Independent Education Union of Australia v Father Nicholas Pearce
[2020] FWC 5416
•9 OCTOBER 2020
| [2020] FWC 5416 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Independent Education Union of Australia
v
Father Nicholas Pearce
(C2020/1408)
Educational services | |
COMMISSIONER CIRKOVIC | MELBOURNE, 9 OCTOBER 2020 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – alleged misconduct - investigation of conduct – whether employee was denied procedural and substantive fairness in investigation by failure to provide identified material – whether employee was denied opportunity to respond or seek clarification pursuant to requirements of enterprise agreement by failure to provide identified material.
[1] This decision involves an application brought by the Independent Education Union of Australia (IEUA) under section 739 of the Fair Work Act 2009 (Cth) (Act). The Respondent is Father Nicholas Pearce (Fr Pearce). Fr Pearce operates the Holy Family Primary School in Kew (School).
[2] The parties are covered by the Victorian Catholic Education Multi-Enterprise Agreement 2018 (Agreement). The Agreement was approved by the Fair Work Commission (Commission) on 20 February 2019. It has a nominal expiry date of 30 April 2021. The Agreement applies to employers listed in Appendix 10 of the Agreement and employees of those employers employed in classifications contained in the Agreement. 1
Background
[3] As a result of the confidentiality orders referred to below at paragraph [6], any reference to the name of the student at the centre of the allegations that relate to this dispute shall be replaced with ‘Student D’.
[4] It is of assistance, at this juncture, to briefly summarise the factual circumstances that led to the dispute. Ms Grabau is a teacher employed by Fr Pearce at the School and has been engaged in this role since 2008. 2 It was alleged that on 14 November 2019, Ms Grabau pulled Student D by the ear (Allegation 1) and said to Student D words to the effect of “I’m like Miss Trunchbull I can grab [Student D] by the ear and throw [Student D] out the window if I want to”3 (Allegation 2) (collectively, the Allegations). It is the process implemented by the School in response to the Allegations that has led to the dispute before the Commission. The nature of this process is set out later in this decision. It is also worth noting that, following the investigation, Allegation 2 was not substantiated. The substance of the current dispute is confined to the school’s handling of and response to Allegation 1.
[5] The IEUA filed an application on 10 March 2020. The matter was listed for conference on 26 March 2020, but the parties were ultimately unable to resolve the dispute.
[6] The dispute was listed for arbitration on 16 July 2020. At the hearing, the parties jointly submitted that it was appropriate that a confidentiality order be made with respect to certain information identifying students and parents of students of the School. I considered it appropriate to make such orders and issued them accordingly. 4
Questions for arbitration
[7] The parties jointly submitted that the questions for arbitration are: 5
1. Was Ms Grabau denied procedural fairness as required by subclause 13.1 of the Agreement because the Respondent refused to provide her with:
a. the dates that each of the witnesses were interviewed;
b. the questions put to the witnesses;
c. a detailed summary of evidence relating to what each witness said;
d. confirmation of whether the student that was the subject of the allegation was medically assessed in relation to the incident; and/or
e. the investigation report referred to in Ms David’s letter dated 31 January 2020.
2. Has Ms Grabau been provided an opportunity to seek clarification or respond to the Concern(s), the investigation arising from the Concerns and the proposed course of action, as required by cl. 13.3 of the Agreement, in circumstances where the Respondent has refused to provide Ms Grabau with:
a. the dates that each of the witnesses were interviewed;
b. the questions put to the witnesses;
c. a detailed summary of evidence relating to what each witness said;
d. confirmation on whether the student that was the subject of the allegation, was medically assessed in relation to the incident; and/or
e. the investigation report referred to in Ms David’s letter dated 31 January 2020.
3. Has Ms Grabau been provided an opportunity to respond to the Respondent’s proposed course of action to issue her with a warning as required by cl. 13.5 of the Agreement in circumstances where the Respondent has refused to provide Ms Grabau with:
a. the dates that each of the witnesses were interviewed;
b. the questions put to the witnesses;
c. a detailed summary of evidence relating to what each witness said;
d. confirmation on whether the student that was the subject of the allegation was medically assessed in relation to the incident; and/or
e. the investigation report referred to in Ms David’s letter dated 31 January 2020.”
[8] The IEUA contends that the answer to each question (and the respective sub questions) should reflect that Ms Grabau was denied procedural and substantive fairness and an opportunity to respond as required by clauses 13.3 and 13.5 of the Agreement. Fr Pearce contends that Ms Grabau was accorded procedural and substantive fairness as required by clause 13 and provided with an opportunity to respond.
Issues in dispute
[9] In summary, the issue in dispute requires an interpretation of clause 13 dealing with disciplinary process which is set out at paragraph [15] below.
[10] The issues for me to determine are whether the obligations arising from clauses 13.1, 13.3 and 13.5 have been satisfied notwithstanding Fr Pearce’s refusal to provide the following information:
• date of each witness interview;
• the questions put to the witnesses;
• a detailed summary of evidence relating to what each witness said;
• confirmation of whether Student D was medically assessed; and/or
• the investigation report.
Jurisdiction
[11] Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreement contains such a term at clause 22. It is not contested that the steps taken by the parties to resolve the dispute constituted compliance with the dispute resolution provision of the Agreement. Having regard to the information in the Form F10 application and the views of the parties, I am satisfied that the Commission has jurisdiction to deal with the dispute, including by arbitration.
Principles of Interpretation of Enterprise Agreements
[12] The parties agree that the principles that apply to the interpretation of enterprise agreements are settled.
[13] The principles that apply to the interpretation of an enterprise agreement were summarised by a Full Bench of the Commission in AMWU v Berri Pty Ltd (Berri), 6 drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd. 7 The Full Bench in Berri affirmed that the interpretation 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 dispute over the interpretation of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose. Context might appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made. The task of interpreting an enterprise agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome.
[14] Both parties sought to rely on these principles to advance their case in their submissions. I adopt and apply the principles in Berri in this decision without restating them.
Relevant provisions of the Agreement
[15] A relevant provision of the Agreement, clause 13, is reproduced below:
“13. Managing Employment Concerns
13.1 Procedural and substantive fairness to apply
(a) The principles of procedural and substantive fairness shall underpin the application of procedures under this clause.
(b) An Employee shall, at all stages of this process, have the right to be accompanied by a union representative or other support person nominated by them, whose role is to support and advise the Employee, ensure natural justice is afforded, assist the Employee to articulate their responses and participate as appropriate.
(c) The procedures under this clause must be followed prior to terminating employment (other than for reason of genuine redundancy), issuing a warning or taking any other disciplinary step.
(d) Under this clause, a Concern means a concern or concerns which would warrant the taking of any of the actions stated in clauses 13.4 or 13.5 and includes concerns regarding an Employee's performance and/or conduct and/or capacity.
13.2 Concerns
(a) An Employer who has a Concern(s) regarding an Employee shall, in the first instance, hold discussions about the Concern(s) with the Employee or take every reasonable step to do so.
(b) Following the completion of the process in clause 13.2(a), if an Employer still has a Concern(s) the Employer must advise the Employee of the intent to take no further action in this instance, or advise the Employee in writing of:
(i) the Employer’s Concern(s) including the detail of any complaints or allegations;
(ii) proposed date, time and place of the Formal Meeting to discuss the Concern(s); and
(iii) the possible course of action of the Employer. The possible course of actions of the Employer may be one or more of the measures prescribed in subclauses 13.4 and 13.5. If an Employee Improvement Plan (EIP) is the proposed action (see sub-clause 13.4), a draft of the EIP shall be provided at this time;
(iv) whether the Employee .is directed not to attend the workplace (on pay), or to perform alternate duties, or to de or refrain from doing any other thing, and the period for which this will occur. In compelling circumstances such a direction may be given prior to the issue of the written advice; and
(v) the details of a proposed investigation, if any.
13.3 The formal meeting
(a) At the meeting the Employee will be provided with an opportunity to seek clarification or respond to:
(i) the Concern(s);
(ii) the draft EIP (if applicable);
(iii) any investigation arising from the Concern(s); and/or
(iv) any proposed course of action.
(b) As a result of this Formal Meeting the Employer may:
(i) schedule a further meeting with the Employee for the purpose of allowing the Employee to respond to further information or investigation outcomes;
(ii) implement the EIP; and/or
(iii) subject to clause 13.S(a), take one or more of the measures described in subclauses 13.S(b), (c), and (d).
(c) The Employer will take every reasonable step to hold this Formal Meeting.
13.4 Employee Improvement Plan
(a) Where the Concern(s) are appropriate to be addressed by demonstrated improvement over a period of time, the Employer must provide to the Employee an EIP which:
(i) describes the Concern(s);
(ii) sets out the required standards of performance and/or expectations of the Employee's role;
(iii) outlines the training, counselling or other support, as appropriate, to be provided to help the Employee overcome the Employer's Concern(s);
(iv) stipulates the timeframe within which the required standards of work performance and/or expectations of the Employee's role are to be achieved (which should not ordinarily exceed six months unless otherwise agreed between the Employee and the Employer);
(v) proposes a schedule of performance review meetings which will take place during the course of the EIP; and
(vi) provides a copy of clause 13.
(b) Upon making a final decision regarding the outcome of the EIP, the Employer shall advise the Employee in writing as to whether:
(i) the Employer's Concern(s) have been satisfactorily addressed and the EIP is concluded; or
(ii) sufficient progress has not been made to conclude the EIP and the Employer intends to extend the period of the EIP; or
(iii) the Employer proposes to implement one of the measures prescribed by subclause 13.5.
(c) Any incremental progression which would occur in a period during which an Employee is subject to an EIP shall, subject to the Employer's discretion, be withheld until the Employee is notified that the EIP has been concluded in accordance with clauses 13.4(b)(i), 13.S(b) or 13.S(c). Any such amount withheld shall be back-paid upon the conclusion of the EIP, other than where the EIP concludes in termination of employment under clause 13.5(d).
13.5 Outcomes
(a) Before making a decision to take one of the steps in this sub-clause, the Employer must advise the Employee of the reason for and the proposed course of action, and provide the Employee with an opportunity to respond.
(b) Warnings
The Employer may issue the Employee with a warning. The warning must precisely specify:
(i) the Concern(s);
(ii) the Employer's findings (if applicable);
(iii) the Employer's expectations regarding the Employee's performance or conduct in the future; and
(iv) any directions to the Employee in relation to the Employee's conduct or performance appropriate to the situation.
(c) Removal of Position of Leadership
The Employer may terminate the Employee's appointment to a nominated Position of Leadership (including a Deputy Principal appointment which is not an ongoing Deputy Principal appointment) by providing the Employee with seven weeks' notice of their removal from the Position of Leadership or payment in lieu of such notice.
(d) Termination
The Employer may terminate the Employee's employment (on notice, or summarily) in accordance with clause 19 of this Agreement.
13.6 Renewed concerns regarding performance
If, following the conclusion of an EIP or following a warning, the Employer again has Concern(s) about matters previously dealt with in respect of an Employee under this clause, the Employer may renew the process in respect of those concerns without first holding the discussions set out in clause 13.2(a).
13.7 Potential criminal conduct
Where allegations against an Employee which are being handled under this clause are also the subject of a criminal investigation or criminal proceedings, the Employer is not required to delay or cease the process under this clause but the Employer may exercise its discretion to do so.”
Evidence
[16] The IEUA relied on witness statements from the following individuals:
• Ms Barbara Grabau, an employee of Fr Pearce and teacher at the School;
• Ms Amy Spencer, an Organiser for the IEUA; and
• Ms Cathryn Hickey, Assistant Secretary of the IEUA.
[17] Fr Pearce relied on the witness statement of Ms Julie David, Principal of the School.
[18] No witnesses were cross-examined.
[19] In order to answer the questions posed, it is necessary to examine in some detail the relevant background events that led to this dispute.
Relevant Events
[20] On 15 November 2019, in accordance with clause 13 of the Agreement, Fr Pearce commenced an investigation with respect to a complaint as to Ms Grabau’s conduct involving Student D.
[21] On 18 November 2019, the allegations were reported to the Commission for Children and Young People (CCYP).
[22] On 22 November 2019, Ms David meets with Ms Grabau and advised her that a complaint had been made regarding an incident on 14 November 2019. 8
[23] On 25 November 2019, Ms David met with Ms Grabau to discuss the incident and provides her with a letter dated 25 November 2019. Relevantly, the letter states the following: 9
“You are required to attend a meeting on Friday 29th November at 11.30am to discuss concerns which I have about your conduct.
My concerns relate to the following alleged conduct:
1. On 14 November 2019 it is alleged that you pulled [Student D] by the ear in order to make [Student D] face the board.
2. It is alleged that on 14 November 2019 you told students that, in referral to [Student D] 'Tm like Miss Trunchbull I can grab [Student D] by the ear and throw [Student D] out the window if I want to".
Due to the nature of the concerns raised, Holy Family School, Mount Waverley is required to report the alleged conduct to the Commission for Children and Young People (CCYP), in accordance with the Child Wellbeing and Safety Act 2005 (Vic) (CWS Act), under the Reportable Conduct Scheme (RCS). Under the RCS, the School is also required to investigate the alleged conduct. I will conduct the investigation on behalf of the School.
First meeting
The School will follow the process under clause 13 of the Victorian Catholic Education MultiEnterprise Agreement 2018 (VCEMEA). A copy of clause 13 is enclosed for your information. The meeting referred to above will be the first meeting or discussion in accordance with clause 13.2(a). The purpose of the meeting will be to raise the concern and outline the process to be followed. You will be given an opportunity to provide a full response to the allegations as part of the investigation process.
As provided for by clause 13.1 (b) of the VCEMEA, you may have a union representative or other support person present at the meeting if you wish. The role of this person is to provide you with support and advice and assist you in responding at the meeting. I request that you notify me as to whom this person will be at least one day before the meeting.
Investigation process
Following the meeting on Friday 29th November 2019, the next step will be your participation in the investigation process. It is standard practice for the investigator to meet with the complainant and, depending on the situation, with any witnesses to obtain the details of the allegation, before meeting with you.
I will contact you to arrange a separate meeting as part of the investigation process. As provided for by clause 13.1 (b) of the VCEMEA, you may have a union representative or other support person present at the meeting if you wish.
During this meeting as part of the investigation process, the allegations will be explained to you and you will be given an opportunity to respond. If you wish to nominate witnesses or provide documents to the Investigator, you should liaise directly with the Investigator about these matters. After the meeting you will be provided with a copy of the meeting notes and be given an opportunity to review them, clarify your responses and add additional information. You may also provide a written response prior to or during the meeting.
I will weigh up the evidence and make recommended findings on the 'balance of probabilities' (i.e. whether it is 'more likely than not' that the reportable conduct occurred). I will make recommended findings of fact (i.e. whether the alleged conduct occurred) and a recommended finding as to whether this finding of fact amounts to reportable conduct under the RCS.
Outcome of investigation
At the completion of the investigation, I will provide recommended findings to Father Nicholas Pearce (Parish Priest) for consideration in relation to any final decision regarding the recommended findings.
You will be advised in writing of the findings of the investigation (i.e. whether the allegations are substantiated). Please note that to ensure the integrity of the investigation process, the investigation report will be confidential and will not be provided to you, the complainant or witnesses. However, you will have the opportunity to meet with me to discuss the findings.
Following the completion of the investigation, (in consultation with Father Nicholas Pearce) I will give consideration as to whether further action will be taken in accordance with clause 13.2(b) of the VCEMEA. You will be advised of this in writing.
CCYP Processes
Under the RCS, the School is required to provide the investigation report and findings to the CCYP. The role of the CCYP is to independently oversee the School's response to allegations of reportable conduct including its investigation process. Attached for your information is a copy of CCYP Information Sheet 13: Workers and Volunteers and the Reportable Conduct Scheme. Further information about the RCS is available from the CCYP website at
The CCYP refers all matters regarding registered teachers to the Victorian Institute of Teaching (VIT) in accordance with the CWS Act and section 2.6.31 (5) of the Education and Training Reform Act 2006 (Vic). The School will generally be required to provide a copy of the investigation report to the VIT. If the VIT considers it to be appropriate, it may conduct its own investigation into the reportable allegation.
The CCYP may refer instances of substantiated reportable conduct to the Secretary to the Department of Justice and Community Safety for the purposes of a working with children check reassessment.
Confidentiality
You are required to keep this matter strictly confidential. To maintain the integrity of the investigation process, you are not to discuss the matter with other staff members, students or members of the school community. You are welcome to speak to your immediate family or professional or health advisers but, if you do so, please take all reasonable steps to ensure that they maintain confidentiality of the matter.
…”
[24] On 29 November 2019, a meeting takes place between Ms Grabau, Ms Spencer (an organiser with the IEUA) and Ms King (Deputy Principal of the School) to discuss the concerns raised in the correspondence and the reportable conduct process. It is not disputed that the Allegations were discussed and Ms Grabau asked a number of questions regarding the particulars of the Allegations. 10
[25] On 3 December 2019, Ms Spencer sent an email to Ms David requesting additional details regarding the Allegations. The email is set out as follows; 11
“To enable Barbara to provide a full and proper response to the allegations of reportable conduct, could you please provide the following;
1. The name of the parent who made the complaint to the classroom Teacher?
2. What did the parent say to the classroom Teacher when the complaint was made?
3. What question was put to [Student D] on Friday 15th November, and what did [Student D] say in response?
4. What time of the day did the incident occur?
5. What activity was the class undertaking when the alleged incident occurred?
6. Where all students sitting on the ground at the time?
7. Who was in [Student D’s] close proximity at the time of the alleged incident?
8. What did [Student D] report to [their] Mum on the Saturday 16th November?
9. Who are the two other student witness, and what have they said?”
[26] On 4 December 2019, Ms David responds to the request for information as follows: 12
“Please find my responses to your questions below.
The name of the parent who made the initial notification of the incident will remain confidential. This information is not deemed to be relevant or significant information that Barbara would require in order to respond to the allegation.
The alleged incident occurred during 3/4S whilst students were seated on the ground. The students have not been able to recall the approximate time of day the incident occurred.
[Student D] has been asked “Did anything happen in class between yourself and Mrs Grabau?” and has stated that [Student D] was playing with [their] friends and not paying attention in class. The teacher yelled at [Student D] to stop. [Student D] was looking at the wrong board and Mrs Grabau came over to [Student D] and yelled again and grabbed [Student D] by the ear to move [Student D’s] head to face the correct board.
[Redacted] provided that you told students, in referral to [Student D] that “I’m like Miss Trunchbull I can grab [Student D] by the ear and throw [Student D] out the window if I want to”.
I have determined that the relevant witnesses due to being in close proximity/having witnessed the incident to the allegation are:
[Student names were then provided]
Further information of contradictory evidence provided by witnesses will be provided to Barbara in the next meeting where she will respond to the allegation.
I will send Barbara a letter with the details of the next meeting today.”
[27] On 11 December 2019, a meeting took place between Ms David, Mr Whittlington (an Organiser for the IEUA), Ms King and Ms Grabau to enable Ms Grabau to respond to the Allegations. Ms David repeated the Allegations identified in the email of 4 December 2019, referred to above at paragraph [26]. Ms David also advised Ms Grabau that each of the children interviewed had reported observing some physical contact between Ms Grabau and Student D and that Ms Grabau had “either…moved [their] head or yanked [their] ear”. 13 In relation to Allegation 1, Ms Grabau denied touching Student D. Rather, Ms Grabau stated that she had asked Student D, on several occasions, to turn to face the board. As stated earlier, the substance of Allegation 2 is not relevant to the questions before me and I have not taken the matter into account beyond noting that Ms Grabau responded to the allegation at the meeting of 11 December 2019.
[28] It is not in contest that at the meeting of 11 December 2019, Ms David provided Ms Grabau with the names of the witnesses and an explanation as to how the initial complaint was investigated. 14
[29] Relevantly, Ms David also states that she informed Ms Grabau that she questioned Student D’s class on 2 December 2019 and asked the students “if I should know about anything that happened in the class when Ms Grabau was teaching”. 15 Ms David states that she informed Ms Grabau that seven children raised their hands and that she interviewed each student personally and that each student stated that Ms Grabau had made physical contact with Student D and that a majority stated that Student D was “grabbed” or “yanked “ by their ear.16 Contrary to Ms Grabau’s assertions, Ms David denies claiming that the students referred to Ms Grabau as having pulled Student D’s hair.17 On the same day, Ms Grabau provided a written response to the allegations. It is worth noting in particular the following details of the response:18
“On Thursday 14th November I agreed to take 3/4S for the day to cover for Andrea Smith who had taken leave….With the to and fro of Bev from her classroom to mine, the children became restless. I apologized to them a number of times for the delay in the day’s proceedings and thanked them many times for their patience.
…
We were having a discussion about the text when I noticed [Student D] facing some other boys near [Student D] and talking to and laughing with them. I asked [Student D] twice to turn around and face this way. On both occasions, [Student D] turned [their] head around to me, however, as soon as I started talking again, [Student D] also started talking again. On the third occasion, I walked up to [Student D] and instructed [Student D] to turn [their] legs around to the front. I used my finger to point where [Student D’s] legs were and to where [Student D’s] legs needed to be. I spoke in a firm voice so that [Student D] understood that I was not going to accept [Student D] continuing to talk during our discussion. [Student D] turned [their] legs around, facing the front and I went back to my place at the front of the room.
…
Allegation 1
• I deny that on the 14th November 2019, I pulled [Student D’s] ear or hair or physically assaulted [Student D] in any way.
• I deny shouting at [Student D].”
[30] On 12 December 2019, at Ms Grabau’s instigation, a further meeting took place between Ms Grabau and Ms David, at which time Ms Grabau contested the Allegations and raised further questions about the evidence. Ms David confirmed that a finding had not yet been made and that any assumptions as to the Victorian Institute of Teaching registration were premature. 19
[31] On 12 December 2019, Ms David commenced preparing an investigation report, having first sought advice from Catholic Education Melbourne (CEM) regarding the reportable conduct scheme and the Child Wellbeing and Safety Act 2005 (Vic) (CWS Act).
[32] Ms David determined, on the balance of probabilities, that Allegation 1 was substantiated and that Allegation 2 was unsubstantiated. 20 In coming to her decision on Allegation 1, Ms David relied on the “unanimous” evidence of the seven witnesses that Ms Grabau made contact with Student D “above the shoulders”, with the majority of students giving evidence that Ms Grabau “made contact with [Student D] around the ear” and the “generally consistent evidence” from Student D which were balanced against the evidence of Ms Grabau in person and in writing denying the allegation.21 Ms David asserts that she preferred the evidence of the seven witnesses and Student D “in concluding that allegation 1 was substantiated to the requisite standard of proof”. The report was completed on or around 17 December 2019 and provided to Fr Pearce for his review and “we agreed that the finding would result in a proposed outcome that was no worse than a warning and further training of Ms Grabau in respect of classroom management”.22
[33] On 17 December 2019, Ms David advised Ms Grabau verbally of the findings of the investigation and that the outcome would be no worse than a warning and that and some further training as well as confirming that a finalised letter would be provided after the Christmas holidays. 23
[34] On 18 December 2019, during a telephone discussion between Ms David and Ms Hickey (Assistant Secretary of the IEUA’s Victorian Branch), the latter requested a copy of the minutes of the meeting of 11 December 2019 (which were provided by Ms David the same afternoon).
[35] On 19 December 2019 the investigation report was provided to CEM by Ms David and on 20 December, pursuant to Ms David’s instruction, a copy of the report was provided by CEM to the CCYP.
[36] On 31 January 2020, Ms David forwarded a letter to Ms Grabau notifying her of the proposed outcome and requesting her response. Relevantly, the letter confirms the substantiated allegation as follows: 24
“I have now concluded the investigation and made recommended findings on the balance of probabilities as to whether the allegations were factually proven and whether this amounts to reportable conduct under the RCS. I have provided the recommended findings to Father Nicholas Pearce, as Parish Priest and decision-maker. Father Nicholas has considered and accepted the recommended findings.
The findings are as follows:
Allegation | Finding of fact | Finding of reportable conduct | |
1. | On 14 November 2019 it is alleged that you pulled [Student D] by the ear in order to make [Student D] face the board. | Substantiated | Substantiated |
2. | It is alleged that on 14 November 2019 you told students that, in referral to [Student D] “I’m like Miss Trunchbull I can grab [Student D] by the ear and throw [Student D] out the window if I want to”. | Unsubstantiated | Unsubstantiated – insufficient evidence |
As previously advised, the investigation report is confidential and will not be provided to you, the complainant or witnesses. However, you have the opportunity to discuss the findings with me.
…
Proposed course of action
In consultation with Father Nicholas Pearce I have considered whether further action will be taken in accordance with clause 13.2(b) of the Victorian Catholic Education Multi-Enterprise Agreement 2018 (VCEMEA). A copy of clause 13 is attached for your information.
In light of the findings outlined above, I propose that you be issued with a warning in accordance with clause 13.5(b) of the VCEMEA on the basis that your substantiated conduct:
• breaches the School Child Safe Policy and Code of Conduct
• is not consistent with the Victorian Teaching Profession Code of Conduct particularly Principal 1.2 Teachers treat their learners with courtesy and dignity
• is not consistent with the AITSL Australian Professional Standards for Teachers particularly Principal 4.3 Manage challenging behavior, Principal 7.1 Meet professional ethics and responsibilities and Principal 7.2 Comply with legislative, administrative and organizational requirements.
• impact on student safety and
I propose that you be warned that any future failure by you to comply with the School’s expectations as outlined in the Child Safe Policy may result in further disciplinary action being taken against you that may, depending on the circumstances, result in the termination of your employment. You are also directed to not to make physical contact with students.
Given these concerns, I have also decided that you will participate in behavior management training. The specific dates and times of this training will be discussed with you at the start of the 2020 school year.
Pursuant to clause 13.3 of the VCEMEA, you have an opportunity to seek clarification of the contents of this letter and an opportunity to respond to the proposed action. The meeting for this purpose will be held on Thursday 6th February 2020 at 12.30pm.
As provided for by clause 13.1(b) of the VCEMEA, you may have a union representative or other support person present at the meeting if you wish. The role of this person is to provide you with support and advice and assist you in responding at the meeting. I request that you notify me as to whom this person will be at least one day before the meeting.
Please advise if you do not wish to meet or provide a response to the proposed action. I will then make a decision regarding this matter based on the information currently available to me. I will then inform you of the decision in writing.
…”
[37] On 6 February 2020, a meeting takes place between Ms David, Ms Grabau, Ms Spencer, Ms King and Ms Levatic (Employee Relations Adviser at CEM). The minutes of that meeting are in evidence and relevantly records the further information requested by Ms Grabau to enable her to provide a response to the proposed outcome: 25
“Allegation 1- On 14 November 2019 it is alleged that Ms Grabau told students that, in referral to [Student D] “I’m like Miss Trunchbull I can grab [Student D] by the ear and throw [Student D] out the window if I want to”
• The allegation is not substantiated due to insufficient evidence.
• Due to the differing recollections provided by witnesses, there isn’t enough information to make a substantiated finding.
…
“**See summary from Amy
Wanting to understand how the relevant students that were witness to the incident – how did they volunteer to be witnesses?
- Question asked by Julie--Did anything happen that was different that happened when Mrs Grabau was in the class?
- This occurred the next day, after having spoken to [Student D]
- Amy- Did those 6 children say they saw something? Julie- All six put hands up, and Julie followed up individually.
- interviewed that day (Friday), witness statements were recorded
- seeking what each student said- date, time, what they said
- consistency with the stories was that it was physical contact above the shoulders
- Barb- new information in last meeting was that one student identifies that [Student D] cried, no teacher witnessed
…”
[38] At the meeting, Ms David was handed a letter from Ms Spencer requesting that Ms David provide further information before the clause 13 process was concluded. The letter is reproduced in part below: 26
“Pursuant to clause 13.3(a) of the Victorian Catholic Education Multi-Enterprise agreement 2018 (VCEMEA) our member seeks clarification on the following:
1. How did you determine that the following students where relevant witnesses to the investigation?
…
2. What date was each of the witnesses interviewed, what were they asked and what did each of them say?”
[39] On 13 February 2020, Ms David sent a letter to Ms Spencer responding to the request for information and documentation as follows: 27
“…
Additional information
In relation to your requests, it was verbally confirmed at the meeting that:
Relevant witnesses were determined by posing a general question to the students of Grade 3/4S which asked to whether they saw anything out of the ordinary occur with Ms Grabau and [Student D] on the date of the allegation. Students that raised their hand were selected to be interviewed individually.
Interviews with witnesses were conducted on 15 November 2019 and 2 December 2019.
Application of Procedural and Substantive Fairness
In addition to the information provided above, and based on your requests, Ms Grabau has been provided with additional information relating to the investigation consisting of the names of the witnesses, information relating to the student's activities at the time of the incident, information as to where the allegations originated from as well as various other pieces of information requested by you in the meeting on 6 February 2020.
The provision of this information was not required under the principles of procedural and substantive fairness required by Clause 13 of the VCEMEA and goes beyond the natural justice referred to under section 16B of the Child Wellbeing and Safety Act 2005 as demonstrated by the steps of fairness referred to in the guide published by the Commission for Children and Young People (CCYP) Guidance for Organisations Investigating a Reportable Conduct A/legation (CCYP Guide).
Furthermore, the substantiated finding was based on a reasonable assessment of all relevant evidence and facts arising from the investigation process. This has been recognized by the CCYP who is responsible for overseeing and monitoring the responses to reportable allegations. In this process, the CCYP reviews the evidence relied upon, the investigation findings and reasons a finding has been reached. This case has been closed by the CCYP with the substantiated finding endorsed, demonstrating that the process followed in this matter has been sanctioned by the governing body. CCYP's closure of this matter will be formally communicated to Ms Grabau shortly.
Request for Witness Statements
In relation to your request for the provision of the witness statements, the Clause 13 process of the VCEMEA does not require the provision of witness statements nor is it a requirement of procedural or substantive fairness. The School has already provided Ms Grabau with all credible, relevant and significant information that she has required in order to respond to the allegations and which was relied upon in reaching the finding of substantiated reportable conduct.
In addition, there are significant reasons from the perspective of encouraging children to assist with investigations under the Reportable Conduct Scheme and taking into account their welfare, for not providing the witness statements.
For these reasons, the School will not be providing Ms Grabau with the records of interviews with witnesses.
…” (emphasis retained)
[40] On 7 May 2020, several weeks after the filing of the dispute before me, Ms Grabau requested a copy of the final investigation report which was submitted to the CCYP. 28
[41] By letter dated 14 May 2020, Ms David declined Ms Grabau’s request. The letter is reproduced in part below: 29
“…
Additional information provided
To date, in response to your requests for further information in order to respond to the concerns, you have been provided with additional information relating to the investigation consisting of the names of witnesses, a verbal summary of the contents of the witness statements, the dates interviews were conducted, the student’s activities at the time of the incident, information as to where the allegations originated from as well as various other pieces of information requested in the meeting on 6 February 2020.
The provision of this information goes beyond what is required under the principles of procedural and substantive fairness as required by clause 13 of the VCEMEA and natural justice as referred to within section 16B of the Child Wellbeing and Safety Act 2005.
Provision of the Investigation Report
In addition to the information that has been provided as detailed above, your letter dated 7 May 2020 further requests the provision of the investigation report in order for you to be able to provide a response.
The Clause 13 process of the VCEMEA does not require the provision of the investigation report, nor is it a requirement of procedural or substantive fairness. The School also considers that it has already provided all credible, relevant and significant information that was relied upon in reaching the finding of substantiated reportable conduct.
In addition to this, the ‘Commission for Children and Young People (CCYP) Investigating a Reportable Conduct Allegation’ guide (CCYP guide) refers to the confidentiality of the report as being necessary in order to uphold the integrity of the investigation process. The maintenance of the confidentiality of the investigation report is furthered by the need to ensure the health and safety of those involved in the investigation process.
Furthermore on 13 February 2020, you were notified that this case has been closed by the CCYP demonstrating that the substantiated finding was based on a reasonable assessment of all relevant evidence and facts arising from the investigation and the process followed in this matter was to the standard of being sanctioned by the governing body.
…”
[42] Ms David’s reasons for declining the request are “…concern for the wellbeing and privacy of students” 30 whom she assured during the course of conducting the investigation that their confidence would not be breached, that the students are “young and vulnerable”31 and that those views were consistent with Ms David’s understanding of the principles of the CWS Act and the CCYP Guidance which provides on page 19 that “Another important reason to keep information about the investigation confidential is to protect the integrity of the investigation. If a potential witness considers that they are unable to trust the investigator not to tell others what they have said, they may be reluctant to come forward with relevant evidence.”32
Submissions of the parties
Submissions as to clause 13
[43] There is limited debate between the parties as to the meaning of clause 13. The IEUA submits that the words are not “legal or technical”, nor referable to or limited by any other document or act. They are to be given their ordinary meaning. Fr Pearce does not dispute this contention.
[44] The substance of the dispute between the parties is the content of the obligation to provide procedural and substantive fairness and whether Fr Pearce discharged the obligations arising from clause 13 in circumstances where he failed to provide the information sought as set out at paragraph [10] above.
[45] It is worth noting that the parties are also in dispute as to the IEUA’s submission that clause 13 was made in the knowledge of the obligations arising under the CWS Act and as such its existence is a “notorious fact”. 33
[46] I deal with this submission and Fr Pearce’s response later in the decision.
Submissions as to the obligation to afford procedural and substantive fairness
[47] The parties have referred to a number of authorities where the obligation to provide procedural fairness has been considered by the Courts and Members of the Commission. I have taken those authorities into account in coming to my decision. It is worth observing that the parties are in agreement that, in the absence of a definition, relevant material or industrial context, the reference to “procedural and substantive fairness” in clause 13.1(a) should be given its ordinary meaning in the context of the principles that have developed by the common law in Australia over many years.
[48] It is uncontroversial that the parties appear to have proceeded on the basis that the common law establishes no fixed content to the duty to afford procedural fairness and that procedural fairness is essentially a flexible obligation to adopt fair procedures that are appropriate and adapted to the circumstances of a particular case.
[49] There is no contest that Fr Pearce is in possession of information and material which has not been given to Ms Grabau. In essence, the parties differ as to how far reaching the obligation to accord Ms Grabau procedural and substantive fairness extends in the present circumstances.
[50] In support of its position, the IEUA advances the following:
• clause 13.1(a) informs “how” clause 13 is to be interpreted and, in particular, the more specific obligations in clause 13.3; 34
•
• the content of procedural fairness varies from case to case; 35
• the circumstances which bare upon the content of procedural fairness are the nature of the decision, the way in which it was made, the specific provision governing the making of the decision and the importance of the decision to the effected person such that, in the context of this case, regard should be had to “the potential consequences on Ms Grabau [which] are significant”; 36
• the alleged conduct was of sufficient severity to be “reportable conduct” as defined in section 3 of the CWS Act; 37
• the circumstances of this case “…shapes and influences the content of procedural and substantive fairness”, and “the provision of natural justice requires full disclosure of all material, and…this is provided for by clause 13 of the Agreement”; 38
• all material that is “credible, significant and relevant” ought be provided to Ms Grabau; 39
• Fr Pearce was obliged to “make full disclosure of all matters” relied on by him to make his decision; 40
• “It matters not whether or not ultimately the decision maker, in this case the Respondent, relied on or depended upon all of the material which was credible, significant and relevant but, rather, whether or not it was in their possession.”; 41
• the duty to accord procedural and substantive fairness includes a consideration of the quality and sufficiency of the material provided to Ms Grabau in the context of whether “there was sufficient material…to enable the decision maker to rely upon it in making the impugned decision”; 42
• the question of procedural fairness “…intersects to some extent with the substantive fairness…” (sic) such that in the absence of information as to the evidence relied on by Fr Pearce, “that is, the investigation report” and the “evidence to support” the Allegations, the IEUA is unable to “comment” on the obligation to accord substantive fairness. 43
• it would be an error to limit Ms Grabau’s ability to challenge the “rationality and logicality” of the decision, or make submissions as to whether or not the material was such as to be able to make good the allegations or respond to any investigation. By denying Ms Grabau the information sought, it is contended that Ms Grabau’s ability to challenge the decision is inhibited; 44 and
• there is “no compelling explanation” as to why the material requested could not be given. 45
[51] In support of its position, Fr Pearce states that:
• during the course of the investigation, Ms Grabau was provided with all the information that was adverse to her interests in order to enable her to respond to the Allegations; 46
• it is not a requirement of procedural fairness that witness summaries are provided to Ms Grabau in the investigative process; 47
• the requirement to provide Ms Grabau with an opportunity to respond to any evidence that is contrary to hers or adverse to her interests does not mandate the provision of summaries of evidence or witness statements; 48
• the requirement to provide Ms Grabau with the findings of the investigation does not include a requirement to provide the investigation report, which includes the decision makers “mental processes or provisional views”; 49
• there are good public policy reasons why detailed information arising from an investigation should not be disclosed to the parties to that process; 50
• there would be a breach of confidence to students, aged between nine and 11, if summaries of their evidence and the investigation report was provided to Ms Grabau; 51
• the CCYP Guidance stipulates that “Another important reason to keep information about the investigation confidential is to protect the integrity of the investigation. If a potential witness considers that they are unable to trust the investigator not to tell others what they have said, they may be reluctant to come forward with relevant evidence.”; 52 and
• the “significant” consequences for Ms Grabau do not elevate the standard of procedural fairness, which is to provide material that is “credible”, “significant” and “adverse”. 53
Procedural Fairness
[52] Procedural fairness traditionally involves two requirements, being the fair hearing rule and the rule against bias. The rule against bias is not relevant to this proceeding. Broadly, the hearing rule requires a person be afforded an opportunity to be heard before a decision maker makes a decision affecting their interests. While the specific content of the hearing rule varies according to statutory context it will generally require the following: prior notice that a decision will be made which may affect a person’s interests, disclosure of the critical issues to be addressed and of information that is credible, relevant and significant to the issues and an opportunity to present a case (usually in the form of a hearing).
[53] In Coutts v Close 54 (Coutts), the Federal Court set out a useful summary of the concepts of procedural fairness and natural justice in the following terms:
“114 Subject to any relevant statutory modification or variation, it is well-established that a person liable to be directly affected by an administrative decision to which the rules of procedural fairness apply must be given an opportunity of putting information or submissions to the decision-maker. For that right to have substance, the person affected must be given an opportunity of ascertaining the relevant issues, which requires the decision-maker to identify for the person affected any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The obligation extends to informing the affected person of the nature and content of adverse material that is credible, relevant and significant obtained from sources other than the affected person, as well as of any adverse conclusion reached by the decision-maker in respect of which the affected person had no notice. The affected person must be given an adequate opportunity to address such new material and/or any unexpected conclusions by further information and submission (see, for example, Kioa v West (1985) 159 CLR 550 at 628-629 (Kioa v West); Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592 (Alphaone); SZBEL v Minister of Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 162 (SZBEL) and Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 599). Generally speaking, however, and subject naturally to the particular statutory context, procedural fairness does not require that a decision maker adopt an “open file” policy which would have the effect of disclosing every submission or piece of evidence to an affected party (see, for example, Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 (South Sydney City Council)). Ultimately, the fundamental issue here is whether the applicant was given a reasonable opportunity to address issues relevant to his interests.
115 In some circumstances, procedural fairness may also require the decision-maker to disclose to the affected person information provided to the decision-maker by a third party which is relevant to the matters in issue even though the decision-maker says that the information was not taken into account in reaching an adverse decision (see in particular Applicant VEAL). As Brennan J commented in Kioa v West at 629:
Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.” (emphasis in original)”
[54] Further, in Coutts, after discussing the circumstances of the case, the Court stated: 55
“116 (…)Although the authorities generally refer to the significance of adverse material not being disclosed, the failure to disclose exculpatory material may in appropriate circumstances constitute procedural unfairness (see, for example, Shields v Overland (2009) 26 VR 303 at [109] per Kyrou J where emphasis was placed on the situation where a decision-maker has exclusive knowledge of specific information).
117 In my view, these principles need to be balanced with the well-established rule that there is no obligation to disclose the decision-maker’s deliberative processes or proposed conclusions (see Alphaone at 590-591 and Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 69 per Gleeson CJ and Hayne J). As the High Court explained in SZBEL at 162, procedural fairness ordinarily requires “the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material” (citing Alphaone at 32, emphasis omitted).
118 Further, in my opinion, the general requirement that adverse material which is credible, relevant and significant to the decision to be made does not mean that a decision-maker must always disclose verbatim copies of material to be considered. In some circumstances, it is sufficient if the affected person is informed of the gravamen or substance of the issue. The point is illustrated by Pilbara Aboriginal Land Council Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539. In that case, Merkel J rejected an argument that the Minister had denied the Pilbara Land Council of procedural fairness in not providing the Council an opportunity to deal with adverse observations made by an assessment team in a report to the Minister prior to the Minister deciding not to recognise the Council as the representative body for the purposes of native title legislation. At [70], Merkel J stated the general principle as follows (omitting case references):
While the general rule is that a decision-maker is not obliged to comment on his or her preliminary views before making a final decision or to enable a party that is likely to be adversely affected by those views to address them prior to a decision being made, on some occasions the line between the views and conclusions of a decision-maker and the material on which they are based may be a fine one. The overriding principle is that the decision-maker must bring to the applicant’s attention the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it…It is sufficient that the gravamen or substance of the issue or factor is brought to the applicant’s attention, or that the applicant is on notice of its “essential features”….
119 In Pilbara, Merkel J held that there was no obligation to disclose the internal assessment team report because it did not raise any new matters or provide any obviously unnatural responses to, or evaluations of, matters that had previously been raised with the Land Council. Justice Merkel applied the same principle in Walton at 357, where his Honour also added at [70] that, in the particular circumstances, there was no procedural unfairness in not disclosing to the affected person information “which was not material or adverse to his interests”.
120 It is also now settled that procedural fairness is not an abstract issue; rather, attention needs to be focused on the question whether conduct which is said to be procedurally unfair produced some practical injustice. As Gleeson CJ observed in Lam (2003) 214 CLR 1 at 14:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. (emphasis added).”
Consideration
[55] In essence, the point of contention is whether the material referred to at paragraph [10] above, should be provided to Ms Grabau as part of the process for “managing employment concerns” outlined at clause 13 of the Agreement. The resolution of the dispute turns ultimately upon the proper construction of clause 13 of the Agreement against the backdrop of the largely uncontested factual matrix set out earlier above and the application of orthodox principles of construction. The principles that apply to the task of construing an enterprise agreement were summarised by a Full Bench of the Commission in Berry. I adopt and apply the principles in Berry in this decision without restating them.
[56] The interpretation of an enterprise agreement begins with a consideration of the ordinary meaning of the relevant words. The resolution of a dispute over the interpretation of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose. Context may appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement is made. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome.
[57] Clause 13 of the Agreement has been reproduced at paragraph [15] above. Outside of clause 13, there is little to be gleaned from the context of the provisions of the Agreement that provides assistance in the interpretation of clause 13. The heading of clause 13 identifies the subject matter of the provision as being “managing employment concerns”. That the clause seeks to govern the management of employment concerns is not controversial. The title is followed by clause 13.1 which is headed “procedural and substantive fairness to apply”, following which the clause relevantly states, at 13.1 (a), that “the principles of procedural and substantive fairness shall underpin the application of procedures under this clause”. Clause 13.1(b) mandates the right of an employee to be accompanied by a union representative or other support person at all stages of the process “whose role is to support and advise the Employee, ensure natural justice is afforded…”. Clause 13 1(c) relevantly states that the procedures under the clause must be followed prior to “terminating employment… issuing a warning or taking any other disciplinary step.” Clause 13(d) provides that “Concern” means “concerns which would warrant the taking of any of the actions stated in clauses 13.4 or 13.5” including concerns regarding an Employee’s performance, conduct and/or capacity.
[58] Clauses 13.3 is headed “the formal meeting” and provides relevantly at clause 13.3(a) that “at the meeting the employee will be provided with an opportunity to seek clarification or respond to…(i) the Concern(s)…(iii) any investigation arising from the Concern(s)… [and] (iv) any proposed course of action”.
[59] Clause 13.5 is headed “Outcomes” and relevantly provides at clause 13.5(a) that before making a decision to take one of the steps in clause 13.5(b) (being warnings, removal from position of leadership or termination), the employee be provided an opportunity to respond.There appears to be little to be gleaned from the remainder of clause 13 with respect to the resolution of the dispute.
[60] The parties did not dispute that the words of the Agreement are to be given their ordinary meaning, nor was it seriously suggested that the words in the clause or the terms of the Agreement more generally are ambiguous or capable of more than one meaning. I do not consider that clause 13 when considered in context and having regard to the terms of the Agreement more generally is ambiguous or capable of more than one meaning. I accept that there is room for some debate about how the concepts of procedural and substantive fairness are to be applied in any given case, but this does not make the provision itself ambiguous.
[61] A large part of Fr Pearce’s case is confined to the content of procedural fairness as it pertains to the application of clause 13, with reference to the three questions that I have been asked to arbitrate. Both parties agree that question 1 is confined to whether Ms Grabau was denied “procedural fairness” as required by clause 13.1. The IEUA appears to address the three questions to be arbitrated by reference to the terms of the Agreement and paragraph 2 of the amended submissions as to the scope of the arbitration. This paragraph relevantly provides that:
“The Dispute concerns the scope of clause 13 with respect to procedural and substantive fairness (see in particular sub-clause 13.1(a)) for the purposes of providing Ms Grabau with an opportunity to respond to Concerns (as that term is defined in the Agreement), any investigation arising from the Concerns and/or any proposed outcome under clauses 13.3 and 13.5 (respectively). Clause 13.1(a) of the Agreement provides that:
“The principles of procedural and substantive fairness shall underpin the application of procedures under [clause 13]” ”
[62] As stated earlier, the IEUA adopts a broader interpretation than Fr Pearce, noting in particular what Counsel for the IEUA described as an intersection between the obligations of procedural fairness and substantive fairness. 56 That said, Counsel for the IEUA accepted that it is not for me to determine whether Allegation 1, on the balance of probabilities, occurred, 57 but rather whether the disciplinary process itself was in accordance with the requirements of clause 13.
[63] There is also no contest between the parties that the term “procedural and substantive fairness” in clause 13.1(a) is not defined and that common law principles are relevant in construing the content of the obligation to afford procedural and substantive fairness.
[64] Broadly, procedural fairness involves a consideration of the fairness by which a decision is made and not the fairness, overall, of the decision, and substantive fairness involves a consideration of the fairness of the outcome. Given the scope of this dispute, in particular the questions posed for arbitration, and the evidence before me as to the “proposed outcome”, the fairness of an “Outcome”, particularly one that has not been finalised has limited bearing to the resolution of this dispute.
[65] As is evident from the authorities referred to at paragraphs [53] and [54] earlier, the fairness of the procedure depends on the nature of the matters in issue and, as stated by Mason J in Kioa v West, “the expression “procedural fairness”…conveys the notion of a flexible obligation to adopt fair procedures which are adapted to the circumstances of the particular case” 58. Ultimately, the concern of the law is to avoid “practical injustice”.59
[66] It is uncontroversial that sufficient detail of the allegations and the context within which they are made ought be provided to permit an informed response. In some cases, this may involve the provision of witness statements, questions posed to witnesses and the provision of medical reports. In other cases, documents such as investigation reports need not be provided. 60 Ultimately, it involves consideration of the particular circumstances and the “concern of the law…to avoid practical injustice”.61
[67] The IEUA submits that the obligation to accord “substantial fairness” includes a consideration of whether there was “sufficient material” or the material is “of such quality to enable the decision maker to rely upon it in making the impugned decision” and that a relevant consideration is that Fr Pearce has made “serious and substantial” allegations against Ms Grabau (including the report to the CCYP). 62 Further, I note that the IEUA appears to adopt other positions as to the extent of the obligation of disclosure, namely that:
• “all matters or all material” considered by the decision maker are required to be disclosed; 63
• all matters which are credible significant and relevant” to the decision and in the possession of the decision maker are required to be disclosed; 64 and
• any material which is “credible significant and relevant”, regardless of whether it was relied upon or in their possession, are required to be disclosed. 65
[68] It follows, according to the IEUA, that the “material” the subject matter of this dispute, identified at paragraph [10] above, is within the meaning of the obligation to accord procedural and substantive fairness.
[69] It is worth noting at this juncture that the IEUA also submits that, relevant to the interpretation of clause 13, is the requirement to report the conduct to the CCYP in accordance with the provisions of the CWS Act. It is suggested by the IEUA that the existence of the CWS Act is a “notorious fact” and should form “part of the industrial context”. The IEUA contends that it flows from the industrial context of the CWS Act that “the obligation to provide procedural fairness extends to include the provision of all materials”. 66
[70] To the extent that the IEUA suggests that the CWS Act is relevant to assist in determining the proper meaning of clause 13, I make the following observations. First, whilst I accept that in some cases, in construing an enterprise agreement, regard may be had to extrinsic material, in this case, I agree with Fr Pearce that there was no evidence before me as to what the parties had in mind when the Agreement was made. Further, I also accept Fr Pearce’s contention that, even if the CWS Act was to form part of the industrial context, the effect would be contrary to the IEUA’s objects as it actively discourages the sharing of information, particularly in circumstances involving children.
[71] Given the analysis of clause 13 referred to earlier at paragraphs [57] to [60], it is in my view apparent that, in a general sense, the focus of the clause is to set out the procedural scope of the management of employee concerns. I have set out above the respective positions of the parties, noting that Fr Pearce posits a narrow approach to the content of the obligation to afford “procedural and substantive fairness” pursuant to clause 13 whereas the IEUA favours a broader interpretation, relying in particular on the term “substantive” to expand the obligation of procedural fairness. I have had regard to the parties’ submissions and have answered the questions as follows.
Question 1 – clause 13.1
[72] As discussed above, clause 13.1 sets out a number of obligations that govern the management of employment concerns. I have set out at paragraph [15] above the contents of clause 13.1 and need not restate it. I agree with the IEUA that clause 13.1(a) “…could either be underpinning or a chapeau…” and “informs how [clause 13] is to be interpreted…there is the obligation in 13.1 in a general sense”. 67
[73] On that basis, the sub-questions posed for arbitration under question one must all be answered “no”. It is evident that clause 13.1 imposes obligations that are not relevant to the five sub-questions posed in question 1. Whilst clause 13.1(a) provides that procedural and substantive fairness underpins the entirety of clause 13, this does not, of itself, create a distinct obligation or requirement emanating from clause 13.1(a) to provide Ms Grabau the information sought by the IEUA but instead operates to underpin the operation of clause 13. I agree with Counsel for the IEUA that it is an obligation “in a general sense”. As a result, the answer to each of the sub-questions must be “no”.
Question 2 – clause 13.3
Question 2a. – dates of interviews
[74] It is uncontroversial that the level of information required to be provided in accordance with procedural and substantive fairness depends upon the circumstances of the particular case. I am satisfied that that Fr Pearce was required to disclose the dates interviews were conducted. Such information is “credible, relevant and significant”. In any event, I note that on 29 November 2019 68 and 11 December 201969 (and confirmed in writing on 13 February 2020)70, Ms Grabau was provided with dates that interviews were conducted with witnesses and Student D. To the extent that further information exists as to dates of witness interviews these ought to have been disclosed to Ms Grabau to allow her to respond and seek clarification.
Questions 2b and 2c – questions to put to witnesses and detailed summary of evidence
[75] As stated earlier, there is no rule requiring the provision of questions put to witnesses or a detailed summary of witness evidence. However, I am satisfied that, in this case, this information ought to have be disclosed to Ms Grabau to in accordance with clause 13.3.
[76] In coming to this conclusion, I have had particular regard to the following:
• there is a contest between the parties as to an oral summary of evidence of the witnesses said to have been provided to Ms Grabau during the meeting on 11 December 2019. Ms David says she noted that the “majority of students stated that [Student D] was “grabbed” or “yanked”…contrary to Ms Grabau’s claims, I did not say there was any evidence that she had pulled [Student D] by the hair”; 71 Ms Grabau disputes this and says “At no point was any detail or proper outline put to me about what the student said they saw and who said it.” And notes that Ms David made reference to pulling of hair being mentioned.72 Neither party chose to cross examine witnesses and as such it is difficult for me to resolve this factual contest;
• a contemporaneous file note of this conversation is in evidence and reflects that while Ms David provided some explanation of evidence given by witnesses, this explanation could not be characterised as “a detailed summary of evidence”; 73
• The witnesses in this case are children of the age of 11 or younger and as such may be particularly vulnerable to suggestive or leading questions. In the present circumstances, I agree with the IEUA’s submission that “questions which have been put to the students…[are] as important as their answers”; 74 and
• CCYP guidelines as to confidentiality and privacy when dealing with investigations into reportable conduct involving children are intended to ensure investigation integrity and the protection of witnesses who might otherwise be reluctant to come forward. 75
[77] In my view, the capacity of Fr Pearce to undertake an investigation involving confidential and sensitive matters, particularly those relating to young children, must be balanced against the obligation imposed by clause 13.1 to accord Ms Grabau with procedural and substantive fairness. I note that Fr Pearce provided the names of the students who were the witnesses to the Allegations and the name of Student D to Ms Grabau. Importantly, for the present purposes, the identities of those involved in the investigation, in my view, should not be compromised any further. As such, any summary of witness evidence and questions put to those witnesses ought, in my opinion, be appropriately redacted to protect the identities of the witnesses.
Question 2d. – whether Student D was medically assessed
[78] The IEUA contends that this information is required to be provided as Fr Pearce found that Ms Grabau had caused “significant harm” to Student D and was considered by Fr Pearce reportable conduct for the purposes of the CWS Act. Fr Pearce contends that this information is not “adverse” to Ms Grabau and it would only be if Student D had been medically assessed and this assessment was adverse to Ms Grabau that she would be entitled to be provided with the outcome of the assessment. I am not satisfied that confirmation on whether Student D was medically assessed is “adverse” to Ms Grabau and “credible, relevant and significant” to the investigation nor am I satisfied that it is required to be provided to Ms Grabau in order to comply with the obligations imposed by clause 13. I do not accept the IEUA’s contention that Fr Pearce is required to provide “full disclosure” of material or “all matters or all materials” considered or in Fr Pearce’s possession.
Question 2e. – investigation report
[79] There is some contest between the parties as to if or when the “formal meeting” for the purposes of clause 13.3 was held. In essence, the IEUA contends that the formal meeting could not have occurred by reason of Fr Pearce’s failure to accord procedural and substantive fairness pursuant to clause 13.1. 76 Fr Pearce disputes this and contends that the formal meeting occurred on 11 December 2019. In support of its submission, Fr Pearce points to a letter sent by Ms David on 4 December 2019 which foreshadowed the matters to be discussed on 11 December 2019 as well as the file note of the meeting itself.77
[80] I do not accept the IEUA’s proposition that an alleged failure to accord procedural and substantive fairness under clause 13.1(a) has the effect suggested. The occurrence of the formal meeting under clause 13.3 is, in my view, not conditional upon the satisfaction of the requirement for procedural and substantive fairness under clause 13.1(a). Such an interpretation is not supported by the text of the Agreement. For completeness, I note that the mere occurrence of the formal meeting does not necessitate a conclusion that clause 13.3 has been satisfied. Having considered the material before me, I am satisfied that the formal meeting occurred on 11 December 2019.
[81] I note that Fr Pearce made submissions that it is “disingenuous” of the IEUA to argue that Ms Grabau was denied the opportunity to “seek clarification or respond to the Concern(s)” in circumstances where she did not “raise the issue” until after 11 December 2019. 78 I am not persuaded by this submission and agree with the IEUA that the obligation to afford procedural fairness is not contingent upon a request being made.
[82] I note that Ms David gives unchallenged evidence that she commenced drafting the investigation report on 12 December 2019. 79 It follows that the investigation report, which was not in existence at the time of the formal meeting, could not in any event be provided.
[83] For completeness, and in the event that I am wrong regarding the date of the formal meeting, I have considered the obligation to provide the investigation report. The IEUA contends that the investigation report is a matter taken into account by Fr Pearce in making his decision that is adverse to Ms Grabau and therefore must be provided. 80 The IEUA in its submissions emphasises the distinction between the deliberations of Ms David, as the investigator who prepared the report, and Fr Pearce, the employer and decision maker who received the report.81 Fr Pearce contends, in essence, that there is no obligation to disclose the investigation report as there is no requirement that the “deliberations and explanations set out in an investigation report” be provided and that the obligation only requires the disclosure of findings of the investigation.82
[84] As discussed above, there is no inherent requirement to provide the entirety of an investigation report in matters involving alleged misconduct. Further, I note in Coutts that Griffiths J observed that “procedural fairness does not require that a decision maker adopt an “open file” policy which would have the effect of disclosing every submission or piece of evidence to an affected party” 83and that “ the general requirement that adverse material which is credible, relevant and significant to the decision to be made does not mean that a decision-maker must always disclose verbatim copies of material to be considered. In some circumstances, it is sufficient if the affected person is informed of the gravamen or substance of the issue.”84I agree with the IEUA that it is “irrelevant” whether Ms David or CEM had provided investigation reports in previous unrelated cases. I note that the findings of the investigation report were provided to Ms Grabau on 31 January 2020.
[85] I am not satisfied that the obligations imposed by clause 13.3 are such that the investigation report need be provided in order to allow Ms Grabau to seek clarification or respond to the concerns, the investigation of the concerns or any proposed course of action. I respectfully adopt the observations of Griffiths J that a decision maker need not disclose “verbatim” copies of material and it may be sufficient if the affected person is informed of “the gravamen or substance of the issue”. In these circumstances, I am satisfied that there is no “practical injustice” to Ms Grabau in Fr Pearce not providing the investigation report.
Question 3 - clause 13.5
[86] The parties are also in dispute as to when or if Fr Pearce advised Ms Grabau of the reason for and the proposed course of action for the purposes of clause 13.5. As stated above with respect to clause 13.3, the IEUA contends that Ms Grabau could not have been advised of the reason for and the proposed course of action for the purposes of clause 13.5 by reason of Fr Pearce’s failure to accord procedural fairness pursuant to clause 13.1. With respect to this submission, I adopt my reasoning at paragraph [80] above.
[87] Fr Pearce submits that Ms Grabau was advised of the reason for and the proposed course of action for the purposes of clause 13.5 across three occasions, being 31 January 2020, 6 February 2020 and 13 February 2020.
[88] There is no contest that Ms Grabau received correspondence from Ms David, on 31 January 2020 and 13 February 2020, the contents of which have been set out earlier in this decision. It is also not in contest that a meeting took place on 6 February 2020 at which Ms Grabau was asked to give her response to the proposed outcome. I note that the mere occurrence of Fr Pearce advising Ms Grabau of the reason for and the proposed course of action does not necessitate a conclusion that clause 13.5 has been satisfied. Having considered the material, I am satisfied that Fr Pearce advised Ms Grabau of the reason for and the proposed course of action for the purposes of clause 13.5 across three occasions, being 31 January 2020, 6 February 2020 and 13 February 2020.
[89] For the reasons set out at paragraphs [74] to [77] above, I have determined that the obligation imposed by clause 13.5 requires the provision to Ms Grabau of the questions put to the witnesses, the dates of the interviews and a detailed summary of the evidence relating to what each witness said.
[90] For the reasons set out at paragraphs [78] and [83] to [85] above, I have determined that the obligation imposed by clause 13.5 does not require the provision to Ms Grabau of confirmation of whether Student D medically assessed and the investigation report.
[91] For completeness, I note that Fr Pearce submits that the obligation under clause 13.5 is limited to providing Ms Grabau with “the reason for the proposed course of action; and the course of action itself”, and that the ordinary meaning of the words favour a finding that clause 13.5 does not create an obligation to provide the information sought by Ms Grabau. As stated at paragraph [59] above, clause 13.5 is headed “Outcomes” and obligates Fr Pearce to “advise” Ms Grabau of the “reason for and the proposed course of action, and provide the Employee with an opportunity to respond”. In essence, Fr Pearce posits a position that 13.5 be interpreted in isolation without regard to the broader context of the clause itself. In my view, the interpretation advanced by Fr Pearce is “narrow and pedantic” 85and does not have regard to the broader context of the Agreement and clause 13. I am satisfied that, when examined in the context of the whole of clause 13, in order to be able to respond to the proposed course of action and the reason for the proposed course of action, Ms Grabau is entitled to material identified previously in my decision.
[92] Accordingly, the questions to be arbitrated should be answered as follows:
1. Was Ms Grabau denied procedural fairness as required by subclause 13.1 of the Agreement because the Respondent refused to provide her with:
a. the dates that each of the witnesses were interviewed - No
b. the questions put to the witnesses - No
c. a detailed summary of evidence relating to what each witness said - No
d. confirmation of whether the student that was the subject of the allegation was medically assessed in relation to the incident - No
e. the investigation report referred to in Ms David’s letter dated 31 January 2020 - No
2. Has Ms Grabau been provided an opportunity to seek clarification or respond to the Concern(s), the investigation arising from the Concerns and the proposed course of action, as required by cl. 13.3 of the Agreement, in circumstances where the Respondent has refused to provide Ms Grabau with:
a. the dates that each of the witnesses were interviewed - No, to the extent that any dates have not yet been provided
b. the questions put to the witnesses - No
c. a detailed summary of evidence relating to what each witness said - No
d. confirmation on whether the student that was the subject of the allegation, was medically assessed in relation to the incident - Yes
e. the investigation report referred to in Ms David’s letter dated 31 January 2020 - Yes
3. Has Ms Grabau been provided an opportunity to respond to the Respondent’s proposed course of action to issue her with a warning as required by cl. 13.5 of the Agreement in circumstances where the Respondent has refused to provide Ms Grabau with:
a. the dates that each of the witnesses were interviewed – No, to the extent that any dates have not yet been provided
b. the questions put to the witnesses - No
c. a detailed summary of evidence relating to what each witness said - No
d. confirmation on whether the student that was the subject of the allegation was medically assessed in relation to the incident - Yes
e. the investigation report referred to in Ms David’s letter dated 31 January 2020 - Yes
[93] The IEUA made submissions that, if I determined Ms Grabau was denied procedural fairness, “the findings that she was guilty of the first allegation ought be set aside and…the material requested be provided to her”. 86 In the circumstances of this matter, I do not consider it appropriate to make any orders. The answering of the questions posed for arbitration by consent resolves this dispute.
COMMISSIONER
Appearances:
Mr E. White of Counsel for the IEUA
Mr D. Proietto of Lander & Rodgers for Fr Pearce
Hearing details:
16 July 2020 (by Microsoft Teams)
Final submissions:
14 September 2020 – IEUA
21 September 2020 – Fr Pearce
Printed by authority of the Commonwealth Government Printer
<PR723466 >
1 Clause 4(a) of the Agreement. Fr Pearce is an employer identified in Appendix 10 of the Agreement.
2 Witness Statement of Barbara Grabau dated 6 May 2020 (First Grabau Statement) at [2],
3 First Grabau Statement at BG-1.
4 PR721686.
5 Amended Submissions Regarding Scope of Arbitration by Consent at [3].
6 [2017] FWCFB 3005.
7 [2014] FWCFB 7447 at [19] – [40].
8 Chronology of Key Procedural Events Under Clause 13 of VCEMEA.(Agreed Chronology)
9 Witness Statement of Julie David dated 29 May 2020 (David Statement) at JD – 3.
10 Agreed Chronology; Witness Statement of Amy Spencer dated 6 May 2020 (First Spencer Statement) at [5] – [6]; David Statement at [22] – [24].
11 Witness Statement of Amy Spencer dated at AS – 02.
12 First Spencer Statement at AS – 03.
13 David Statement at [38].
14 First Grabau Statement at [16] - [19]; David Statement at [44].
15 David Statement at [44(b)(i)].
16 David Statement at [44(b)].
17 David Statement at [44(b)(iv)].
18 David Statement at JD-7.
19 David Statement at [49]; Third Grabau Statement at [10].
20 David Statement at [51] – [53].
21 David Statement at [54].
22 David Statement at [54], [56].
23 David Statement at [56] – [57].
24 David Statement at JD – 9.
25 David Statement at JD – 10.
26 David Statement at JD – 11; First Spencer Statement at AS – 05.
27 David Statement at JD – 12.
28 David Statement at JD – 13.
29 David Statement at JD – 14.
30 David Statement at [80].
31 Ibid.
32 David Statement at [82] citing CCYP Guidance at page 19.
33 Applicant’s Outline of Reply dated 11 June 2020 (IEUA’s Reply Submissions) at [18].
34 Transcript PN351, PN353.
35 Applicant’s Amended Outline of Argument dated 20 May 2020 (IEUA’s Amended Submissions) at [23].
36 IEUA’s Amended Submissions at [25].
37 IEUA’s Amended Submissions at [28], [32].
38 IEUA’s Amended Submissions at [33].
39 IEUA’s Amended Submissions at [34].
40 Ibid.
41 Ibid.
42 IEUA’s Reply Submissions at [5].
43 Transcript PN937.
44 IEUA’s Reply Submissions at [10].
45 IEUA’s Amended Submissions at [41].
46 Respondent’s Outline of Submissions dated 29 May 2020 (Fr Pearce’s Submissions) at [19].
47 Fr Pearce’s Submissions at [25].
48 Fr Pearce’s Submissions at [25].
49 Fr Pearce’s Submissions at [29] citing Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [74ff]. See also: Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2.
50 Fr Pearce’s Submissions at [32].
51 Ibid.
52 Fr Pearce’s Submissions at [31] citing David Statement at JD – 1.
53 Transcript PN796.
54 [2014] FCA 19 at [114] – [115].
55 Ibid at [116] – [120].
56 Transcript PN937.
57 Transcript PN430.
58 Kioa v West (1985) CLR 550 at [585].
59 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [37].
60 See for example: Frijters v The University of Queensland [2016] FWC 2746 at [344] where Bissett C considered, amongst other things, information provided to the investigator by another staff member during the investigation that was not put to the Applicant denied him procedural fairness; McKenzie v Liddell Colleries Pty Limited [2017] FWC 590 at [38] where Saunders C (as he was then) determined not providing an investigation report did not constitute a denial of procedural fairness; Australian Rail, Tram and Bus Industry Union v Rail Commissioner[2019] FWC 3944 at [146] where Hampton C determined that actual copies of the evidence were required to be provided (subject to appropriate redactions); Zink v Townsville Hospital and Health Service [2019] QIRC 181 at [97] – [98] where Thompson IC determined it was not necessary to provide (amongst other things) copies of unredacted witness statements, transcripts, original complaints and terms of reference for the investigation.
61 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [14].
62 IEUA’s Reply Submissions at [5], [7].
63 IEUA’s Amended Submissions at [34].
64 IEUA’s Amended Submissions at [35].
65 IEUA’s Amended Submissions at [34].
66 Transcript PN499.
67 Transcript PN351.
68 David Statement at [27(a)]
69 David Statement at [44].
70 David Statement at JD – 12.
71 David Statement at [44(b)].
72 First Grabau Statement at [17].
73 David Statement at JD – 6.
74 Transcript PN361.
75 See for example: David Statement at JD – 1.
76 Applicant’s Submissions on clause 13.3 and clause 13.5 dated 14 September 2020 at [8].
77 Respondent’s Further Submissions as to clauses 13.3 and 13.5 dated 21 September 2020 at [4] – [8].
78 Fr Pearce’s Submissions at [39].
79 David Statement at [51].
80 Transcript PN457 – PN458.
81 IEUA’s Reply Submissions at [13].
82 Fr Pearce’s Submissions at [30].
83 Coutts at [114].
84 Coutts at [118].
85 Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447 at [20] citing Kucks v CSR Ltd (1966) 66 IR 182.
86 IEUA’s Amended Submissions at [43].
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