Frank Muscat v Department of Human Services Disability Accommodation Services Eastern Region

[2013] FWC 6059

[2013] FWC 6059

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Frank Muscat
v
Department of Human Services Disability Accommodation Services Eastern Region
(C2013/3543)

COMMISSIONER GREGORY MELBOURNE, 11 SEPTEMBER 2013

Jurisdiction - matters in dispute are not matters that arise from the terms of the Agreement or the National Employment Standards.

Introduction

[1] Mr Frank Muscat has been employed by the Department of Human Services (DHS) since 1995. He last worked as a Disability Development and Support Officer. In May 2011 an investigation was initiated into an incident involving an allegation Mr Muscat had fallen asleep while at work. Following the incident he was initially suspended on full pay while the investigation took place. He then went on a period of paid leave pending the outcome of the investigation. A dispute exists about whether he elected to utilise his paid leave entitlements at this time, or was directed to do so by his employer.

[2] Mr Muscat is still employed by DHS. However, since the events of May 2011 when he was suspended he has not returned to work. He says he was not actually offered any alternative work opportunities until June 2012 but, regardless, maintains he is currently unwell and unable to return to work. This is due to an anxiety disorder he now suffers from which he says is a result of the actions of his employer.

[3] He now claims to be in dispute with DHS and submits the Commission has jurisdiction to deal with the dispute. However, the nature of his claims and the matters in dispute have been something of a “moveable feast.” The initiating application to the Commission indicated the DHS was in breach of the Victorian Public Service “Resolving Personal Grievances Policy and Procedures” and sought “Payment for pain and suffering” of an undisclosed amount. However, in the subsequent written submissions, filed on Mr Muscat’s behalf, the dispute is said to concern:

“(a) Non payment of wages whilst suspended.

(b) The disciplinary determination made on 20 December 2012.

(c) The reinstatement of leave entitlements.” 1

These matters are said to arise from the “Unsatisfactory Performance and Discipline Procedure” contained in Schedule C of the Agreement that covers the parties and to therefore come within the meaning of a dispute under section 738 of the Fair Work Act 2009 (Cth) (the Act). That agreement is the HACSU Department of Human Services Disability Services Enterprise Agreement 2008–2012 2.

[4] However, in the oral submissions made on Mr Muscat’s behalf it was stated that the dispute concerns the fact that when suspended in accordance with the Agreement Mr Muscat did not elect to take his leave entitlements, but was instead directed to do so. The nature of the dispute was stated in the following terms –

“What he is seeking is the reinstatement of his sick leave and accrued leave that he has taken in accordance with Schedule C of the EBA. That's the matter that's being pressed before the Commission.” 3

[5] The Fair Work Act 2009 provides that the Commission is only able to deal with a dispute arising under an Enterprise Agreement to the extent that it is empowered to do so by the terms of the dispute resolution procedure in the Agreement. In the present matter clause 13.1.1 of the Agreement provides that the scope of the dispute resolution clause extends to “a dispute or grievance about a matter arising under this Agreement or the National Employment Standards, other than termination of employment...” 4

[6] The DHS has raised a jurisdictional objection to the application. It submits the matters in dispute are not matters that arise under the terms of the Agreement or the National Employment Standards (NES). Therefore, the Commission has no power to deal with the dispute and the application should be dismissed for want of jurisdiction. This decision deals with that jurisdictional objection.

[7] Mr C. King of Counsel was given leave to appear on behalf of Mr Muscat under section 596(2) of the Act on the basis it would be unfair not to grant leave because Mr Muscat would otherwise be unable to represent himself effectively

The Issue to be Determined

[8] Are the matters that Mr Muscat claims to be in dispute about with DHS matters that the Commission is empowered to deal with under the dispute resolution provisions in the Agreement that covers the parties?

The Evidence and Submissions

[9] DHS made reference to various claims made by Mr Muscat at different times and quite properly indicated several were not matters that this Commission has jurisdiction to deal with. However, as indicated in the Introduction, the matter in dispute has been narrowed down to Mr Muscat’s leave entitlements in the context of Schedule C of the Agreement. In regard to that issue DHS submits:

“...if the applicant's claim just dealt with those issues and was seeking an outcome not based on monetary entitlements but other entitlements which could be referred back to the Disability Agreement, they may be able to argue that it's within jurisdiction.” 5

[10] Ms Carryl Fenner, who gave witness evidence on behalf of DHS, also said in cross-examination that the jurisdictional point may not have been pressed if it was understood the application only sought to deal with Mr Muscat’s leave entitlement, and whether he was entitled to be re-credited with leave under clause 6 of Appendix C.

[11] Mr Muscat submits he didn’t elect to take leave, but was directed to do so, and in accordance with Schedule C of the Agreement is entitled to be re-credited with those leave entitlements, given that his employment has not been terminated.

Consideration

[12] Mr Muscat has gone down a circuitous path to get to this point. His original application did not evidently disclose how the Commission had jurisdiction to deal with the various issues he claimed to be in dispute about with his employer. However, the dispute he now seeks to have the Commission deal with and, if necessary determine, has been given sharper focus during these proceedings. As indicated, it concerns Schedule C of the Agreement and, in particular, clause 6 of that Schedule which deals with the process by which employees involved in allegations of “Serious Misconduct” are to be dealt with. This includes what is to occur if an employee is directed to take leave during a period of suspension while an investigation takes place, but the subsequent outcome of that investigation does not result in the employee being terminated.

[13] The parties are clearly in dispute about whether Mr Muscat was directed to take leave while the allegations involving his conduct were being investigated. The dispute settling procedure in the Agreement (clause 13) sets out the procedures for dealing with “a dispute or grievance about a matter arising under this Agreement...” 6 It provides for the matter to be referred to the Commission if it has not been able to be resolved in the workplace. Clause 6 of Schedule C also contains a range of provisions dealing with what is to occur when an allegation of serious misconduct is being investigated, including sub-clause 6.2(e) which states:

“(e) where the Employee is directed to take accrued leave, and the disciplinary outcome applied is not termination of the Employee’s employment, then the leave taken shall be re-credited to the Employee” 7

[14] The approach to be taken to the interpretation of the provisions of an Agreement and the relevant authorities in that regard are well known and established. When interpreting industrial agreements the starting point should be consideration of the natural and ordinary meaning of the words used. I have followed that approach in this decision. I am, in turn, satisfied the words in Appendix C have a plain and ordinary meaning and should be interpreted in that way. (City of Wanneroo v Holmes 8; Cape Australia Holdings Pty Ltd t/as Corrosion Control Pty Ltd v Construction Forestry Mining and Energy Union9.)

[15] I am satisfied that Mr Muscat is in dispute with his employer about his leave entitlements while being investigated in regard to an allegation of serious misconduct and that the dispute concerns a “dispute or grievance about a matter arising under this Agreement,” being the Agreement that covers the parties. I am, in turn, satisfied the Commission has jurisdiction to deal with the dispute.

[16] Having come to this decision I now also propose the following course of action, given that the nature of the matter in dispute before the Commission has been clarified. The parties are again to attend a conference in accordance with sub-clause 13.7 of the dispute settling procedure in the Agreement to ascertain whether the matter in dispute can be resolved by that means. In the event it cannot either party is at liberty to request it be referred for determination by arbitration under sub-clause 13.8 of the dispute procedure. At this stage I propose to continue to deal with the matter in accordance with the process set out in this decision. However, if either party objects to my continuing involvement the matter will be referred to another Member. The parties have 14 days from the date of this decision to indicate whether they wish to have the matter referred in that way. In the event neither party makes such a request the matter will be listed for further conference by the Commission.

Appearances:

C. King appeared on behalf of the Applicant.

J. Cooney appeared on behalf of the Respondent.

Hearing details:

2013.

Melbourne:

15 July.

 1   Applicant Outline of Submissions at para 12.

 2   AE877880

 3   Transcript at PN141.

 4   AE877880 at cl.13.1.1.

 5   Transcript at PN139

 6   AE877880 at cl.13.1.1.

 7   AE877880 at Schedule C cl.6.2(e)

 8 (1989) 30 IR 362

 9   [2012] FWAFB 3994

Printed by authority of the Commonwealth Government Printer

<Price code A, PR540645>