Grant Brewer v Australian Capital Territory T/A Act Government Community Services

[2018] FWC 3822

[2018] FWC 3822

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Grant Brewer
v
Australian Capital Territory T/A ACT Government Community Services
(C2018/184)

DEPUTY PRESIDENT KOVACIC CANBERRA, 28 JUNE 2018

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 – jurisdictional objection raised – determined that appeal against decision to take disciplinary action was made within time and that an Appeal Panel should therefore be convened in accordance with the Agreement – jurisdictional objection upheld in respect of the other remedies sought by the Applicant.

[1] On 11 January 2018 Mr Grant Brewer (the Applicant) made an application under s.739 of the Fair Work Act 2009 (the Act) in respect of a dispute in accordance with the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013-2017 1 (the Agreement). Specifically, Mr Brewer sought that findings of misconduct and a sanction of demotion to a lower classified position be set aside and that he be restored to his substantive classification with appropriate back pay.

[2] On 8 February 2018 the Australian Capital Territory T/A ACT Government Community Services (the Respondent) filed an application seeking to have Mr Brewer’s application dismissed on the basis that the Fair Work Commission (the Commission) did not have the jurisdiction to grant the relief sought by Mr Brewer.

[3] A conference convened by the Commission on 9 February 2018 failed to resolve the dispute with both Mr Brewer’s application and the Respondent’s jurisdictional objection listed for hearing on 1 May 2018.

[4] At the hearing, Mr Jamie Ronald of Counsel appeared with permission for the Applicant, while Mr James Macken of Counsel appeared with permission for the Respondent. Mr Brewer provided a witness statement 2 but was not required for cross-examination.

[5] For the reasons outlined below, I have concluded among other things that:

•  the appeal initiated on Mr Brewer’s behalf on 27 October 2017 was initiated within fourteen days of Mr Brewer being advised of the decision to take disciplinary action;

•  the Convenor of Appeal Panels (the Convenor) should therefore convene an Appeal Panel in accordance with clause J3.2 of the Agreement as soon as practicable to consider Mr Brewer’s appeal; and

•  Section J of the Agreement (as opposed to the Agreement’s dispute avoidance/settlement procedures) is the agreed mechanism for reviewing decisions to take disciplinary action.

Background

[6] 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 concerning an allegation that he had been informed by a co-worker that a Youth Worker at Bimberi had physically assaulted a young detainee on 6 May 2016 and that Mr Brewer had failed to act on, or report, the report.

[7] In his application, Mr Brewer stated that the investigation into the allegation did not conclude until 28 October 2016 and that on 3 March 2017 he received a letter notifying him of the misconduct decision and proposed disciplinary action. Mr Brewer further stated that as a result of submissions made on his behalf on 6 April 2017 the initial misconduct decision and proposed disciplinary action was withdrawn and revoked in a letter of 13 July 2017 from Ms Bernadette Mitcherson, the Respondent’s Deputy Director-General. That letter, which also outlined revised proposed disciplinary action, 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 … on 6 May 2016 that he had witnessed an assault by YW… on a young person … then a detainee at Bimberi.

…

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 four weeks of the date of this letter …” 3 (Underlining added)

[8] Mr Brewer’s legal representative responded to that letter on 16 August 2017 4. 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.

...

Your proposed sanction

33. You have proposed to downgrade Mr Brewer from the classification of Unit Manager to the classification of Youth Worker.

34. This sanction is disproportionate to the breach which Mr Brewer is accused of. It will mean a change in his annual wage of in excess of $20,000.00. This alteration will cause Mr Brewer and his family significant financial stress.

35. I submit that, if in spite of our submissions, you do find that the allegations against Mr Brewer are made out, then a more appropriate sanction would be formal reprimand, counselling and training.” 5

[9] 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.

…

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 representation 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.

Any appeal response should be addressed to:

The Convener of Appeal Panels

…” 6

[10] It is not disputed that the above letter was emailed to Mr Brewer’s legal representative, Mr Patrick Myrtle of Slater & Gordon, on 12 October 2017. The email read as follows:

“Dear Patrick

I have attached the final decision letters from the delegate to Messrs Brewer, …

Would you please discuss with your clients today and inform them I am available to speak to them.

Please advise me when you have had these discussions. Thank you for your assistance with this matter.” 7

[11] On 27 October 2017 Mr Brewer’s legal representative wrote to the Convener requesting that an Appeal Panel be convened in accordance with Section J of the Agreement 8. Specifically, the letter included the following:

“I am writing to request that an Appeal Panel be convened in accordance with section J of the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013-2017.

Appealed decision

The decision that I request be appealed is set out in the letter of Ms Bernadette Mitcherson ... dated 11 October 2017 ...

Reason for appeal

Mr Brewer appeals this decision on multiple grounds:

1. That the disciplinary process was not conducted with due process ...

2. In response to the letter of 13 July 2017, and the new proposed disciplinary action, Slater & Gordon made submissions by letter of 16 August 2017 about why the new proposed disciplinary action was not appropriate and should be set aside. Mr Brewer relies upon the contents of that letter, however there are specific criticisms of the decision in response to their letter which Mr Brewer requests that the Appeal is Panel consider: ...

3. The imposed demotion is excessive ...

Requested Outcome

Mr Brewer requests that the findings against him be set aside, that the proposed reduction in his classification be set aside, and that he be restored to his classification of Unit Manager, with appropriate back pay.

…

Relevant documents

To assist the panel in its deliberations, I enclose the following documents:

1. …

5. Letter from Ms Mitcherson to Mr Brewer dated 11 October 2017 (but received by email 12 October 2017).” 9

[12] The Convener’s response of 14 November 2017 stated among other things that:

“The application for appeal submitted on your behalf by Patrick Myrtle, Slater & Gordon Lawyers confirms you were notified of the final decision on 12 October 2017.

The eligibility provisions for appeal against disciplinary action is established in Section J – Appeal Mechanism of the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013-2017 (the Agreement).

An application for appeal must meet the requirements set out at clause J2 (J2.1) …

Clause J3.2 provides that where an application is received within the required timeframe, the Convener of Appeal Panels will set up an appeal panel. The agreement does not provide the Convener discretion to extend the timeframe in which an application for appeal can be received.

On the basis your application for appeal was not submitted within fourteen calendar days of being notified of the decision to take action, i.e. by close of business, 26 October 2017.

On this occasion, I am unable to convene an appeal panel in respect of your application ...” 10

[13] On 17 November 2017 Mr Brewer’s legal representative wrote to the Convener stating inter alia that:

“Your decision is in error. Please correct that error and convene the appeal panel.

While I received the emailed copy of the decision letter on 12 October 2017, I was unable to speak to Mr Brewer to convey the decision, or to email him the decision letter, until 13 October 2017. In that regard, please find enclosed email to Mr Brewer dated 13 October 2017.

Accordingly, Mr Brewer was notified on 13 October 2017, and the fourteen day period runs from that date. The application was therefore submitted within the fourteen days required.

Putting aside the above, I do not accept that you have no discretion to extend the time in which an application to convene an appeals panel may be received. The Enterprise Agreement does not impose any such restriction.” 11

[14] Also on that day, Mr Brewer’s legal representative wrote to Ms Mitcherson stating that the classification that she proposed to demote Mr Brewer to did not exist within the Agreement and that “Accordingly, your decision of 11 October 2017 was not properly made and does not have the capacity to be enforced. The effect of this is that no decision has yet been made with respect to the sanction to be applied to Mr Brewer. Accordingly, I request that you properly make a decision about the sanction to be applied in this matter.” 12

[15] Ms Mitcherson responded on 1 December 2017 rejecting the suggestion that her decision was invalid or that in law she had not made a decision as to the disciplinary sanction for Mr Brewer and expressing the view that Youth Worker 2 (Administrative Service Officer (ASO) Class 4) was a classification that did exist in the relevant agreement 13.

[16] Mr Brewer’s legal representative subsequently wrote to the Convener again on 5 December 2017 seeking to appeal Ms Mitcherson’s decisions of 11 October and 1 December 2017 14.

The Applicant’s case

[17] Mr Brewer submitted that pursuant to clause J2.1 of the Agreement the appeals sent on his behalf to the Convenor on 27 October and 5 December 2017 were made within time. More specifically, Mr Brewer submitted inter alia that:

•  as he did not receive notice of the decision set out in Ms Mitcherson’s letter of 11 October 2017 until 13 October 2017 the time for lodging an appeal did not expire until 27 October 2017;

•  notification to the employee should be the initiating factor for running of time;

•  the only valid decision in the letter of 11 October 2017 was the decision that misconduct had occurred;

•  there was not, and could not, have been a valid decision regarding sanction on that day as the Respondent had not complied with clauses H10.4 and H10.5 of the Agreement and the purported decision regarding reclassification was to a non-existent position;

•  the Respondent had failed to provide him with the required minimum fourteen days for submissions in relation to sanction;

•  Ms Mitcherson’s letter of 1 December 2017 did not cure the failure to comply with clauses H10.4 and H10.5 of the Agreement meaning that the letter constituted the final decision regarding sanction and therefore the appeal of 5 December 2017 was within time; and

•  clause H12.1 of the Agreement creates the right to numerous appeals, contending that there is a right of appeal from any decision to take disciplinary action or to apply a sanction.

[18] Mr Brewer submitted that should the Commission find that either of his appeals were within time that it should make a binding determination to that effect under clause G2.9 of the Agreement (i.e. in accordance with the dispute avoidance/settlement procedure).

[19] In support of his submissions regarding the interpretation of the Agreement Mr Brewer relied on the decision in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Limited 15 (Berri).

[20] As to the Respondent’s jurisdictional objection, Mr Brewer submitted that:

•  the terms of the Agreement had a plain meaning and granted the Commission the power to deal with the dispute; and

•  he did not seek an order which would give rise to an inconsistency with the Act or Agreement, adding that s.739(5) of the Act did not prevent the Commission from dealing with the dispute and making a decision that binds the parties.

[21] More particularly, Mr Brewer submitted inter alia that:

•  clause G2.1 of the Agreement expressly includes disputes about the implementation of the Agreement and that the implementation of disciplinary action under Section H of the Agreement must come within that category;

•  it would be both impermissible and incorrect for the Commission to construe the Agreement as excluding disputes arising from Section H of the Agreement unless there had been an appeal under Section J of the Agreement which had been made within time, accepted and concluded;

•  acceptance of the Respondent’s contention in this regard would require the rewriting of the Agreement which was impermissible;

•  the Respondent’s interpretation of the Agreement would deprive an employee of the right of review by the Commission in numerous circumstances that related directly to the interpretation or implementation of the Agreement, e.g. where an appeal under Section J is accepted but for some reason is not progressed by the Convenor; and

•  each of the remedies sought are consistent with the kinds of remedies that may be made in an internal review or appeal.

[22] As such, Mr Brewer contended that the Respondent’s jurisdictional objection should be dismissed.

[23] At the hearing Mr Brewer largely reiterated his written submissions. Among other things Mr Brewer submitted that:

•  no decision to impose a sanction could be implemented until after a decision regarding misconduct had been made, contending that the Respondent’s approach in this case denied him the opportunity to make submissions on the proposed disciplinary action on the basis that Ms Mitcherson’s letter of 11 October 2017 made a finding of misconduct against him;

•  the proper interpretation of clause J2.1 of the Agreement was that the employee had to be notified of the decision to take disciplinary action, adding that the Respondent had provided no evidence that it was unable to notify him of that decision;

•  the practical effect of the Respondent’s interpretation of the Agreement was to punish him for its non-compliance with the requirements of the Agreement regarding notification of a finding of misconduct and the subsequent opportunity to comment on the proposed disciplinary action;

•  there was nothing in the Agreement which precluded the Convenor from accepting an appeal that was initiated out of time, citing circumstances where an employee was injured or incapacitated as examples of where an appeal was likely to be accepted out of time; and

•  the Commission does have the jurisdiction to determine the dispute.

[24] In his witness statement 16 Mr Brewer provided a chronology of events which is consistent with the outline provided at paragraphs [6]-[16] above. Among other things, Mr Brewer deposed that on 13 October 2017 his solicitor telephoned him and told him that he had received Ms Mitcherson’s final decision letter and that he had been demoted, adding that his solicitor then emailed the letter to him. Mr Brewer further deposed that when he read the letter he did not understand what position he had been demoted to and that when he reviewed his pay slip of 16 October 2017 he was confused as it stated that his classification was Administrative Service Officer 6 but that his salary had been reduced from $91,356 to $72,175 per annum.

The Respondent’s case

[25] The Respondent submitted that the Commission’s jurisdiction in this matter is limited such that the Commission:

•  has jurisdiction to determine a dispute about whether it was able to and should have accepted Mr Brewer’s appeal against the findings made against him and the sanction imposed; but

•  does not have jurisdiction to hear a dispute about or a de facto appeal against the merits of Ms Mitcherson’s decision.

[26] The Respondent further submitted that its jurisdictional objection rested on two related grounds of statutory limitation. The first being that there must be a term of an enterprise agreement which requires or permits the Commission to deal with the dispute and the parties must have agreed that the Commission may arbitrate the dispute, adding that in this case access to the disputes settlement procedure in respect of disciplinary decisions is only enlivened after the appeal procedure at Section J of the Agreement had been followed. The second limitation arising from s.739(5) of the Act which provides that in dealing with a dispute the Commission must not make a decision which is inconsistent with the Act or a fair work instrument that applies to the parties (in this case the Agreement).

[27] Specifically, the Respondent accepted that a dispute as to whether Mr Brewer’s appeals were out of time was a matter that was within the Commission’s jurisdiction as it went to the proper construction of clause J2.1(c) of the Agreement. In that regard, the Respondent posited that clause J2.1(c) should be given its ordinary meaning as setting a strict time period within which to appeal. However, the Respondent contended that Mr Brewer’s request that the Commission set aside the findings of misconduct and the sanction of demotion to a lower classified position and restore him to his substantive classification with appropriate back pay were matters more appropriately dealt with through the Agreement’s appeal processes. More particularly, the Respondent posited that the Agreement does not allow the Commission to exercise its dispute settling power to conduct a disciplinary appeal of a first instance disciplinary decision. This the Respondent contended was because clause J6 of the Agreement expressly authorised the Commission to exercise its powers and functions under the disputes procedure at Part G of the Agreement at the end of the appeal procedure set out at Part J of the Agreement. The Respondent submitted that the Agreement established a procedure which ensured the disputes procedure could be invoked for disciplinary matters only once the matter was ripe for external review. The Respondent relied on the decision in R v Wallis: ex parte Employers Association of Wool Selling Brokers 17 in support of its contentions in this regard.

[28] As to the second limitation mentioned above, the Respondent said that the relief sought by Mr Brewer was inconsistent with the Agreement for a number of reasons, including that:

•  the application was not consistent with the Respondent’s view that the appeal must be notified within fourteen days of notification of the disciplinary action and cannot be extended as it required the Commission to act contrary to the express terms of clause J2.1(c); and

•  the application in seeking a review of a disciplinary decision effectively deprives the Respondent of the procedures at Section J of the Agreement, adding that those procedures were of value to the Respondent and were the result of negotiation with employees and their representatives.

[29] While the Respondent noted the Full Federal Court’s observations in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Another 18 about the effect of s.739(5) of the Act, it said that its objection was that there was no decision that the Commission could make in dealing with the application which would be consistent with the Agreement. In other words, it submitted, the limitation imposed by s.739(5) of Act in the context of the terms of the Agreement and the dispute reduced the decisions which could be made in this matter to zero.

[30] The Respondent in its final reply submissions regarding its jurisdictional objection refuted aspects of Mr Brewer’s submissions on that issue. Among other things, the Respondent contended that the fundamental error in Mr Brewer’s submissions regarding its objection was that those submissions read the terms of Section G of the Agreement (which includes the disputes avoidance/settlement procedure) in isolation from the context of that Section in the Agreement taken as a whole. The Respondent also posited that its submissions did not entail any rewriting of the Agreement and reiterated its submission that Mr Brewer’s application should be dismissed.

[31] At the hearing, the Respondent submitted among other things that:

•  since March 2017 it had been in the habit of corresponding with Mr Brewer via his legal representative, adding that it was entitled to rely on the convention that when a document is served on a solicitor it is also served on the person they represent;

•  it rejected Mr Brewer’s contention that Ms Mitcherson’s letter made no valid decision to take disciplinary action, noting that the letter of 27 October 2017 to the Convenor by Mr Brewer’s legal representative took no issue with the failure to make a finding of misconduct before deciding to take disciplinary action;

•  the Commission should therefore attach zero weight to Mr Brewer’s contention that he had been denied the opportunity to comment on the proposed disciplinary action;

•  Mr Brewer could have sent a brief appeal application to the Convenor within time on the basis that further details would be provided at a later date;

•  it had complied with all of the requirements set out in clause H10.4 of the Agreement;

•  it was a matter of fact that it had made a decision to take disciplinary action, adding that while the Commission was entitled to form a view that the Agreement had not been complied with, a finding that there was no sanction decision would involve the exercise of judicial power;

•  Mr Brewer’s submissions invite the Commission to make a decision which is inconsistent with the terms of the Agreement; and

•  it had done nothing to remove Mr Brewer’s right of appeal under clause J2 of the Agreement, reiterating that that right was only exercisable if the requirements specified in clause J3.2 were satisfied.

The Relevant Clauses of the Agreement

[32] 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.

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 v. to property or equipment;

a) transfer the employee temporarily or permanently to another position at level or to a lower classification level;

b) remove any monetary benefit derived through an existing Attraction and Retention Incentive (or existing SEA);

c) 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.

H12.2 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.

H12.3 The appeal procedures under Section H apply to the exclusion of the rights of appeal and review under the PSM Act 1994 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 (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;…

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.

J3 COMPOSITION OF THE APPEAL PANEL

…

J3.2 Where an application is received by the Convenor of the Appeal Panel in accordance with the requirements set out in subclause J2.1 and J2.2 the Convenor of Appeal Panels will set up an Appeal Panel.

…

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.

…

J4.3 The Appeal Panel will have the discretion to decide not to conduct a review of the appeal application, or, if it has commenced reviewing the application, to decide not to proceed further if, in the opinion of the Panel:

a) the application is frivolous or vexatious, or not made in good faith; or

b) the employee making the appeal may apply to another person or authority about the application who may more appropriately deal with the action; or

c) further review of the application is not warranted.

…

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.

J4.7 The Appeal Panel must be provided with all relevant information and evidence that was available to the decision-maker in the making of the original decision or in taking the original action. To ensure efficiency and timeliness, the Appeal Panel should not undertake to collect the same information or new evidence.

…

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.” (Underlining added)

Consideration of the issues

[33] There are three threshold issues to be determined in this case which can be summarised as:

•  whether either of Mr Brewer’s appeals were initiated within time;

•  if not, whether the Agreement provides scope for the Commission to extend the fourteen day period for initiating an appeal specified in clause J2.1 of the Agreement; and

•  whether the Commission is authorised to review a disciplinary finding and/or decision to impose a sanction under clause G2 of the Agreement in circumstances where an Appeal Panel has not been convened due to an appeal not being initiated within time.

[34] I deal with each of these issues separately below.

[35] Consideration of these issues requires the Commission to interpret the relevant provisions of the Agreement. The principles relevant to construing a term or terms of an enterprise agreement were summarised by the Full Bench in Berri as follows:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” 19

[36] I adopt the principles set out in Berri.

Were Mr Brewer’s appeals lodged within time?

[37] The Respondent contended that the reference in clause J2.1 of the Agreement to “An employee, or the employee’s union or other employee representative on the employee’s behalf” meant that service of a decision to take disciplinary action under clause H10.1 on any of those parties was sufficient to start the clock ticking in respect of the fourteen day period within which to initiate an appeal. The Respondent further contended that from 15 March 2017 it corresponded with Mr Brewer’s legal representatives as they had repeatedly affirmed that they acted on behalf of Mr Brewer, adding that this was done because Mr Myrtle informed the Respondent that Slater & Gordon acted on behalf of Mr Brewer. The Respondent submitted that it acted in good faith in relying on that representation.

[38] On the other hand, Mr Brewer submitted clause J2.1 still required the Respondent to advise Mr Brewer of the decision to impose a sanction.

[39] Several considerations arise from the Respondent’s contentions regarding the interpretation of clause J2.1 of the Agreement.

[40] First, it is not disputed that Slater & Gordon has represented Mr Brewer in this matter since at least March 2017. However, there is no evidence before the Commission that substantiated the Respondent’s contention that Slater & Gordon acted as Mr Brewer’s agent in relation to his dealings with the Respondent. While I note that Ms Mitcherson’s letter of 13 July 2017 was addressed to Mr Brewer care of Slater & Gordon and that no objection was raised about this in Mr Brewer’s response which was sent to Ms Mitcherson by Slater & Gordon on 16 August 2017, this does not of itself mean that Slater & Gordon acted as Mr Brewer’s agent in this matter.

[41] Second, consistent with Principle 1 in Berri, considering clause J2.1 against the text of the Agreement viewed as a whole I note the following:

•  clause H10.4 of the Agreement provides that “Before taking disciplinary action, the head of service will advise the employee in writing of ...” (underlining added);

•  clause H10.5 similarly provides that “After considering the employee’s response ... The head of service will inform the employee in writing of ...” (underlining added);

•  clause H12 of the Agreement provides that “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” (underlining added);

•  Section J of the Agreement sets out the Appeal Mechanism which applies in respect of certain actions under the Agreement;

•  clause J1.1 states that Section J of the Agreement “sets out an appeal mechanism for an employee where the employee ... is not satisfied with the outcome of decisions described in the following clause” (underlining added); and

•  clause J1.2(d) specifies that the appeal mechanism set out in Section J applies to “decisions to take disciplinary action under subclause H10.1 of this Agreement, except a decision to terminate the employee’s employment” (underlining added).

[42] What is clear from the above is that all of the provisions cited use the words “an employee”, “the employee” or “the employee’s” when referring to advice of either a proposed or final decision to take disciplinary action or when referring to appeal rights. Particularly relevant in my view is the obligation under clause H10.5 for the head of service to inform the employee in writing of the final decision regarding disciplinary action, the date of effect of any disciplinary action (or alternatively the cessation of the action) and the appeal mechanisms available under the Agreement. Clause H10.5 does not make any reference to advising the employee’s union or other employee representative in lieu of advising the employee of these matters.

[43] Reading clauses H10.5 and J2.1 together and having regard to the absence of any reference to an employee’s union or other employee representative in the various other provisions mentioned above supports an interpretation of clause J2.1 which sees the fourteen calendar days within which an appeal may be initiated commencing when the employee is notified of the decision to take disciplinary action as per clause H10.5 of the Agreement. In my view, the reference to an employee’s union or other employee representative in clause J2.1 is limited to describing who may initiate an appeal on an employee’s behalf as opposed to a party upon who a decision to take disciplinary action can be served as an alternative to advising the employee.

[44] The practical effect of this interpretation of the Agreement is that it was only when Mr Brewer was notified of the decision to take disciplinary action that the timeframe for initiating an appeal under clause J2.1 of the Agreement commenced. In this case Mr Brewer was only notified of that decision when he was forwarded Ms Mitcherson’s letter of 11 October 2017 by his legal representative on 13 October 2017. On 27 October 2017 Mr Brewer’s representative wrote to the Convener requesting that an Appeal Panel be convened, with that request made within fourteen calendar days of Mr Brewer being notified of Ms Mitcherson’s decision.

[45] In summary, when regard is had to the text of the Agreement as a whole, it was only when Mr Brewer was notified of the decision regarding disciplinary action that the clock started ticking in terms of the timeframe for initiating an appeal under clause J2.1 of the Agreement. Against that background and in circumstances where it is not disputed that Ms Mitcherson’s decision to impose a sanction is an appealable decision as per clause J1.2(d) of the Agreement, I consider it appropriate that the Convenor should convene an Appeal Panel in accordance with clause J3.2 of the Agreement.

[46] As previously noted, Mr Brewer contended that his letter of 5 December 2017 also initiated an appeal within time on the basis that Ms Mitcherson’s letter of 1 December 2017 constituted a decision to impose disciplinary action. In her letter Ms Mitcherson disputed the assertion made by Mr Brewer’s legal representative in his correspondence of 17 November 2017 that her decision to demote Mr Brewer was invalid and that she had not made a decision as to disciplinary action in respect of Mr Brewer. In my view, the letter does nothing more than respond to the letter sent by Mr Brewer’s legal representative on 17 November 2017. Having regard to the terms of Ms Mitcherson’s letter does not support a finding that it is a decision to impose disciplinary action or constitutes an appealable decision for the purposes of clause J1.2(d) of the Agreement. Accordingly, there is no basis for the Convenor to convene an Appeal Panel arising from the letter of 5 December 2017 sent by Mr Brewer’s representative as the requirements of clause J3.2 are not satisfied.

[47] I note also the ACT Public Sector Support Services Enterprise Agreement 2013-2017 20 includes the Youthworker 2 (ASO 4) classification which has four pay points attached to it, the highest attracting an annual salary of $72,175 per annum (this is the classification and annual salary to which Mr Brewer was demoted). Section O of that agreement sets out terms and conditions which are specific to the Respondent, with clause O.5 dealing with Youth Workers and clause O.6 dealing with Bimberi Broadbanding. This supports the Respondent’s contention that the agreement applies at Bimberi and reinforces my view that Ms Mitcherson’s letter was not a decision regarding disciplinary action. Further, it does not support Mr Brewer’s contention that he had been demoted to a position that does not exist and that the decision to take disciplinary action was therefore invalid until Ms Mitcherson’s letter of 1 December 2017.

Does the Agreement provides scope for the Commission to extend 14 day period for making an appeal specified in clause J2.1 of the Agreement?

[48] In view of the interpretation of the Agreement set out above it is not strictly necessary for the Commission to determine this issue. Nevertheless, I would observe that in the absence of any provision which provides the Convenor with discretion to accept an application outside the fourteen day timeframe specified in clause J2.1(c) in the Agreement I consider it unlikely that the Commission would be able to extend that timeframe. To do so would in essence require the Commission to rewrite the Agreement to achieve what might be regarded as a fair or just outcome. This would be inconsistent with the principles set out in Berri.

Is the Commission authorised to review a disciplinary finding and/or decision to impose a sanction under clause G2 of the Agreement in circumstances where an Appeal Panel has not been convened?

[49] As noted above, in his application Mr Brewer sought that the finding of misconduct and his demotion to a lower classified position be set aside and that he be restored to his substantive classification with appropriate back pay.

[50] On the other hand the Respondent posited that the Commission does not have jurisdiction to hear a dispute about or a de facto appeal against the merits of Ms Mitcherson’s decision.

[51] As per Berri, consideration of whether the Commission has the power under the Agreement to grant the above remedy sought by Mr Brewer commences with a consideration of the ordinary meaning of the words in the disputed provisions having regard to those provisions context and purpose, including the text of the Agreement as a whole. However before turning to consider the specific provisions of the Agreement, it is appropriate to provide a brief overview of the structure of the Agreement. The Agreement has twenty five sections (A to Y), with Sections M to Y setting terms and conditions specific to particular groups of employees or areas of the ACT Public Service. With the regard to the matter before the Commission, the relevant Sections of the Agreement are:

•  Section G – Communication and Consultation, which includes G2 – Dispute Avoidance/Settlement Procedures;

•  Section H – Workplace Values and Behaviours, which includes H6 – Misconduct & Discipline, H7 – Dealing with Allegations of Misconduct, H10 – Disciplinary Action and Sanctions and H12 – Right of Appeal; and

•  Section J – Appeal Mechanism which sets out the appeal mechanism which applies in respect of a number of decisions including a decision to take disciplinary action under clause H10 of the Agreement (excluding termination of employment) and includes J6 – Right of External Review.

[52] More particularly, the relevant provisions of the Agreement in the context of this matter are:

•  clause G2.1 which describes the objective of the Agreement’s dispute avoidance/settlement procedure as inter alia “the prevention and resolution of disputes about matters arising in the workplace, including disputes about the interpretation or implementation of the Agreement”;

•  clause G2.9 which provides that the Commission may deal a dispute in two stages and empowers the Commission to arbitrate and make a binding determination in circumstances where conciliation/mediation among other things fail to resolve the dispute;

•  clause H12 which provides that “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”;

•  clause J4.6 which provides that where an Appeal Panel determines that an application for appeal requires further consideration, it will conduct a procedural review on the papers to determine a number of issues including whether it was open to the head of service to take the action that he or she did and whether the final decision of the head of service was appropriate in all of the circumstances;

•  clause J6.1 which provides that the employee, or the employee’s union or other employee representative on the employee’s behalf, may seek a review by the Commission of a decision of the head of service under either clause J4.12 or J4.15 of the Agreement

- by way of background, clause J4.12 provides that the head of service, after considering the Appeal Panel’s report 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; and

•  clause J6.2 which provides that the Commission is empowered to resolve the matter in accordance with the powers and functions set out in clause G2 of the Agreement.

[53] What is clear from the above is that the Agreement includes specific provisions relating to misconduct and establishes a specific appeal mechanism in respect of appeals relating to decisions to take disciplinary action (among other decisions) where it has been determined that misconduct has occurred. Further, the Agreement provides for a right of external review by the Commission in respect of specified decisions by the head of service, with the Agreement specifying that in undertaking such an external review the Commission is empowered to do so in accordance with the powers and functions set out in clause G2 of the Agreement. Beyond that reference to clause G2, neither Section H nor Section J of the Agreement makes any reference to clause G2.

[54] While I accept that clause G2 is very broad in terms of the matters that can be brought under the Agreement’s dispute avoidance/settlement procedures and that no exclusions are specified in the provision, consistent with the Principles set out in Berri the provision needs to read in the context of the Agreement as a whole. Doing so supports a finding that appeal mechanism set out in Section J of the Agreement is the agreed mechanism for reviewing decisions to take disciplinary action and that an Appeal Panel established under Section J has the capacity to consider whether it was open to the head of service to make the decision that he or she did. This suggests that the Appeal Panel can undertake a merits review where it considers it appropriate. The above interpretation of the Agreement is supported by clause H12 which provides that “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 … except action to terminate the employee’s employment.” In my view the absence of any reference to clause G2 in clause H12 is telling.

[55] In summary, the above analysis supports the interpretation of the Agreement advocated by the Respondent as opposed to that advanced by Mr Brewer.

[56] For the Commission, in the absence of an Appeal Panel having been convened there is no jurisdiction to deal with that aspect of Mr Brewer’s application relating to the finding of misconduct and a decision to take disciplinary action. I note that even if an Appeal Panel had been convened the Commission would not be able to determine the matter as sought by Mr Brewer. This is because clause J6.1 of the Agreement limits the scope of any review by the Commission to a review of a decision of the head of service under either clause J4.12 or J4.15 of the Agreement (with the latter unlikely to be relevant in this case).

Conclusion

[57] In summary, for all the reasons set out above, I have concluded that:

•  Mr Brewer was notified of the Respondent’s decision to take disciplinary action on 13 October 2017;

•  the appeal initiated on Mr Brewer’s behalf on 27 October 2017 was initiated within fourteen days of Mr Brewer being advised of the decision to take disciplinary action;

•  the Convenor of Appeal Panels should therefore convene an Appeal Panel in accordance with clause J3.2 as soon as practicable to consider Mr Brewer’s appeal;

•  Section J of the Agreement is the agreed mechanism for reviewing decisions to take disciplinary action;

•  a decision to take disciplinary action under clause H10 of the Agreement cannot be the reviewed under clause G2 of the Agreement; and

•  accordingly, clause G2 does not empower the Commission to set aside the findings of misconduct against Mr Brewer and his demotion to a lower classified position or to determine that he be restored to his substantive classification with appropriate back pay .

Appearances:

J. Ronald of Counsel for the Applicant

J. Macken of Counsel for the Respondent

Hearing details:

2018

Canberra

May 1

Printed by authority of the Commonwealth Government Printer

<PR608531>

 1   AE408295

 2   Exhibit 1

 3   Outline of Submissions for the Respondent In Reply at Attachment E

 4   Ibid at Attachment B

 5   Ibid

 6   Ibid at Attachment C

 7   Ibid

 8   Exhibit 1 at Attachment E

 9   Ibid

 10   Ibid at Attachment F

 11   Ibid at Attachment G

 12   Ibid at Attachment H

 13   Ibid at Attachment I

 14   Ibid at Attachment J

 15   [2017] FWCFB 3005

 16   Exhibit 1

 17 (1949) 78 CLR 529

 18 [2016] FCAFC 82

 19   [2017] FWCFB 3005 at [114]

 20   AE410841