Huiskens, Orville v v/Line Corporation

[2021] FWC 2999

[2021] FWC 2999

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Huiskens, Orville
v
V/Line Corporation
(C2021/714)

COMMISSIONER MCKINNON MELBOURNE, 26 MAY 2021

Dispute under enterprise agreement – scope of dispute resolution term - whether matter arising under the Agreement – whether dispute relating to decision to dismiss – no utility – application dismissed.

[1] This decision is about whether the Commission can deal with a dispute brought by Orville Huiskens against V/Line Corporation under the V/Line Rail Operations and Administrative Employees Agreement 2019. The question is this:

“Is the dispute one relating to the decision to terminate an Employee's employment within the meaning of clause 11.5(e)(ii) of the V/Line Rail Operations and Administrative Employees Agreement 2019, meaning that the FWC does not have the power to arbitrate the dispute?”

[2] Since February 2019, Mr Huiskens has been enrolled in V/Line’s Conversion Driver Training program with the aim of becoming a qualified V/Line train driver. After failing aspects of the program and being involved in two operational incidents, he was stood down on full pay on 27 January 2021. In a letter of that date, he was advised:

“V/Line has determined that you have been unable to demonstrate to a satisfactory level your ability to complete the driver training program, which is evidenced by poor assessment results and unsatisfactory progress through the training program. As such, V/Line has formed the preliminary view that it is appropriate to terminate your employment, with notice.”

[3] Mr Huiskens was invited to consider and respond to V/Line’s preliminary view that it was appropriate to terminate his employment “before any final decision is made”. Absent his response, V/Line advised that it would “proceed to make a decision”.

[4] On 1 February 2021, lawyers for Mr Huiskens responded to the show cause letter, seeking to “invoke the dispute settlement procedure” in clause 11 of the Agreement and asking that Mr Huiskens be returned to complete his training “forthwith” to restore the status quo under clause 11.2(b). The clause 11 dispute is said to be in relation to:

1. V/Line’s training, assessment and related obligations under clause 97 of the Agreement, and

2. V/Line’s assessment of Mr Huiskens’ training pursuant to clause 97 of the Agreement.

[5] Clause 11 of the Agreement contains a dispute settlement procedure. The procedure applies to disputes relating to matters arising under the Agreement. It also applies to disputes that relate to matters pertaining to the employment relationship, except disputes “in respect to” a decision to dismiss an employee (sub-clauses 11.1(a) and (c)). Clause 11.5(e) limits the Commission’s power to arbitrate or otherwise deal with a dispute “relating to” the decision to terminate an employee’s employment.

[6] Other than by agreement of the parties, the Commission does not have power under clause 11 to deal with a dispute relating to the decision to terminate an employee’s employment, either by arbitration (see clause 11.5(e)(ii)) or by the exercise of any of its other dispute resolution powers (see the final paragraph in clause 11.5(e) which is included for the “avoidance of doubt”). There is a different use of language in clause 11.5(e) between “the” decision to terminate and “a” decision to terminate, but in my view this is simply an infelicity of drafting. The two phrases, located as they are in the same clause, refer to the same limitation on the Commission’s private arbitration powers under the Agreement.

[7] What is the scope of the limitation on the Commission’s power in clause 11.5(e) of the Agreement? The words “relating to” are to be construed broadly. They have substantially the same meaning as the words “in respect to” used in clause 11.1 of the Agreement, although the formulation in clause 11.1 conflates the phrases “in respect of” and “with respect to”. The words “relating to” require that there be a real connection to the relevant subject matter, rather than one that is insignificant, or remote and merely incidental. 1 In this case, for the limitation to apply, clause 11.5(e) requires that there be a real connection between the dispute brought by Mr Huiskens and a decision to dismiss him.

What is the dispute about?

[8] Mr Huiskens says the dispute cannot relate to a decision to dismiss him, because no such decision has been made. Instead, he says the dispute is generally about matters arising under clause 97 of the Agreement and the “opportunity to complete his training”. An opportunity that will be lost if Mr Huiskens is dismissed.

[9] Clause 97 deals with the driver training scheme. It regulates recognition of prior learning and credit transfer, delay and payment, route knowledge, training timeframes, continuation and training at alternative locations. Clause 97.3 of the Agreement deals with a failure to meet requirements and gives V/Line the right to elect to terminate employment for unsatisfactory progress through the training program.

[10] The events giving rise to the dispute can be summarised briefly.

[11] In January 2021, V/Line’s Leah Richards (People Business Partner) and Renee Cox (Driver Training and Development Manager) decided to recommend the dismissal of Mr Huiskens. A recommendation was prepared and circulated by email to relevant decision makers on an unidentified date in January 2021. The recommendation was “to commence the show cause process for termination of employment” and to seek a “response to the decision that termination is the most appropriate outcome”. The recommendation was approved on 27 January 2021 by Scott Short, Acting Executive General Manager Operations.

[12] On 27 January 2021, Mr Huiskens was notified by V/Line that he would be dismissed unless his response and any relevant mitigating factors persuaded it otherwise.

[13] Mr Huiskens provided his response on 1 February 2021 when his lawyers advised V/Line that the matter was in dispute. It is clear from V/Line’s subsequent correspondence of 5 February 2021 that the response did not have the relevant persuasive effect. V/Line’s position did not change:

1. At paragraph 18, V/Line confirmed its view that in combination, two failed practical assessments, a Category 3 theory assessment failure and two serious safety breaches were sufficient in the circumstances to propose to terminate employment.

2. At paragraph 19, the assertion that Mr Huiskens had been denied procedural fairness in dealing with concerns about his performance was rejected as “plainly and entirely false”.

3. At paragraphs 25 and 26, V/Line noted that Mr Huiskens had been afforded opportunities above what was ordinarily required and that his training performance was below that of other trainee drivers.

[14] On 10 February 2021, V/Line met with Mr Huiskens and his lawyers. Further mitigating factors and options for resolution of the dispute were discussed. The following day, V/Line rejected two further mitigating factors raised by Mr Huiskens as reasons to depart from its proposal to dismiss. It again invited him to respond to the proposal to terminate Mr Huiskens’ employment.

[15] On 12 February 2021, the dispute was notified to the Commission.

[16] The dispute arose four days after Mr Huiskens was notified of V/Line’s preliminary view that he should be dismissed. It must be seen in the context of Mr Huiskens’ participation in the Conversion Driver Training program since February 2019 and the notable absence of any dispute about the training program from its commencement until notice of proposed dismissal was issued on 27 January 2021.

[17] In discussions between the parties prior to notification of the dispute to the Commission, clause 97.3 of the Agreement was identified as the genesis of the dispute. I agree that it is the source of the dispute. V/Line is proposing to exercise its right under clause 97.3 to “elect to terminate” the employment of Mr Huiskens. Mr Huiskens disputes the exercise of this right. A dispute about an election to terminate employment under clause 97.3 of the Agreement is a matter arising under the Agreement.

[18] The dispute also relates to a decision to dismiss Mr Huiskens. This is because the words “relating to” are to be applied broadly. A dispute about whether a decision to dismiss should be made is a dispute relating to a decision to dismiss. There is a real connection between the subject matter of this dispute and the decision to dismiss Mr Huiskens: electing to terminate Mr Huiskens’ employment under clause 97.3 necessarily involves a decision to dismiss him. The connection between the decision to dismiss and the subject matter of the dispute is more than remote or merely incidental. It is not insignificant.

[19] It is true that a final decision to dismiss Mr Huiskens has not yet been made by V/Line. V/Line has formed a preliminary view that dismissal is appropriate, and a view is an opinion or perspective, not a decision. A decision is a conclusion reached after consideration. The question of whether to dismiss Mr Huiskens is still under consideration. However, the consideration is in its final stages. Mr Huiskens has had the opportunity to respond to the proposal and he has done so. His responses have not altered V/Line’s view that dismissal is the appropriate outcome.

[20] While V/Line has the right to terminate Mr Huiskens under clause 97.3, Mr Huiskens has the right to seek a remedy for his dismissal under the Act if he considers it to have been either unlawful or unfair. There is no need for a separate dispute resolution process to deal with disputes about whether dismissal can or should occur in those circumstances, or for the status quo to operate in a way that will prevent V/Line from doing what the parties have agreed it can do. In my view, this is what the parties had in mind when they excluded unilateral disputes of this kind from the scope of the Agreement’s dispute settlement procedure.

The Commission’s power to deal with the dispute

[21] The consequence of these findings is twofold. Firstly, as the dispute is about a matter arising under the Agreement, the Commission has jurisdiction to deal with the dispute.

[22] Secondly, and because the dispute is one “relating to” a decision to dismiss Mr Huiskens, the Commission’s ability to deal with the dispute is effectively displaced by clause 11.5(e) of the Agreement. The Commission can only arbitrate the dispute or exercise its other dispute resolution powers, such as mediation, conciliation, expressing an opinion, issuing a statement or making a recommendation, if the parties agree.

[23] In dealing with a dispute under clause 11 of the Agreement, the Commission must not exercise any powers limited by the term (section 739(3) of the Act). It cannot make a decision that is inconsistent with the Agreement (section 739(5) of the Act).

[24] The answer to the question posed by the parties is that the dispute is one relating to the decision to terminate an employee's employment within the meaning of clause 11.5(e)(ii) of the Agreement. Without the agreement of the parties, the Commission does not have power to arbitrate (or otherwise deal with) the substantive dispute.

[25] As the parties have not agreed to the Commission’s exercise of dispute resolution powers in relation to the dispute, either by arbitration or other means, there is no utility in the matter proceeding before the Commission.

[26] The application is dismissed.

COMMISSIONER

Appearances:

R Millar of Counselfor the Applicant.
D Trindade of Clayton Utz for the Respondent.

Hearing details:

2021.
Melbourne:
May 3.

Printed by authority of the Commonwealth Government Printer

<PR730153>

 1   O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; Maritime Union of Australia, The v Maersk Crewing Australia Pty Ltd [2016] FWCFB 1894.