 27 February 2020.9
Provisions of the Agreement in dispute
[30] The application to deal with a dispute in accordance with a dispute settlement procedure as filed in the Commission as per the form F10, provides that the dispute concerns clauses:
• 1.36 Consultation and workplace change
• 1.38 grievance and dispute settlement procedure
• 1.40 Redundancy
• 1.41 Redeployment and other alternative actions
• 1.42 Notification of redundancy
• 2.19 Notice of termination by the University (Division 2- academic terms)
[31] Dr Pilbrow raises all of the above background material and summarizes process matters in her application as:
• Failure to engage with development of change proposal
• Failure to consult regarding the change proposal
• Failure to consult regarding redundancy
• Failure to satisfy redeployment obligations
• Insufficient basis for allegations and warning
• Failure to address complaint
• Insufficient notice period
[32] The relief sought in the form F10 was an interim order restraining the termination of employment and an order to return to work pending the outcome. Dr Pilbrow acknowledged the termination of employment had already taken effect when the matter of jurisdiction was to be determined, therefore sought consideration of the jurisdictional matters in order to prosecute her position that procedural aspects of her dispute had not been satisfied in accordance with the Agreement.
Submissions of the parties
[33] There are two jurisdictional objections raised by the University:
i. Failure to fulfill the steps of the dispute procedure, and
ii. The dispute had been settled.
Failure to fulfill the steps of the dispute procedure
[34] The University refers to clause 1.38.6, 1.38.7 and 1.38.9. Those clauses are as follows:
1.38.6. The parties will genuinely attempt to resolve grievances and disputes at the workplace in good faith and in confidence. Where possible, grievances should, in the first instance, be dealt with locally, impartially, efficiently and informally.
1.38.7. Dispute Procedure
1.38.7.1. Where a grievance or dispute (excluding disputed matters set out at clause 1.38.8) arises between an Employee and the University the matter will first be discussed between the Employee concerned and their immediate supervisor.
1.38. 7.2. If the grievance or dispute is unable to be resolved within a reasonable timeframe, the matter may be referred to the next level of management.
1.38.7.3. If the grievance or dispute cannot be resolved within a reasonable timeframe at the next level of management, the matter may be referred in writing to the Executive Director, Human Resources & OHS (or delegate).
1.38.7.4. The Union may directly raise a dispute relating to the interpretation, implementation or application of the Agreement or applicable NES provisions which does not relate to a particular Employee in writing with the University through the Executive Director Human Resources & OHS (or delegate).
1.38. 7.5. For the purpose of this clause 1.38.7 reference to "a reasonable timeframe" means five working days unless an extension of time is agreed to facilitate resolution of the matter.
[35] The University submits that Dr Pilbrow notified each level of management, but did not genuinely attempt to settle the grievance by failing to engage in any discussions with any level of management. Further, the University submits that while the Applicant bears the onus to arrange a meeting, she ignored two offers by the University to meet.10
[36] The University acknowledges that the grievance was first initiated while Dr Pilbrow was employed and even though she is no longer an employee, there is no jurisdictional objection on this basis. However, the University does raise the point that given that Dr Pilbrow is no longer an employee, her failure to comply with the dispute settlement process cannot be remedied. It also submits that by filing the dispute, it does not enliven the Commission’s jurisdiction.11
[37] Dr Pilbrow submits that the University was not genuine in its attempt to resolve the dispute because they included Mr Hogan in all of her email correspondence while her lawyer was not. She also submits that Mr Hogan had spoken to her lawyer (not her) on 16 January 2020 and by including her lawyer in University emails was an attempt to drag her lawyer into the dispute process. Dr Pilbrow raises this point in context of clause 1.38.5 which prescribes that lawyers or legal counsel are excluded as support persons or representatives if the employee is to be assisted during the process, other than when the matter proceeds to the Fair Work Commission.
[38] Dr Pilbrow’s argument that the University may have been disingenuous, is in my view a neutral point because Dr Pilbrow had in December 2020 engaged her lawyer as her representative in respect to the ongoing dispute relating to her redundancy before the Dispute Committee and the first dispute before Deputy President Hamilton. Email evidence between the parties also showed Dr Pilbrow was represented by Maurice Blackburn Lawyers.
[39] Dr Pilbrow argues that she made a genuine attempt to resolve the grievances and her alleged 12 emails and 3 phone calls demonstrate that. She submits that the onus does not rest on her to arrange conciliation.
[40] In terms of the unsigned form F10, Dr Pilbrow argues that the Agreement neither prescribes nor precludes the use of the form. She submits that by providing the form it served the purpose of providing clarity of next steps should there be no genuine attempt for resolution.
The dispute had been settled
[41] The University submit and it is not in dispute that Dr Pilbrow requested on 30 September 2019, that her dispute relating to her redundancy be referred to a Dispute Committee pursuant to clause 1.38.8 of the Agreement. The dispute concerning the redundancy at that time was subject to a dispute notification by the NTEU on behalf of Dr Pilbrow in this Commission because of the refusal by the University to refer the matter to a Dispute Committee.
[42] Dr Pilbrow had the opportunity to make submissions to the Dispute Committee.
[43] The University submits that because the subject matter concerning this dispute is akin to the subject matter (process matters concerning clauses 1.36.10, 1.40.2, 1.40.2.2, and 1.36.5) of the dispute filed on her behalf by the NTEU, settled and wholly discontinued as part of a settlement, that this matter is precluded from proceeding in the Commission. The University says it is bad faith to have reached a settlement then raise the same issues. The University further relies on clause 1.38.9.3 which states “Disputed matters dealt with by the Dispute Committee as set out at clause 1.38.8 may not be referred to the FWC”.
[44] Dr Pilbrow argues that procedural matters may nevertheless be dealt with by the Commission, even though the Dispute Committee made a decision regarding the redundancy. Dr Pilbrow distinguishes alleged noncompliance with matters of procedural fairness as set out in the Agreement. She acknowledges that pursuant to clause 1.38.3 grievances and disputes about the “decision” cannot be brought subject to the dispute settlement procedure. Dr Pilbrow uses this subclause and connects it with decisions of the Disputes Committee pursuant to clauses 1.38.8. The subclause Dr Pilbrow relies on is as follows:
“1.38.3. Grievances and disputes regarding alleged non-compliance by the University with processes set out in the Agreement (including matters of procedural fairness) when coming to a decision may be brought under this Dispute Procedure but not grievances or disputes about the decision itself.”
Consideration
[45] The Commission can arbitrate a dispute where the dispute resolution procedure authorizes it.12 Though the Commission must not exercise any powers that may be limited by the term in the Agreement13. The Grievance and dispute settlement procedure clause in the Agreement authorizes the scope for the Commission to deal with a dispute.
[46] The Agreement dispute settlement clause limits the scope of workplace grievances, places conditions on representation at various levels, stipulates a procedure for progressing disputes, provides a process for internal and independent resolution of certain disputes and limits the powers of the Commission in respect to certain disputes.
[47] The principles to be applied in the construction of agreements are well established. I respectfully adopt those principles in AMWU v Berri Pty Limited[2017] FWCFB 3005 at [114] and AMIEU v Golden Cockerel Pty Ltd[2014] FWCFB 7447 at [19-41].
[48] The Agreement clause is to be read objectively within the context and purpose of the Agreement, and in the context of its industrial setting.
[49] Clause 1.38 prefaces the purpose of the procedure which refers to direct interaction between the employee and the university when attempting to resolve disputes in the workplace14, and that “parties will genuinely attempt to resolve grievances”.
[50] I accept the evidence that Dr Pilbrow did not genuinely attempt to resolve the grievance. The evidence bears that out, as she did not engage with any level of management in the required steps other than sending correspondence. She did not respond to two invitations to meet with Mr Hogan who had been delegated responsibility to communicate with Dr Pilbrow in respect of the dispute.
[51] Dr Pilbrow also submits that the University tried to drag her lawyer into the dispute procedure when she did not include him, to suggest that the University was disingenuous or attempted to invalidate the dispute settlement procedure. The evidence shows that Dr Pilbrow’s lawyer was involved, as can be seen from her emails of 9 January 2020 (Maurice Blackburn Lawyers cc’d), of 16 January 2020 (forwarded to Maurice Blackburn Lawyers 4 minutes after sending the email to the University), of 20 January 2020 printed by a Maurice Blackburn Lawyers legal assistant and forwarded email of 23 January 2020 to Maurice Blackburn Lawyers. The materials show that Dr Pilbrow was acting on legal advice and preparing her dispute to file in the Commission and she was not genuinely attempting to resolve the dispute.15
Dispute settlement procedure steps
[52] Clause 1.38.1 provides for three mandatory steps in the dispute resolution process. The steps require that the matter will first be discussed between the Employee concerned and their immediate supervisor. The ordinary meaning of discussion is the action of talking, an email notification of dispute is not the action of talking. Level 2 and 3 is an escalation of the requirement of step 1, being the discussion between the Employee and the next level of management.
[53] The dispute settlement clause does not provide scope for skipping a step, but it does allow for progression where the dispute cannot be resolved. Again, the scope of the clause requires effort by both the Employee and the levels of representation in the University to engage in discussion as a precursor to proceeding to the next step. The evidence shows that Dr Pilbrow did not respond to the request for further information nor did she agree to meet, despite two requests from the University.
[54] The Commission has jurisdiction under s.739 of the Fair Work Act 2009 subject to the scope of the clause which confers the dispute settling powers and limitations on the Commission.
[55] Having considered the dispute settlement clause in its entirety, I am of the view that jurisdiction of the Commission is not enlivened.
Second juris objection
[56] Clause 1.38.1 to 1.38.6 sets the scope and limitations for jurisdiction of settlement of disputes, the dispute settlement procedure is set out in 1.38.7, disputes dealt by a Disputes Committee is found at clause 1.38.8 and the powers conferred on the Commission is at 1.38.9.
[57] The provisions conferring scope on the Dispute Committee are broader than the Commission, as the grounds for making an application before it can be on one or more of the following:
a) “The Employee was not afforded fair treatment;
b) The intended action by the University is not supported by the evidence; or
c) The intended action by the University was disproportionate to the circumstances”.
[58] The grounds go to process and decision and this is evident by the decision of the Dispute Committee.
[59] The disputed matters raised by Dr Pilbrow relate to process and the decision; this is what she refers to in her application before this Commission. The Dispute Committee has dealt with both process and decision. The Commission has no jurisdiction to deal with a dispute concerning a decision to make Dr Pilbrow’s employment redundant, however, it could have jurisdiction to deal with matters relating to clause 1.38.1 to 1.386, if the Dispute Committee had not done so, and provided the dispute settlement clause was enlivened by following the dispute settlement procedure steps.
Conclusion
[60] I have determined that the jurisdiction of the Commission has not been enlivened as the dispute settlement procedure has not been followed. Further the grievances articulated by Dr Pilbrow concerning her redundancy and the first misconduct dispute were considered by a Dispute Committee pursuant to the dispute settlement clause which prevents such matters being referred to this Commission.
[61] The second dispute concerning misconduct allegations cannot be dealt with as the Commission’s jurisdiction is not enlivened as the steps in the dispute settlement procedure have not been followed.
[62] For the reasons above the application is dismissed.
COMMISSIONER
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1 Respondent’s outline of submissions on jurisdictional objections at [11].
2 Respondent’s outline of submissions on jurisdictional objections at [13] and Applicant’s response to Respondent’s jurisdictional objections at [35] on p.9.
3 Respondent’s outline of submissions on jurisdictional objections at [14].
4 Applicant’s response to Respondent’s jurisdictional objections at [2-4] on p.10.
5 Respondent’s outline of submissions on jurisdictional grounds at [15].
6 Respondent’s outline of submissions on jurisdictional grounds at [22].
7 Applicant’s response to Respondent’s jurisdictional objections at [13 – 15] on p.6.
8 Ibid at [16-27] on pp.6-8.
9 Ibid at [28-34 at pp.8-9.
10 Respondent’s outline of submissions on jurisdictional grounds at [24-30].
11 Respondent’s outline of submissions on jurisdictional grounds at [30-34].
12 S.739(4) Fair Work Act 2009.
13 S.372 (3) Fair Work Act 2009.
14 Clause 1.38.5.
15 Respondent’s submissions in reply on jurisdictional grounds attachments E,F,G, H and I.
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