Gabrielle Dayhew v ACT Government as represented by the Education and Training Directorate

[2016] FWC 5374

[2016] FWC 5374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Gabrielle Dayhew
v
ACT Government as represented by the Education and Training Directorate
(C2016/154)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 5 AUGUST 2016

Application to deal with dispute - jurisdictional objection - objection upheld - application dismissed.

[1] On 27 January 2016 Ms Gabrielle Dayhew (the Applicant) lodged an application made under s.739 of the Fair Work Act 2009 (the Act) and in accordance with the provisions of the ACT Public Service Education and Training Directorate (Teaching Staff) Enterprise Agreement 2011-2014 1 (the Agreement). The application sought, inter alia, to have the Fair Work Commission (the Commission) in accordance with clause J7 – Right of external review of the Agreement review the decision of the ACT Government as represented by the Education and Training Directorate (the Respondent) to uphold the written warning issued to Ms Dayhew on 10 June 2015. According to her application, Ms Dayhew’s employment had been terminated in December 20142.

[2] On 23 February 2016 the Commission wrote to the parties inviting them to comment on the Commission’s jurisdiction to deal with the dispute given the terms of the Agreement and that Ms Dayhew was no longer employed by the Respondent. Both parties advised the Commission in early March 2016 that they wished to be heard on the jurisdictional issue. A conference was convened by the Commission on 10 March 2016 but failed to resolve the dispute. In subsequent developments, the Commission issued Directions on 4 April 2016 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the matter.

[3] The matter was heard on 6 June and 26 July 2016. At the hearing, Ms Dayhew was represented by Mr David Wedgwood, while Ms Helen Sexton appeared with permission for the Respondent. Mr Dougall Whitton, the Respondent’s Manager Employee Relations, Ms Coralie McAlister, the Respondent’s Director People and Performance, and Ms Mary Brennan of CPM Reviews and the Independent Chair of the Appeal Panel which considered Ms Dayhew’s appeal under the Agreement, all gave evidence as a result of orders requiring them to attend the Commission. Those orders were issued as a result of an application by Ms Dayhew.

[4] For the reasons set out below, I have concluded that as Ms Dayhew was not an employee of the Respondent at the time she lodged her application the Commission does not have jurisdiction to deal with her application. Ms Dayhew’s application is therefore incompetent and will be dismissed.

Background

[5] The Appeal Panel Report into findings made against Gabrielle Dayhew 3 sets out the background to this matter. The following chronology of events is largely drawn from that Report and other material before the Commission.

• Ms Dayhew commenced employment with the Respondent in January 2011 and until 2015 was employed on either a casual or fixed term contract basis. From 12 May 2014 to 26 January 2015 Ms Dayhew was employed on a contract at Malkara School, a primary school for students with special needs.



• In August 2014 a number of concerns regarding Ms Dayhew’s conduct were raised with the School’s principal by two assistants working with Ms Dayhew. The principal discussed those concerns with Ms Dayhew on 26 and 28 August 2014.



• On 3 September 2014 Mr Whitton wrote to Ms Dayhew advising her that allegations regarding her conduct had been reported.



• On 10 September 2014 Ms Dayhew was transferred to another school in accordance with the Agreement.



• On 16 September 2014 Mr Whitton requested that ACT Shared Services conduct an investigation into the allegations made against Ms Dayhew. Mr Whitton also wrote to Ms Dayhew on that day regarding further allegations.



• On 17 December 2014 Ms Dayhew was interviewed as part of the investigation and on 15 January 2015 she endorsed the transcript of that interview.



• On 26 January 2015 Ms Dayhew’s fixed term contract ended. Ms Dayhew however remained on the Respondent’s casual register.



• On 31 March 2015 Ms Dayhew’s registration with the ACT Teacher Quality Institute (TQI) lapsed (registration is a prerequisite to teach in the ACT) and as a result Ms Dayhew was unable to express her availability for casual employment with the Respondent.



• On 14 May 2015 Mr Whitton wrote to Ms Dayhew advising that he had considered the investigation report which had found that two of the ten allegations made against her had been substantiated. Mr Whitton also indicated that he proposed to issue Ms Dayhew with a written warning and invited her to provide any response within 14 days.



• On 28 May 2015 Ms Dayhew responded to Mr Whitton complaining about the delay in investigating the allegations against her and asserting that the delay had affected her casual teaching in the ACT education system. Ms Dayhew requested a further meeting to discuss the proposed finding.



• Mr Whitton responded on the same day indicating that he would consider whether a further meeting would assist him in determining the matter and assured Ms Dayhew that the investigation process had remained confidential and had not affected her capacity to work in the ACT education system since the commencement of the 2015 school year on 2 February 2015.



• On 10 June 2015 Mr Whitton wrote to Ms Dayhew advising that he did not consider a further meeting necessary and that he intended to proceed with the disciplinary action he originally proposed.



• On 17 June 2015 Mr Wedgwood initiated an appeal against Mr Whitton’s decision of 10 June 2015 under Section J the Agreement.



• In its report, which was finalised on 21 August 2015, the Appeal Panel dismissed Ms Dayhew’s appeal. The Appeal Panel Report was forwarded to Ms McAlister in accordance with clause J5.1 of the Agreement for consideration and decision. The Report was forwarded to Mr Wedgwood on 24 August 2015.



• On 3 September 2015 Ms McAlister wrote to Mr Wedgwood confirming, inter alia, the written warning issued by Mr Whitton on 10 June 2015. The letter also advised Mr Wedgwood that Ms Dayhew may seek a review of her decision by the Commission in accordance with clause J7 of the Agreement.



• As previously noted, on 27 January 2016 Ms Dayhew lodged her application under s.739 of the Act with the Commission.

The statutory framework

[6] The provisions of the Act which empower the Commission to deal with disputes under a disputes settlement procedure of an enterprise agreement relevantly provide:

“738 Application of this Division

This Division applies if:

…

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effectas subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

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)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

The Agreement provisions

[7] 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 of the FW Act.

G2.2 For the purposes of this clause, except where the contrary intention appears, the term ‘parties’ refers to ‘parties to the dispute’.

G2.3 All persons covered by this Agreement agree to take reasonable internal steps to prevent, and explore all avenues to seek resolution of, disputes.

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.

G2.5 In the event there is a dispute, the following processes will apply.

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 FWA.

G2.9 FWA may deal with the dispute in two stages:

(a) FWA 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 FWA is unable to resolve the dispute at this first stage, FWA may then:

i. arbitrate the dispute; and
ii. make a determination that is binding on the parties.

G2.10 …

G2.17 While the parties are trying to resolve the dispute using procedures in this clause:

(a) an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and
(b) an employee must comply with a direction given by the head of service to perform other available work at the same workplace, or at another workplace, unless:

i. the work is not safe; or
ii. applicable workplace health and safety legislation would not permit the work to be performed; or
iii. the work is not appropriate for the employee to perform; or
iv. there are other reasonable grounds for the employee to refuse to comply with the direction.”

“H6 Investigating allegations of misconduct

H6.1 If, after conducting the evidence gathering process, the head of service is of the opinion that the alleged misconduct cannot be resolved informally in accordance with subclause H4.4, the head of service will:

(a) investigate the alleged misconduct by making arrangements for an appropriately trained or experienced person (the investigating officer) to investigate the alleged misconduct; and
(b) inform the Director Human Resources.

H6.2 No investigation is necessary where the employee fully admits to the alleged misconduct and the employee agrees that there is no need for an investigation. In such cases, the head of service may determine the appropriate discipline action in accordance with clause H7.

H6.3 The investigating officer will:

(a) inform the employee in writing of the nature of the alleged misconduct, the nature of the proposed investigation and the possible implications of the misconduct, including the discipline actions available; and
(b) give the employee a reasonable opportunity to respond to allegations, in writing and/or at a scheduled interview, before forming a conclusion; and
(c) provide the employee with at least 24 hours written notice prior to conducting an interview, advise them if the interview is to be recorded electronically, and provide the employee with a copy of the record; and
(d) advise the employee that the employee may have a union or other employee representative present during the interview to support the employee and will allow reasonable opportunity for this to be arranged; and
(e) provide a record of the interview to the employee to correct any inaccuracies in the record and provide comments before signing the record; if the employee elects not to sign the record, then details of the offer will be noted.

H6.4 The investigating officer should as soon as practicable take any further steps considered necessary to establish the facts of the allegations and provide a written report to the head of service.

H6.5 After considering the report from the investigating officer, the head of service will make a determination on the balance of probabilities as to whether misconduct has occurred.

H6.6 If the head of service determines that the allegations are unsubstantiated, the head of service will notify the employee of this finding in writing and advise that no discipline action will be taken under these procedures.

H7 Discipline action

H7.1 Subject to subclause H3.4, in cases where serious misconduct is found to have occurred, the head of service may immediately terminate the employee’s employment without giving the employee five working days within which to respond to the proposed discipline action under paragraph H7.5(d).

H7.2 In circumstances where the head of service, following an investigation or full admission by the employee as per subclause H6.2, determines misconduct has occurred, and the head of service considers discipline action is appropriate, one or more of the following actions may be taken in relation to the employee:

(a) formal counselling of the employee;
(b) written warning;
(c) written admonishment;
(d) a financial penalty;
(e) transfer temporarily or permanently to another position at level or to a lower level; or
(f) termination of employment in accordance with the PSM Act.

For the purposes of this clause financial penalties are:

i. reducing the employees increment level;
ii. deferring incremental advancement; and
iii. imposing a fine.

H7.3 In relation to paragraph H7.2(e), 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.

H7.4 Discipline action taken under these procedures must be proportionate to the degree of misconduct concerned. In determining the appropriate discipline action to be taken, 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;
(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.

H7.5 Before taking discipline action, the head of service will advise the employee in writing of:

(a) the decision as to whether the misconduct has been found to have occurred; and
(b) the reasons for arriving at this decision; and
(c) the discipline action(s) proposed; and
(d) the period during which the employee has to respond to the proposed discipline action (a minimum of five working days).

H7.6 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 H7.5 (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 discipline 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.”

“H10 Right of appeal

H10.1 An employee has the right under Section J to appeal against any discipline action taken under clause H7, or against any decision taken under clause H5 to suspend the employee without pay, except action to terminate the employee’s employment.

H10.2 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.

H10.3 The appeal procedures under Section H apply to the exclusion of the rights of appeal and review under the PSM Act 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 is not satisfied with the outcome of decisions described in the following clause.

J1.2 This appeal mechanism will apply to:

(a) decisions to take discipline action under Section H of this Agreement, except a decision to terminate the person’s employment or a decision to suspend an employee with pay;
(b) decisions arising from underperformance action under Section H of this Agreement, except a decision to terminate the person’s employment;
(c) decisions taken in relation to an employee’s eligibility for benefits under clauses K5, K6 and the amount of such benefits, the amount payable by way of income maintenance under clause K9, and the giving of a notice of involuntary redundancy or notice of reduction in classification under clauses K7 and K8;
(d) any other decision that is subject to appeal under the PSM Act.

J1.3 An employee may have an entitlement to bring an action under the FWA in respect of any termination of employment under this Agreement. This will be the sole right of review of such an action.

J2 Initiating an appeal

J2.1 An employee, or the employee’s union or other employee representative, 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 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 seven days of being notified of the decision to take the action and, in the case of promotion, within 14 days of being notified of the decision.

…

J5 Powers of the appeal panel – other matters

J5.1 After investigating any application under this clause other than an appeal about promotion or temporary transfer, the appeal panel will, subject to subclause J5.3, make a written report containing recommendations to the head of service. A copy of this report will be provided to the appellant at the same time.

J5.2 …

J5.4 The head of service, after considering the report from an appeal panel under subclause J5.1, will make a decision on any recommendation in the report and inform the appellant in writing of the reasons for that decision within 14 days of receiving the report.

J5.5 …

J7 Right of external review

J7.1 The employee or the employee’s union or other representative may seek a review by the FWA of a decision of the head of service under subclause J5.4 or subclause J5.7.

J7.2 FWA 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 FWA will be binding, subject to any rights of appeal against the decision to a Full Bench in accordance with clause G2.15.” (Underlining added)

The Applicant’s case

[8] In short, Ms Dayhew submitted that she was an employee at the time that the misconduct procedures were commenced by the Respondent and that as such she was entitled to the final stage of those procedures under the Agreement, i.e. to have the Commission determine the matter. Ms Dayhew in her submissions also disputed key aspects of the Respondent’s submissions. For example, Ms Dayhew disputed the Respondent’s contention that it was now known that there was no employment relationship between the parties when Ms McAlister wrote to her on 3 September 2015. Ms Dayhew also drew different conclusions from several of the authorities relied upon by the Respondent and highlighted that the circumstances in this case differed from those in those authorities for a number of reasons, including that in this case the matter was founded on the disciplinary provisions of the Agreement which were initiated by the Respondent and that in none of the cases relied upon did there exist a statutory definition of employee as in this case.

[9] At the hearing, Ms Dayhew contended that her application used the Agreement’s dispute resolution clause as the last stage of a process that commenced at the point at which the Respondent issued the alleged misconduct allegation against her in accordance with the Agreement, adding that each and every clause of the Agreement specifically empowered the next stage of the process. In support of that contention, Ms Dayhew submitted that each of the authorities relied upon by the Respondent made it abundantly clear that once a formal process had commenced under an agreement that every individual was entitled to the entirety of the benefits of their rights under the relevant agreement.

[10] Ms Dayhew also submitted that the obvious extension of the Respondent’s submission that the Commission lacked jurisdiction to deal with her application on the basis that she was not an employee was that the warning issued to her was “illegal” as was the advice provided by the Respondent to the TQI, adding that the Respondent’s subsequent refusal to withdraw both was a “gross breach of law” 4. Beyond this, Ms Dayhew highlighted Ms Brennan’s evidence that she had no doubt that the process undertaken by the Appeal Panel was legally sound and that on three separate occasions representatives of the Respondent had written to her stating that the Agreement did apply. Finally, Ms Dayhew, relying on the Full Bench decision in McDermott Australia Pty Ltd v The Australian Workers’ Union, & The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)5 (McDermott), submitted that at no stage was she ineligible to be appointed as a fixed term employee by the Respondent.

The Respondent’s case

[11] In its written submissions the Respondent submitted that Ms Dayhew had no standing to bring her application in accordance with the Agreement’s dispute settlement procedure as she was not an employee and had not been since February 2015. The Respondent further submitted that in this case the application of the Agreement’s dispute settlement procedure only arose by reference as clause J7.2 of the Agreement provides that the Commission’s powers and functions under the dispute settlement procedure will be adopted for the purpose of resolving an application for external review under clause J7 of the Agreement. In support of its submissions regarding jurisdiction, the Respondent relied on several authorities, including Coughlan v Wyndham City Council 6 (Coughlan), Construction, Forestry, Mining and Energy Union v North Goonyella Coal Mines Pty Ltd7 (North Goonyella) and ING Administration Pty Ltd v Jajoo8 (ING).

[12] In addition, the Respondent acknowledged that the statement contained in Ms McAlister’s letter of 3 September 2015 to Ms Dayhew that she had a right to seek a review by the Commission of the upheld disciplinary decision was inaccurate given that Ms Dayhew had not been an employee since February 2015. Further, the Respondent submitted that the statement, although misguided, unfortunate and arguably accepted by Ms Dayhew as accurate, was not of itself capable of enlivening the jurisdiction of the Commission in circumstances where that jurisdiction was clearly not supported by the applicable statutory scheme.

[13] Against that background, the Respondent contended, inter alia, that the application should be dismissed for lack of jurisdiction.

[14] At the hearing, the Respondent submitted that this matter came about through what it described as an “unfortunate combination or confluence of incompatible processes” 9. As to what those “incompatible processes” were, the Respondent referred to several, including that:

• the finalisation of the investigation process was delayed for a number of reasons for an unacceptable length of time;



• it was not cognisant of the fact that due to the cessation of Ms Dayhew’s employment there was no contractual or legislative basis for it inviting Ms Dayhew to exhaust any further rights of review; and



• it saw fit to continue with a rigorous process in relation to the misconduct investigation as a result of its responsibility to uphold the ACT’s teacher code of conduct which was administered by the TQI.

[15] Beyond this, the Respondent submitted that:

• at the time Ms Dayhew’s application was made, she was not an employee of the Respondent and therefore had no standing under the Agreement to bring her application;



• while it was true that the background to this matter concerned a disciplinary process, the matter before the Commission was based on the dispute resolution provisions of the Agreement;



• the statutory definition of employee referred to by Ms Dayhew did not alter the fact that she did not come within that definition as she was not an employee, casual or otherwise, of the Respondent at the time her application was made;



• the circumstances in this case differed from those in North Goonyella in that Ms Dayhew brought her application almost a year after her employment had ceased and some three months after she was advised of the outcome of the Appeal Panel’s consideration, whereas in North Goonyella the employees brought their application to the Commission prior to being terminated from their employment; and



• as Ms Dayhew was not an employee at the time she made her application, the matter ought to be dismissed.

Mr Whitton’s evidence

[16] Key aspects of Mr Whitton’s oral evidence were that:

• the investigation conducted by ACT Shared Services took far longer than it should have;



• it only became clear to him when these proceedings started that Ms Dayhew’s TQI registration had lapsed on 1 April 2015;



• his understanding now was that Ms Dayhew was not an employee of the Respondent as of 1 April 2015;



• as Ms Dayhew was not an employee of the Respondent on 10 June 2015 there was no basis for imposing any disciplinary action on her, adding that he formed that view once these proceedings had started and the Respondent enquired into Ms Dayhew’s statements;



• the reference in his letter of 10 June 2015 to Ms Dayhew to her appeal rights was written in good faith, acknowledging that there was some information that was available on 1 April 2015 that had passed between the Respondent and TQI which may have changed the process but that he was not aware of that information at the time he wrote his letter; and



• he had not taken any action to withdraw the disciplinary action imposed on Ms Dayhew.

Ms McAlister’s evidence

[17] In her oral evidence Ms McAlister attested among other things that:

• the statement in her letter of 3 September 2015 to Ms Dayhew regarding her appeal rights was based on the assumption that she remained an active member of the Respondent’s casual pool at the time;



• as to whether that statement remained true, were the Respondent aware then of what it now was aware then her response would have been different;



• on 3 September 2015 she was not aware that Ms Dayhew’s TQI registration had not been renewed;



• she had been informed by the TQI that if the Respondent’s officers were not expedient in reapplying for TQI registration that they would be asked to complete and submit a new registration form;



• once Ms Dayhew’s TQI registration lapsed she would not have been able to express her availability for casual employment in the Respondent’s staffing database, though she would have remained eligible for either fixed term or continuing employment;



• there was no impediment to the Respondent offering Ms Dayhew either fixed term or permanent employment;



• in the absence of TQI registration, the Respondent could make an offer of permanent employment to an individual but could not confirm their employment until they had obtained TQI registration;



• she would not have written her letter of 3 September 2015 to Ms Dayhew if she had the view which the Respondent now holds about Ms Dayhew’s employment status as at that date; and



• she accepted that if Ms Dayhew was not an employee and was not covered by the Agreement as of 1 April 2015 there was no authority for her to act as she did on 3 September 2015.

Ms Brennan’s evidence

[18] Ms Brennan attested, inter alia, that:

• it was not the role of the Appeal Panel to look into whether the Agreement actually applied to Ms Dayhew;



• the Appeal Panel was advised by ACT Shared Services that the appeal had been lodged and that it should be looked at under the Agreement, which is what the Appeal Panel did; and



• she did not have any doubt that the process undertaken by the Appeal Panel was legally sound.

Consideration of the issues

[19] In essence there are two questions which the Commission needs to determine. First, whether Ms Dayhew was an employee at the time she made her application and, second, whether Ms Dayhew had standing to bring her application. I turn now to deal with each of those questions.

Was Ms Dayhew an employee at the time she made her application?

[20] An analysis of the material before the Commission indicates that:

• Ms Dayhew was employed by the Respondent on a series of fixed term contracts, the most recent of which ended on 26 January 2015;



• Ms Dayhew’s TQI registration lapsed on 31 March 2015;



• Mr Whitton’s understood that Ms Dayhew was not an employee of the Respondent as of 1 April 2015;



• based on Ms McAlister’s evidence, once Ms Dayhew’s TQI registration lapsed she would not have been able to express her availability for casual employment in the Respondent’s staffing database, though she would have remained eligible for either fixed term or continuing employment.

[21] The above analysis supports a finding that as of 1 April 2015 Ms Dayhew was no longer an employee of the Respondent, though she remained eligible for either fixed term or continuing employment. As Ms Dayhew’s application was made on 27 January 2016, Ms Dayhew was not an employee of the Respondent at the time she made her application.

[22] As previously noted, Ms Dayhew in her submissions relied upon the Full Bench decision in McDermott. That matter concerned whether or not casual employees were eligible to participate in a vote to approve an enterprise agreement. The Full Bench in McDermott determined that “the casual employees were employed at the time, they were not in a cohort of “likely to be engaged” or “usually employed.” It was legitimate and necessary for them to be included in the group of employees asked to approve the Agreement.” 10 In other words, the circumstances in McDermott differ from those in this case in that the casual employees in that case were employed at the time of the vote on the agreement whereas in this case Ms Dayhew was not employed by the Respondent at the time she lodged her application, or for that matter at the time she was issued with the written warning or when she appealed the decision to issue that warning.

[23] I turn now to consider the second question, i.e. did Ms Dayhew have standing to bring her application?

Did Ms Dayhew have standing to bring her application?

[24] The Full Bench in ING considered the issue of whether an employee who had initiated a dispute under the relevant agreement’s dispute settlement process while still employed was able to apply to the Australian Industrial Relations Commission, as it then was, to determine the dispute after his employment had been terminated by his employer. The majority in ING stated as follows:

“[53] It may be that a former employee cannot initiate a dispute under the Clause after his or her employment has ceased. The notion of an employee raising the matter with the immediate manager or supervisor in the first instance tells against the existence of jurisdiction in such a case…

[58] In our view, the dispute settlement process should be viewed as a single process agreed by the parties to resolve disputes, rather than a series of separate rights and obligations which should be viewed conjunctively. That being so, an employee who had commenced to deal with a grievance or dispute while employed is not precluded, in our view, from continuing to progress that matter if it remains unresolved, notwithstanding that in the interim period they may have ceased to be employed by the employer.” (Underlining added)

[25] In this case Ms Dayhew’s application was brought pursuant to clause J7 of the Agreement which empowers the Commission to resolve the matter in accordance with the powers and functions ascribed to the Commission by the parties and set out in clause G2 – Dispute avoidance/settlement procedures of the Agreement. As noted above, Ms Dayhew contended that each and every clause of the Agreement specifically empowered the next stage of the process.

[26] To that end, drawing on the decision in ING, the Commission needs to consider whether clause J7 of the Agreement should be viewed as part of a single process or, alternatively, as one of a series of separate rights and obligations. An examination of the Agreement’s provisions shows that:

• clause H10.1 of the Agreement provides that “An employee has the right under Section J to appeal …”;



• clause H10.3 provides that “The appeal procedures under Section H …” ;



• clause J1.1 provides that “This section sets out an appeal mechanism for an employee where the employee is not satisfied with the outcome of decisions described in the following clause”;



• clause J1.2 provides that:

“This appeal mechanism will apply to:

(a) decisions to take discipline action under Section H of this Agreement …
(c) decisions taken in relation to an employee’s eligibility for benefits under clauses K5, K6 and the amount of such benefits, the amount payable by way of income maintenance under clause K9, and the giving of a notice of involuntary redundancy or notice of reduction in classification under clauses K7 and K8;
(d) any other decision that is subject to appeal under the PSM Act.” and(a) decisions to take discipline action under Section H of this Agreement …”; and

• clause J7.1 provides that “The employee or the employee’s union or other representative may seek a review by the FWA of a decision of the head of service under subclause J5.4 …”

[27] The fact that the appeal mechanism is set out in another section of the Agreement, i.e. Section J, points to the appeal mechansim being separate from the process set out in Section H – Workplace behaviours of the Agreement “… for managing workplace behaviours, including the management of cases of satisfactory work performance and misconduct.” 11

[28] That view is reinforced by:

● the reference in clause H10.3 to “appeal procedures”;
● the reference to “appeal mechanism” in clauses J1.1 and J1.2;
● the decisions to be reviewed under the appeal mechanism provided for in Section J of the Agreement extending beyond decisions made under Section H of the Agreement; and
● the decisions which the Commission may review under clause J7.1 not being decisions under Section H of the Agreement but rather decisions made under either clause J5.4 or J5.7 of the Agreement.

[29] While I acknowledge clause H10 of the Agreement references the right of an employee under Section J of the Agreement to appeal any decision under clauses H5 or H7 of the Agreement, that of itself does not make it part of a single process, particularly as the appeal mechanism is not limited to decisions made under Section H of the Agreement.

[30] The above analysis does not support a finding that the appeal mechanism in Section J of the Agreement is, drawing on the language in ING, part of a single process. To the contrary, it points to the appeal mechanism being a separate right under the Agreement.

[31] As can be seen from the terms of Section J – Appeal mechanism of the Agreement which is set out at paragraph [7] above, it provides an appeal mechanism “for an employee” (see underlined text). In circumstances where, as previously stated, the material before the Commission supports a finding that from 1 April 2015 Ms Dayhew was no longer an employee of the Respondent, given the terms of clause J7.1 of the Agreement Ms Dayhew did not have standing to bring her application as at the time she made her application she was not an employee as required by clause J7.1 of the Agreement. This in turn supports a finding that the Commission does not have jurisdiction to deal with Ms Dayhew’s application.

[32] As an aside, I would observe that my decision raises obvious questions about the validity of the various actions taken by both the Respondent and Ms Dayhew after 1 April 2015 when her employment with the Respondent ceased. While I express no view on that issue, I note both Mr Whitton’s and Ms McAlister’s evidence in this regard.

[33] Finally, while Ms Dayhew did not contend that she relied on clause G2 – Dispute avoidance/settlement procedures of the Agreement as the basis of her application, I would nevertheless observe that there is no material before the Commission indicating that at any stage in this matter did Ms Dayhew seek to utilise the processes set out in clause G2 to resolve her dispute with the Respondent.

Conclusion

[34] For all the above reasons, I have found that as Ms Dayhew was not an employee of the Respondent at the time she lodged her application the Commission does not have jurisdiction to deal with her application. Ms Dayhew’s application is therefore incompetent and will be dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

D. Wedgwood for the Applicant.

H. Sexton for the Respondent.

Hearing details:

2016.

Canberra:

June 6

Melbourne-Canberra (video hearing):

July 26

 1   AE893310

 2   Form F10 – Application for the Commission to Deal with a Dispute in Accordance with a Dispute Settlement Procedure at Item 2.1

 3   Ibid at Attachment 4

 4   Transcript at PN555

 5 (2016) 255 IR 146

 6   [2015] FWC 4112 at [24]

 7   [2015] FWC 1138 at [46]

 8 (2006) 158 IR 239 at [53]

 9   Transcript at PN521

 10 (2016) 255 IR 146 at [38]

 11   Clause H1.3 of the Agreement

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