Grant Brewer v AR

[2020] FWC 423

[2020] FWC 423

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Grant Brewer
v
AR
(C2019/583)

DEPUTY PRESIDENT KOVACIC CANBERRA, 31 JANUARY 2020

Application to deal with a dispute for review of decision in accordance with the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013-2017 – determined that there is no basis to disturb the decision of the delegate of the Head of Service.

[1] On 25 January 2019 Mr Grant Brewer (the Applicant) made an application under s.739 of the Fair Work Act 2009 (the Act) in respect of a dispute arising under the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013-2017 (the Agreement) 1. Mr Brewer seeks a review under clause J6 of the Agreement of a disciplinary sanction imposed on him on arising from an incident that occurred at the Bimberi Youth Centre in May 2016. The disciplinary sanction saw Mr Brewer demoted from his position of Unit Manager to that of a Youth Worker 2.4, entailing a reduction in remuneration of some $20,000 per annum. In terms of outcome, Mr Brewer seeks a finding that the allegation of misconduct against him is not proven and that he be restored to his former classification level and receive backpay for the period of his demotion.

[2] On 22 May 2019 the Fair Work Commission (the Commission) issued a Confidentiality Order 2 made pursuant to ss.593 and 594 of the Act which provided inter alia that the Respondent’s identity would be anonymised. Consistent with that Order, the Respondent is cited as AR in this decision.

[3] The application was heard on 23 May 2019. At the hearing, Mr Jamie Ronald of Counsel appeared with permission for Mr Brewer, while Mr James Macken of Counsel appeared with permission for the Respondent.

[4] For the reasons outlined below, I have concluded that there is no basis for the Commission to disturb Dr Collis’ decision to uphold the finding of misconduct against Mr Brewer and the sanction imposed on him.

Background

[5] Mr Brewer was employed by the Respondent as a Unit Manager at the Bimberi Youth Justice Centre (Bimberi) in the ACT. Mr Brewer commenced working at Bimberi in about 2007. In 2016 Mr Brewer was the subject of a disciplinary process following an incident that occurred on 6 May 2016. By way of background, on 18 May 2016 Mr Brewer was notified by way of letter that an allegation of misconduct had been made against him and that it had been determined that the matter was serious enough to warrant a formal investigation. The alleged misconduct was set out as follows:

“•  On 6 May 2016, whilst completing your duties as a Unit Manager at the Bimberi Youth Justice Centre, you acted inappropriately when Mr John Barrett [sic] verbally notified you of an additional ‘Use of Force’ involving Youth Worker … and Young Person … you replied using words to the effect of “good, I hope he belted him”.

•  On 6 May 2016, whilst completing your duties as a Unit Manager at the Bimberi Youth Justice Centre, you acted inappropriately when you spoke to Young Person…in an aggressive manner using words to the effect of “sit down, don’t f……g talk to me and don’t ask questions”.

•  On 6 May 2016, whilst completing your duties as a Unit Manager at the Bimberi Youth Justice Centre, you acted inappropriate [sic] when you failed to report the second Use of Force incident involving Youth Worker … and Young Person … when Young Person … was being escorted to Coree.” 3

[6] The investigation into the allegations was finalised on 28 October 2016 and concluded that each of the allegations had been made out. The investigation report went on to state:

“Further, QMS [the entity engaged to undertake the investigation] finds that the evidence of inappropriate conduct is sufficient for a properly authorised delegate to formally determine that Mr Brewer’s actions and omissions represent misconduct under the provisions of the ACT Public Sector Support Services Enterprise Agreement 2013-2017.” 4

[7] On 3 March 2017 Ms Bernadette Mitcherson, the Delegate of the Head of Service, wrote to Mr Brewer notifying him of her decision and proposed disciplinary action which was the termination of his employment. 5 Mr Brewer was provided the opportunity to provide a written response, which he did on 6 April 2017.

[8] On 13 July 2017 Ms Mitcherson wrote to Mr Brewer outlining revised proposed disciplinary action. The letter read as follows:

“I refer to previous correspondence on your behalf from your legal representatives concerning my decision that you are guilty of misconduct and that your employment should be terminated.

Having regard to the representations made on your behalf, I have decided to withdraw and revoke that decision.

However, based on the factual material currently available to me, I am of the view, on a preliminary basis, that you were guilty of misconduct on and after 6 May 2016, and that you should be demoted because of that conduct from the classification of Unit Manager (UM) to the lower classification of Youth Worker (YW).

The instance of misconduct to which I refer is your failure to record or report an oral report made to you by Team Leader (TL) Barratt on 6 May 2016 that he had witnessed an assault by YW… on a young person (YP) … then a detainee at Bimberi.

For purposes of Section H of the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013-2017, I would identify the misconduct as failing to exercise reasonable care in your duties contrary to s9(a) of the Public Sector Management Act (PSM Act), and/or failing to act with probity contrary to s9(c) of the PSM Act, and/or failing to report to an appropriate authority a possible instance of maladministration contrary to s9(q)(ii) of the PSM Act.

…

I understand that you have been provided with a signed copy of the investigation report, which includes written reports of the witnesses which I have used to determine what I presently consider to be the material facts.

Before I make a decision that you are guilty of misconduct as above, and that you should be demoted as a result, I wish to offer you an opportunity to make submissions to me, both as to whether you are guilty of misconduct in the above instance, and as to the appropriate sanction if any for that misconduct.

Your submission should be in writing, and I should prefer to have it within 4 weeks of the date of this letter …” 6

[9] Mr Brewer’s legal representative responded to that letter on 16 August 2017. 7 Among other things the response stated:

“2. ... In summary, I submit that your findings are flawed and that they cannot be sustained. I submit that even if your findings are sustained, the proposed demotion is excessive and should be downgraded.

...

Conclusion

41. As set out above, this process is procedurally unfair and significantly flawed. There has been significant delay in progressing this matter. In addition, you have raised new allegations more than a year after the subject events. This is not procedurally fair. This process should be discontinued. Should you not discontinue the process, Mr Brewer reserves his legal rights.

42. In any event, you do not have appropriate evidentiary grounds to be reasonably satisfied that the allegations against Mr Brewer are made out.

43. Accordingly, even if you do proceed with this process in spite of its manifest flaws, you should make a finding that each of the 3 allegations is not made out. Mr Brewer’s suspension of employment should be ended, and no penalty or disciplinary action imposed.

44. In the alternative, if in spite of these submissions, you do find that these allegations are made out, you should downgrade the proposed sanction to a formal reprimand, counselling and training.

45. If, in spite of the manifest inadequacy of the evidence against Mr Brewer, you do find that the allegations are made out, we reserve Mr Brewer’s right to make application against the decision.” 8

[10] On 11 October 2017 Ms Mitcherson wrote to Mr Brewer care of his legal representative in the following terms:

“Final Decision and Notice of Disciplinary Action

I refer to the letter of 16 August 2017, sent on your behalf, in response to the proposed disciplinary action set out in my previous correspondence of 13 July 2017.

For the reasons of delay and the re-statement of the charges and reasons, you suggest that I decide to discontinue the disciplinary process. I do not believe that it is appropriate to do so.

…

… The re-statement of the charges and reasons was provided to you on 13 July 2017 after a period of time during which the additional representations, submitted on your behalf, on 6 April 2017 were considered. The explanation for the re-statement was given in my letter of 13 July 2017, that is, having regard to representations it seemed to me appropriate to withdraw the original decision and to provide you with a further opportunity to respond, given that it appeared to me there was evidence of misconduct. Also, I decided to propose a lesser penalty of demotion instead of termination.

These circumstances do not, in my view, provide occasion for me simply to discontinue the matter … unless I formed the view that the allegations could not be established. However, I believe that they are established.

…

It remains my view that it is wholly unacceptable in the ACT Public Service for a person in a management position, even on one occasion, to fail to act promptly on a report of serious misconduct – in this case a physical assault on a detainee. For that reason, I have decided in my 13 July 2017 reasons that you should be removed from the position we have management responsibilities. As noted in those reasons, there are also two previous records of your misconduct. Of course it would be open to you in the future to seek and regain promotion to a more senior position. But in the meantime, for the above reasons, I do not consider that a mere reprimand or counselling would be commensurate with the form of misconduct in this matter.

I trust that the above indicates to you that I have carefully considered the representations submitted on your behalf, but that I do not consider that my decision should be changed.

Disciplinary Action

You will be permanently reduced from your classification of Unit Manager to Youth Worker 2.4 from the date of this letter.

Right of Appeal

Section J of the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013-2017 (Attachment B) provide you information on your right of appeal. You have the right to appeal decisions to take disciplinary action under subsection H10.1 of the Enterprise Agreement, except the decision to terminate your employment.” 9

[11] Mr Brewer subsequently initiated an appeal under Section J of the Agreement.

[12] The Appeal Panel report dated 21 November 2018 included the following:

“Allegation 1

“On 6 May 2016, whilst completing your duties as a Unit Manager at the Bimberi Youth Justice Centre, you acted inappropriately when Mr John Barratt verbally notified you of an additional ‘Use of Force’ involving Youth Worker … and Young Person … you replied using words to the effect of “good, I hope he belted him”.

…

7.24. In any event, the panel considers that the incident on the Oval to which Mr Brewer was the first to attend, was a highly charged and stressful occurrence. This will be discussed further below. Suffice to say that in the aftermath of such an event, it did not surprise the panel that Mr Brewer may have spoken rashly and perhaps not recollect what he had said to Mr Barratt.

…

Allegation 3

“On 6 May 2016, whilst completing your duties as a Unit Manager at the Bimberi Youth Justice Centre, you acted inappropriately when you failed to report the second Use of Force incident involving Youth Worker … and Young Person …, when Young Person … was being escorted to Coree.”

…

7.33. Notwithstanding the above, the panel carefully considered whether it was satisfied on the balance of probabilities that Mr Barratt reported … assault on YB [sic] … to Mr Brewer. It is satisfied that he did and consider the risks for Mr Barratt in doing so were significant given he was reporting a colleague who it appears many other employees had some sympathy for, given the YPs’ attack on him on the oval. The panel considers, on the balance of probabilities, that this risk was greater than any possible benefit he may have achieved in fabricating this reporting to deflect from his own actions on 6 May and possibly proceeding this date.

7.34. Hence, the panel accepts that Mr Brewer failed to report the incident involving YW … Significantly, however, the allegation also requires consideration of whether the appellant inappropriately failed to make this report. In discussing this issue, the panel agreed that the totality of the events on 6 May should be taken into account. The panel considers that it is equally probable that after the code black incident Mr Brewer failed to recollect Mr Barrett’s advice in the aftermath of the events on the oval, resulting in three colleagues being hospitalised, whilst he was completing the incident report at the end of his shift. Some of the witness statements captured in some detail the intense activity in the aftermath of the incident on the oval.

…

7.37. The panel material included a document drafted by a clinical psychologist, Ms Carmel O’Sullivan, called “Trauma at work.” Ms O’Sullivan details that following a traumatic event, “thinking” can be confused, concentration may be poor in memory, patchy. The panel considers that it is a credible explanation that Mr Brewer did not recollect Mr Barratt’s report when he was completing the incident document. It also notes that after finishing on 6 May the appellant began leave for a couple of weeks for purposes which included supporting his mother interstate while she underwent treatment for leukaemia.

7.38. In summary, on the balance of probabilities, the panel does not find this allegation established.

8. Sanction

…

8.6. As the panel considers on the balance of probabilities that it is likely due to the traumatic nature of that event and the myriad of actions happening straight after the attack on the oval, that Mr Brewer failed to recall Mr Barratt’s advice, it views the sanction imposed was disproportionate to the misconduct.

8.7. Given this, the panel considers that the appellant’s misconduct is limited to the admission he made that he spoke inappropriately and aggressively to YP … The panel was concerned by the harshness of this language even allowing for the stressful event earlier in the afternoon.

8.8. The panel was given some material on the misconduct findings in 2010 and 2011. It notes that they raise similar issues to the allegation the appellant admitted. However, it considers that little weight should be given to these previous findings given their age.

8.9. As such the panel considers that an appropriate sanction in the circumstances is the appellant’s demotion to the highest current pay point of the Team Leader classification, rather than the more punitive sanction of demotion to Youth Worker 2.4.

8.10. In addition, given this decision and the significant length of time since the original demotion took effect, the panel recommends that back-payment be made to the appellant equivalent to the difference between the amount he has earned over the period since his demotion and the amount he would have earned over the period had the original decision placed him at the highest pay-point of the Team Leader Classification.

9. Recommendations

9.1. The panel does not consider the decision of the head of service was appropriate in all the circumstances. It recommends there be a misconduct finding that the appellant spoke inappropriately to YP … in an aggressive manner. It also recommends that the sanction flowing from this conduct is demotion to a Team Leader, not Youth Worker; and that a payment be made to the appellant in the manner set out above.” 10 (Underlining added)

[13] The delegate of the Head of Service appointed to consider the Appeal Panel’s report in accordance with clause J4.12 of the Agreement was Dr Mark Collis. On 21 December 2018 Dr Collis wrote to Mr Brewer setting out his decision in respect of the Appeal Panel’s Report. In short, Dr Collis did not accept the Appeal Panel’s recommendations and determined to uphold the original sanction decision. Dr Collis’ letter read as follows:

“I have considered the recommendations contained within the report prepared by the Chairperson of the Appeal Panel … of 21 November 2018, in accordance with my responsibilities contained with [sic] the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013-2017 (Enterprise Agreement).

It is my decision that the original findings of misconduct and the sanction imposed on you, outlined in Ms Bernadette Mitcherson’s letter of 11 October 2017, are to remain. In making this decision I acknowledge the recommendation contained within the appeal panel’s report, and have formed the view that differs to some of their conclusions.

I agree with the panel and their conclusions that you were afforded procedural fairness in accordance with the Enterprise Agreement. Furthermore, despite your submissions to the contrary, I agree with the panel’s view of Team Leader Barratt’s evidence concerning his report to you as accurate and I have no other reason to doubt the account of Team Leader Barratt. Therefore, I have determined that Team Leader Barratt did make an oral report of Youth Worker … assault on Young Person …

Notwithstanding the above, I do not accept the recommendation to reduce the sanction, and I consider that the decision of the delegate of the head of service dated 11 October 2017 in all circumstances was appropriate. In considering this I note that the panel has relied on allegations which differ from those presented in Ms Mitcherson’s letter dated 13 July 2017. However, I accept the recommendation was made considering the evidence.

The panel, and I agree, was satisfied that Team Leader Barratt reported to you the assault of Youth Worker … on Young Person … I am also satisfied, based on the evidence before me, that you failed to record or report this occurrence.

In your role as a Unit Manager, within the Bimberi Youth Justice Centre, your core responsibilities the protection of young people within detention. A report by an officer that another officer has attacked and punched a restrained Young Person in the head is an extraordinary occurrence. I am not satisfied that an officer who is as experienced and trained in their core responsibilities as you are would forget this information in such a short time frame, as claimed by you. Furthermore your response to Team Leader Barratt, as reported by him, indicates that you heard and understood the information he orally reported to you. It also indicates that you condoned Youth Worker … action, and provides an explanation why you failed to record or report what you had been told.

The failure to report an issue of such significance, being an assault by a Youth Worker on a detainee, fundamentally undermines the Directorate’s confidence in you to occupy a leadership role. An assault by a Youth Worker against a Young Person is amongst the most serious behaviour that can occur within the centre. I have determined that the behaviour you exhibited is misconduct and that the Directorate has lost trust in you being able to discharge the duties relied upon in a position with responsibility for staff.

I have considered the panel’s recommendation that your sanction was disproportionate to the misconduct. In justifying this recommendation panel has relied heavily on the preceding events on the oval and in some way these events have caused you to forget the report made to you by Team Leader Barratt.

The panel’s recommendations were also based upon its conclusions with respect to the three allegations that were put to you in Ms Mitcherson’s letter dated 3 March 2017, rather than those that were put to you in Ms Mitcherson’s letter dated 13 July 2017. Notably, the initial allegations allege that your behaviour was inappropriate, rather than identifying the precise misconduct arising out of your failure to make a record or report Team Leader Barratt’s oral report (that is a failure to exercise reasonable care and skill and/or failure to report possible maladministration). The panel’s conclusions about the gravity of the sanctions relied on consideration of the appropriateness of your failure to report rather than consideration of whether your conduct constituted misconduct, being a failure to exercise reasonable care and skill.

Based on the information before me, including the CCTV footage, I acknowledge that the events on the oval required you to restrain Young People, which is something you are experienced with, trained and exercise to manage. Your involvement in the use of force to de-escalate the situation and the restraining and escorting of young people back to the relevant unit is not uncommon practice in a detention centre, however I acknowledge it could have been a stressful experience for you. I am not convinced, given the level of your training and the scale of the matter, that your involvement in a use of force incident would have been experienced as a ‘traumatic event’, nor do I accept that your involvement in the events on the oval and the post-management of that incident would cause you to have specific memory loss in relation to Team Leader Barratt’s report.

I have not sighted any medical evidence that your memory or thinking was impaired. Furthermore, as a Unit Manager is expected that you have the skills and expertise to appropriately manage post-use of force incident events accordingly.

In addition, Team Leader Barratt’s report to you was made after the oval incident, when the detainees had been returned to and secured in the units. I consider it most unlikely that, a short time later when you prepared your own incident report, you would have forgotten what Team Leader Barratt had said to you.

In closing I have determined that the three allegations put to you in Ms Mitcherson’s letter, dated 13 July 2017, remain proven and I am satisfied this amounts to misconduct. In addition, for the reasons set out above, I have determined that it was in all circumstances appropriate for the delegate to reduce your classification to the nonmanagerial position of Youth Worker and, accordingly, I affirm the imposition of that sanction.” 11

[14] As previously mentioned, Mr Brewer filed his application with the Commission on 25 January 2019.

The Applicant’s case

[15] In his written submissions Mr Brewer provided a summary of the background of the matter, the investigation and Dr Collis’ decision. Key aspects of Mr Brewer’s submissions included that:

the Appeal Panel considered allegations which had been abandoned by the Respondent;

•  it was unreasonable and improper for Dr Collis to accept the Appeal Panel’s misunderstanding in respect of the allegations involving Mr Brewer;

•  Dr Collis unreasonably rejected the effect of the trauma of the events of 6 May 2016 on him, adding that this was at odds with the evidence regarding those events and had no rational justification;

•  he had from the outset both denied that Mr Barratt had advised him on 6 May 2016 that there had been an attempt by a colleague to punch a detainee and maintained that if such a report had been made he would have reported it, drawing on the record of his interview with the investigator to support this aspect of his submissions;

•  there was no evidence that Mr Barratt told him that a colleague had attempted to “punch” a restrained young person;

•  as such, there was no evidence to support the statement in Dr Collis’ letter of 21 December 2018 that “a report by an officer that another officer has attacked and punched a restrained Young Person in the head is an extraordinary occurrence”;

•  it was a reasonable proposition to consider that he understood the report being made by Mr Barratt was merely a reference to the circumstances on the oval;

•  Dr Collis’ rejection of the Appeal Panel’s recommendations had no evidentiary basis and was therefore unjust and unreasonable; and

•  the sanction imposed was completely disproportionate to the findings made.

[16] Mr Brewer further submitted in performing its review function the Commission must have regard to all the evidence that was before the decision maker and consider whether their decision was unjust or unreasonable. Mr Brewer further submitted that the terms ‘unjust’ and ‘unreasonable’ should be applied according to their ordinary meaning and in a manner consistent with other matters considered by the Commission such as unfair dismissal applications. To that end, Mr Brewer posited that the Commission must consider matters such as those described by the High Court in Byrne v Australian Airlines Ltd (Byrne) 12 and that in doing so the Commission must consider whether he was guilty of the misconduct or whether the matters was decided upon inferences which could not reasonably be drawn from the material before Dr Collis. Mr Brewer also contended that this approach did not inter alia offend the principle in Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales (XPT Case)13, noting that that principle must be understood in the context of the Agreement in which it had been agreed to confer upon the Commission a broad power to conduct a review and make a binding determination.

[17] Mr Brewer sought a determination that he did not engage in misconduct and that he be reinstated to the position of Unit Manager with back pay from the date of his demotion (i.e. 11 October 2017). In his written reply submissions Mr Brewer stated that he would accept as an outcome a decision which set aside Dr Collis’ decision of 21 December 2019 and replaced it with a binding decision in the same terms as the Appeal Panel’s recommendations (see paragraph [12] above).

[18] At the hearing Mr Brewer took the Commission forensically through a number of the documents contained in the Evidence Book which had been prepared by the Respondent to highlight a number of issues, including that he had consistently refuted that Mr Barratt had spoken to him about a colleague assaulting a Young Person, that he maintained that had Mr Barratt reported this to him he would have reported the matter, the environment was very tense after the incident of 6 May 2016 and had a significant impact on those involved and the language consistently used by Mr Barrett referred to a young person having been assaulted. Drawing on the material contained in the Evidence Book, Mr Brewer submitted among other things that:

•  there was no evidence pointing to Mr Barratt advising him that a colleague had “punched” a Young Person;

•  based on the record of Mr Barratt’s interview with Investigator the way he brought the assault to the attention of management in circumstances where he had not heard that the assault had been reported was “odd” 14;

•  the absence of notes from Mr Barratt’s second interview 15 meant that the decision maker (Ms Mitcherson) had no evidence of what was said in the interview other than a broad description;

•  his responses in the interview with the investigator were not indicative of a person unaware of their managerial responsibilities;

•  it was unclear why Mr Barrett had not also reported the assault to the other Unit Manager involved in the incident of 6 May 2016, i.e. Mr Terlich;

•  no inference should be drawn from what Ms Key said to the investigator given the state of her evidence overall;

•  Dr Collis’ finding was not available to him based on the material before him, adding that Dr Collis had drawn on inferences which resulted in him making assumptions not supported by facts;

•  there was no justification for Dr Collis’ decision to remove him from any managerial responsibility; and

•  Dr Collis had diminished the effect of the events of the day on him, adding that everyone involved in the incident of 6 May 2016 suffered from memory loss in their reporting of the incident.

[19] Mr Brewer also disputed aspects of the Respondent’s oral submissions, contending that the two themes in the Respondent’s submissions were that for his application to succeed the Commission would have to find that Mr Barratt lied and that he and other employees had colluded to protect their colleague who had assaulted the Young Person. In that regard, Mr Brewer submitted that he was not contending that Mr Barratt had engaged in some set up to protect himself and that his run through the Evidence Book was intended to highlight the differences in the various accounts of those involved in the incident of 6 May 2016. In addition, Mr Brewer also submitted that:

•  revising his demotion to the level of Team Leader would address the Respondent’s concerns;

•  there was no corroboration at all of Mr Barratt’s report to him regarding the assault;

•  the trauma he endured on 6 May 2016 was replete in the material in the Evidence Book which the Commission had been taken to;

•  the allegation against him was that he had failed to report the assault by his colleague, however that was not the kind of assault which he was being punished for (i.e. that another officer had “attacked and punched a restrained Young Person”); and

•  backpay ought to be awarded in this case.

[20] Beyond that, Mr Brewer relied on his written submissions.

The Respondent’s case

[21] In short, the Respondent submitted that Dr Collis’ decision should not be disturbed and that Mr Brewer’s application should be dismissed, adding inter alia that Dr Collis’ decision drew on the substantial body of evidence, submissions and deliberations generated through the processes under the Agreement, critically reviewed that material, made conclusions that were justified on the balance of probability and imposed a sanction that was proportionate to the gravity of the conduct.

[22] In its written submissions the Respondent, as did Mr Brewer, provided an overview of the events leading up to the matter coming before the Commission. Among other things, the Respondent submitted that the Appeal Panel in considering whether Mr Brewer had “inappropriately” failed to report the incident involving a colleague assaulting a detainee had misapprehended the terms of the revised allegations as set out in Ms Mitcherson’s letter of 13 July 2017 (see paragraph [8] above). The Respondent further submitted in respect of the Appeal Panel’s report that while the Panel did recommend that a sanction be imposed, that the sanction related to an allegation that was not pursued after the letter of 13 July 2017.

[23] As to Dr Collis’ decision, the Respondent submitted among other things that:

•  his reasoning was sound;

•  his decision rightly placed central importance on the protection of young people detained at the Bimberi Youth Justice Centre;

•  he was entitled to accept the Appeal Panel’s finding that Mr Barratt had reported the alleged assault by a colleague on a detainee to Mr Brewer;

•  he was also entitled to take the view that Mr Brewer did not merely forget about that report;

•  there was nothing unlawful or unreasonable in Dr Collis’ decision to reduce Mr Brewer’s classification, positing that it was the correct decision; and

•  there was no occasion for the Commission to impose a different outcome.

[24] The Respondent in its written submissions referred to the following authorities – Christina Towns v Community Services Directorate ACT Government (Towns) 16, Ms Pamela Boxsell v ACT Government T/A ACT Government – Health Directorate (Boxsell)17, the XPT Case and Lend Lease Project Management and Construction (Australia) Pty Limited v Construction, Forestry, Mining and Energy Union (Lend Lease)18.

[25] In its oral submissions the Respondent elaborated on its written submissions, taking the Commission through both the Appeal Panel report and Dr Collis’ letter of 21 December 2018 in some detail. Key aspects of the Respondent’s submissions included that:

•  Mr Barratt’s oral report to Mr Brewer was necessarily brief because of Mr Brewer’s response (i.e. “Good, I hope he belted him”);

•  the Appeal Panel concluded at paragraph 7.33 of its report that it was satisfied on the balance of probabilities that Mr Barratt had reported the assault to Mr Brewer (see underlined text at paragraph [12] above);

•  it was hard to accept and highly implausible that Mr Brewer would forget Mr Barratt’s report, adding that it was hard to believe that Mr Brewer had forgot the most important thing that had happened that day;

•  the Appeal Panel accepted that Mr Brewer had responded to Mr Barratt as outlined above (see paragraph 7.24 of the Appeal Panel’s report at paragraph [12] above);

•  Dr Collis acknowledged that the events of 6 May 2016 were stressful but was not persuaded that they would have caused a memory loss by Mr Brewer, adding that Dr Collis’ reasoning in this regard was balanced, sound and fair;

•  Ms Key’s evidence was unreliable;

•  Mr Barratt’s report was the most detailed report of the incident of 6 May 2016 and also the ‘hardest’ to write because it required him to drop his colleague “seriously in it” as no one else would;

•  Mr Brewer was also in a very difficult position but his obligation as Unit Manager was to report the assault and he did not do that;

•  Dr Collis’ decision was the correct and preferable decision both from a managerial and disciplinary perspective;

•  drawing on the decision in the XPT Case, Dr Collis’ decision was not unlawful or unreasonable;

•  Mr Brewer’s application should be dismissed;

•  were the Commission to overturn Dr Collis’ decision it would wish to be heard on the issue of backpay.

[26] In response to a question from the Commission regarding the distinction between Unit Manager and Team Leader roles in terms of their managerial responsibilities, the Respondent advised that Team Leaders were supervisors who were able to give directions to Youth Workers, authorise searches and organise and allocate staffing as required (mainly at night when Unit Managers were not present). The Respondent further described Team Leader roles as highly responsible positions which involved issues of trust.

The Relevant Clauses of the Agreement

[27] 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.

H6 MISCONDUCT

…

What is Misconduct

H6.5 For the purposes of this Section, misconduct includes any of the following

a) the employee fails to meet the obligations set out in section 9 of the PSM Act (this includes bullying and harassment or discrimination);

b) …

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.

…

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;

e) …

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.

…

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.

…

J4.6 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.

…

J4.12 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

[28] Initially I would observe that the weight that can be attached to the Appeal Panel’s recommendations in this case is undermined by the fact those recommendations relate to allegations of misconduct not pressed by the Respondent. However, this does not mean that the Appeal Panel’s report should be disregarded in its entirety. This is because the Appeal Panel report considers the core findings which underpin both Ms Mitcherson’s and Dr Collis’ determinations that Mr Brewer was guilty of misconduct, i.e. that Mr Barrett had reported the assault by a Youth Worker on a Young Person to Mr Brewer and that Mr Brewer had failed to record and report that incident.

[29] The task of the Commission in respect of a review under clause J6 of the Agreement (which is a common provision in ACT public sector enterprise agreements) was described in Towns in the following terms:

“[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.” 19

[30] In his submissions Mr Brewer maintained that Mr Barratt had not told him of the assault by a Youth Worker on a Young Person and that had he been told he would have reported the incident. More particularly, Mr Brewer contended that Dr Collis’ finding was not available to him based on the material before him, that Dr Collis unreasonably rejected the effect of the trauma of the events of 6 May 2016 on him and that this was at odds with the evidence regarding those events and had no rational justification. However, in this case the material before Dr Collis included the Appeal Panel’s report which stated that the Panel was “satisfied” that Mr Barratt had reported the assault to Mr Brewer and “accepted” that Mr Brewer had failed to report the incident involving the Youth Worker (see the underlined text at paragraph’s 7.33 and 7.34 of the Appeal Panel’s report set out at paragraph [12] above). Dr Collis accepted the Appeal Panel’s conclusions in this regard. Dr Collis’ decision to do so in my view was reasonably open to him, particularly when regard is had to Mr Barratt’s detailed contemporaneous notes of the events of 6 May 2016.

[31] As to Mr Barratt’s contention that Dr Collis dismissed the trauma of the events of 6 May 2016, it is clear from Dr Collis’ letter of 21 December 2018 that he considered Mr Brewer’s contention in this regard. However, Dr Collis did not accept that contention having regard to Mr Brewer’s training and experience and the absence of medical evidence indicating that Mr Brewer’s memory or thinking was impaired. Dr Collis’ explanation for rejecting Mr Brewer’s contention is in my view cogently argued and difficult to fault. Beyond that, I note that Mr Brewer maintained that had he been advised of the incident he would have reported it. Implicit in that contention is an acceptance that the trauma of the incident of 6 May 2016 would not have precluded him reporting the incident.

[32] Based on the material before the Commission I am satisfied that Dr Collis’ decision to uphold the finding of misconduct against Mr Brewer was not only reasonably open to him but also appropriate having regard to the Appeal Panel report and the other material before him, particularly Mr Barratt’s detailed notes of 6 May 2016. Further, I do not accept Mr Brewer’s contention that Dr Collis had drawn on inferences which resulted in him making assumptions not supported by facts.

[33] As to the issue of sanction, Mr Brewer contended that the sanction imposed was completely disproportionate to the findings made and that there was no justification for Dr Collis’ decision to remove him from any managerial responsibility. On the other hand, the Respondent posited that there was nothing unlawful or unreasonable in Dr Collis’ decision to reduce Mr Brewer’s classification and that it was the correct decision. Mr Brewer’s obligation to report the incident is set out in the Children and Young People (Records and Reporting) Policy and Procedures 2015 (No.1) (the Policy)  20 a notifiable instrument made under s.143 of the Children and Young People Act 2008 (ACT) (the CYP Act). The Policy requires a Manager to notify the Director immediately of all Category 1 reportable incidents, with such incidents including “[s]erious misconduct by staff member”. The Policy defines a Manager as referring to “the Senior Manager of a detention place during normal business hours, or in the event this person is unavailable, the Deputy Senior Manager, or in the event this person is unavailable, the Operations Manager, or in the event this person is unavailable, a Unit Manager. Outside normal business hours, this refers to the On-call Manager.”21

[34] Other relevant considerations regarding Dr Collis’ sanction decision include that:

•  under s.356 of the CYP Act both Mr Brewer and Mr Barratt as a “mandated reporter” have a statutory obligation to make a report to the Director-General in circumstances where they believed on reasonable grounds that a child or young person had experienced or was experiencing “non-accidental physical injury”; 22

•  Mr Terlich, another Unit Manager involved in the incident of 6 May 2016, stated in his interview with the investigator that Mr Barratt was not under his direct supervision 23, which is a likely explanation as to why Mr Barratt reported the assault on the Young Person to Mr Brewer and not Mr Terlich; and

•  the sanction imposed on Mr Brewer would have had a significant financial impact given that it involved a reduction in remuneration in the order of $20,000 per annum.

[35] Mr Brewer’s failure to meet his obligations under the Policy is a significant failure particularly as he was an experienced Unit Manager. In those circumstances, the Respondent’s loss of trust in Mr Brewer being able to occupy a leadership role is not only understandable but also reasonable, particularly in circumstances where Mr Brewer’s response to Mr Barratt’s report (i.e. “Good, I hope he belted him”) implies that he condoned the assault. I note that the Appeal Panel was not surprised that Mr Brewer may have spoken rashly when Mr Barratt reported the incident to him. Beyond that, it is not unreasonable for the Respondent to expect higher standards of supervisory employees. 24

[36] At the hearing Mr Brewer contended that revising his demotion to the level of Team Leader would address the Respondent’s concerns regarding him given that any similar future incidents would be reported to a Unit Manager as opposed to him as a Team Leader. However, I note that the Bimberi Practice Guideline regarding Reportable incidents requires a Team Leader to among other things complete relevant reports and registers, print two copies of the incident report and forward one copy of the incident report to the Unit Manager. 25 As such, as a Team Leader Mr Brewer may still be required to report similar future incidents to a Unit Manager. In other words, revising the demotion to a Team Leader role would not entirely address the Respondent’s concerns regarding Mr Brewer. The above analysis does not support a finding that the sanction imposed in this case was unwarranted or that it should be revised.

[37] As previously mentioned, the Respondent in its submissions referred to the decisions in Towns, the XPT Case and Lend Lease. Those latter two 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.” 26 (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 Dr Collis’ decision to uphold the finding of misconduct against Mr Brewer and the sanction imposed on him. While I appreciate that the demotion would have had a significant financial impact on Mr Brewer, that impact needs to be seen against the significant dereliction of duty by Mr Brewer in this case. Accordingly, for the reasons outlined above I do not consider that Mr Brewer’s concerns regarding the decision are made out. I therefore do not consider that there is any basis for the Commission to disturb Dr Collis’ decision.

Conclusion

[39] In summary, for all the reasons set out above, I have concluded that there is no basis for the Commission to disturb Dr Collis’ decision to uphold the finding of misconduct against Mr Brewer and the sanction imposed on him.

Appearances:

J. Ronald of Counsel for the Applicant

J. Macken of Counsel for the Respondent

Hearing details:

2019

Canberra

May 23

Printed by authority of the Commonwealth Government Printer

<PR716211>

 1   AE408295

 2   PR708576

 3   Evidence Book at page 183

 4   Ibid at page 31

 5   Ibid at pages 215-236

 6   Ibid at pages 302-309

 7   Ibid at pages 310-314

 8   Ibid

 9   Ibid at pages 315-326

 10   Ibid at pages 1-20

 11   Ibid at pages 347-349

 12 (1995) 185 CLR 410

 13 (1984) 295 CAR 188

 14   Evidence Book at page 190 – last paragraph

 15   Ibid at page 7 – refer to paragraphs 2.32. and 2.33

 16   [2018] FWC 4271

 17   [2018] FWC 141

 18   [2015] FWCFB 1889

 19   Ibid at [23]

 20   Evidence Book at pages 332-345

 21   Ibid at page 335

 22   Ibid at pages 203-205

 23   Ibid at page 193

 24   Mr Michael Brambleby v Australian Postal Corporation T/A Australia Post[2014] FWCFB 9000 at [89]

 25   Evidence Book at pages 178-182

 26   [2015] FWCFB 1889