Julian Storey v Western Health

[2019] FWC 2575

[2019] FWC 2575

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Julian Storey
v
Western Health
(C2019/1339)

COMMISSIONER YILMAZ MELBOURNE, 15 APRIL 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]– whether refusal to provide witness statements denies an opportunity to respond.

[1] On 1 March 2019, Mr Julian Storey (the Applicant), represented by the Health Workers Union (HWU) filed an application under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a dispute in accordance with the dispute settlement procedure in clause 7 of the Victorian Public Health Sector (Health and Allied Services, Managers and Administrative Workers) Single Enterprise Agreement 2016-2020 (the Agreement) 1. The Applicant is engaged in the position of security officer at Western Health (the Respondent).

[2] Clause 7 (Dispute Settlement Procedure) of the Agreement provides that the “dispute settlement procedure will apply to any dispute arising in relation to this Agreement”  2. Clause 8 of the Agreement contains a sub clause that is subject to this dispute. Clause 8.3(b) (ii) states that the employer will “provide the Employee with those relevant details of the Employer concerns and allegations to enable the Employee to respond”3.

[3] On 4 March 2019 the application was allocated to my Chambers. The dispute concerns the question of whether, on a proper construction of clause 8.3(b) (ii) of the Agreement, the Applicant is entitled to the Respondent’s witness notes (in particular the notes relating to the interview of the Nurse in Charge) that were obtained during the investigative process, in order for the Applicant to respond to the allegation of serious misconduct against him.

[4] I conducted a conference with the parties on 13 March 2019. It was common ground that the matter was properly before the Commission. Both parties sought the assistance of the Commission to settle the dispute over the relief sought by the Applicant, i.e. to access the Respondent’s witness interview notes. The matter was not resolved at conference and the parties requested that the Commission deal with the matter on the papers.

[5] This matter was subject to a lengthy conference, and it was not disputed that the parties had co-operated regarding both clause 7 and 8 of the Agreement, except for the dispute over access to the witness notes obtained by the Respondent. Notwithstanding the written submissions of the Applicant, 4 where the dispute is defined more broadly than that expressed in the Form 10 and confirmed in conference, this decision will be confined to the disputed interpretation of clause 8.3(b) (ii) in respect to the provision of the witness interview notes.

Jurisdiction

[6] 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 7. The parties have complied with the steps contained in clause 7. Having regard to the information in the Form F10 application and submissions of the parties, I am satisfied that the Commission has jurisdiction to deal with the dispute, consistent with the terms of the Agreement in clause 7.4(c), including by arbitration under clause 7.7 of the Agreement. Clause 7 of the Agreement does not limit the jurisdiction of the Commission to express an opinion or recommendation or interpret the clause of the Agreement in dispute.

Background

[7] In November, the Respondent received a complaint regarding the conduct of the Applicant in an incident on 12 November 2018. The complaint was received from the husband of the patient involved in the incident.

[8] On 7 December 2018 the Respondent sent a letter inviting the Applicant to a fact finding interview. The invitation contained details of the complaint and allegations concerning the manner in which the Applicant handled the patient. The Applicant was informed that details emerging from the complaint included witness and video evidence. The Applicant was informed of his right to a support person.

[9] At the fact finding interview on 14 December 2018, the Respondent presented the Applicant with the allegations and the Applicant was invited to view the footage of the incident. During this meeting, the Applicant requested that the Respondent interview a number of people as part of the investigation.

[10] The Respondent conducted further investigations including interviewing seven other employees associated with the incident. The Respondent confirmed that it obtained notes from the witness interviews.

[11] The outcome of the investigation was communicated by letter to the Applicant on 2 January 2019. The Respondent found that the Applicant’s conduct was consistent with the allegations against him, and concluded that the conduct constituted serious misconduct. The Applicant was stood down with full pay pending a final decision concerning his employment. The Applicant was then invited to show cause why his employment should not be terminated.

[12] On 7 January 2019, the Applicant attended a show cause meeting. At this meeting the HWU was present.

[13] The HWU and the Respondent exchanged a series of letters and on 17 January 2019, the HWU sent a notice of dispute to the Respondent referring to concerns regarding the investigative process. This notice contained a series of requests for further investigation.

[14] The Respondent replied in writing to the HWU on 22 January 2019. In this correspondence, the Respondent agreed to conduct further investigations in line with the Union’s requests, despite questioning the relevance of some of the requests.

[15] Further communication between the parties occurred and on 22 February 2019, the Respondent and the HWU had a meeting where the statement made by the Nurse in Charge was communicated to the Union. An attempt was made to close the dispute; however, the Union insisted it remained in dispute.

Access to witness statements

[16] The Applicant contends that pursuant to clause 8.3 of the Agreement, a fair investigation requires the provision of the witness material for the Applicant to be in a position to fairly respond to the allegations.

[17] The Respondent contends that it complied with the investigative process as provided for in the terms of the Agreement.

[18] The question raised by the Applicant concerns the interpretation of clause 8.3(b) (ii) in so far as the Applicant argues that the provision of witness evidence is material to enable him to respond.

[19] The Respondent contends that clause 8.3(b) (ii) cannot be read to include witness evidence, as sufficient material was already presented to the Applicant that satisfies the requirement of the clause, and to afford the Applicant procedural fairness.

Relevant Agreement terms

[20] Clause 7.1(b) provides that the dispute settlement procedure will apply to any dispute arising in relation to the Agreement. The grievance or dispute relates to the investigative procedure contained in clause 8.3. The clause reads as follows:

“8.3 Investigative procedure

(a) The purpose of an investigative procedure is to conclude whether, on balance, concerns regarding conduct or performance are well-founded and supported by evidence. An investigation procedure must be fair including proper regard to procedural fairness.

(b) The Employer will:

(i) advise the Employee of the concerns and allegations in writing;

(ii) provide the Employee with those relevant details of the Employer concerns and allegations to enable the Employee to respond;

(iii) ensure the Employee is provided a reasonable opportunity to answer any concerns including a reasonable time to respond;

(iv) advise the Employee of their right to have a representative, including a HWU representative;

(v) ensure that the reason for any interview is explained; and

(vi) take reasonable steps to investigate the Employee’s response”. 5

[21] The Respondent contends that it has complied with the provisions of clause 8.3(a) and (b). The HWU disputes compliance with clause 8.3(a) and (b) on the basis that the clauses require the investigation procedure to be conducted in accordance with procedural fairness and ensuring that sufficient evidence is provided such that the Applicant is able to respond to the allegations. 6

Consideration

[22] The question of whether the Applicant is entitled to the Respondent’s notes taken during the witness interviews is dependent on whether the Respondent in this case, meets the requirements of clause 8.3. The principles that apply to the interpretation of an enterprise agreement were summarised in AMIEU v Golden Cockerel Pty Ltd (Golden Cockerel) 7 and reiterated by a Full Bench of the Commission in AMWU v Berri Pty Ltd8. Specifically, the relevant principles to this matter are:

“•  The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose;” 9 and

“•  Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.” 10

[23] Clause 8.3 of the Agreement is a detailed clause, its intention of which is to ensure that the investigation is concluded in a fair and proper manner, while ensuring procedural fairness for the employee concerned.

[24] The contentious clause, 8.3(b) (ii) reaffirms that an employee must be provided with “relevant details” of the “allegations” for the purposes of allowing a “reasonable opportunity to answer” the allegations and “respond”.

[25] Clause 8.3(b) (ii) does not refer to specific documentation, it does however, require the Respondent to meet the steps in the investigative procedure to ensure relevant details of the allegation, so that the Applicant may respond. Precedence concerning the opportunity to respond is well established and the term in the Agreement is to be applied having regard to its “context and purpose” 11. In this case, the Applicant had access to the detail of the original complaint, video evidence and information arising from the interviews of witnesses. Failure to provide the Respondent’s witness interview notes did not deny the Applicant the opportunity to defend himself against the allegations. The Applicant knew the identity of the witnesses as they were captured in video footage. The Applicant argued that it was denied procedural fairness by not receiving a copy of the witness notes. The Respondent informed the Applicant that following the re-interview process that was requested by him, the evidence obtained did not corroborate his defence.

[26] In my view, the material presented to the Applicant is reasonable in the circumstances to enable the Applicant to understand clearly the allegations against him, the evidence in support of the allegations, and further, producing the material allowed the Applicant to consider and respond. In my view, the steps taken by the Respondent satisfies the processes in clause 8.3, without the need to produce the Respondent’s witness interview notes.

[27] I do not agree with the HWU’s argument that clause 8.3(b) (ii) is to be read so broadly to include witness statements or the verbatim witness interview notes in order for the Applicant to properly satisfy itself with the allegations against him and for him to properly respond. As stated in Golden Cockerel, the task of interpreting the agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. 12 The HWU’s interpretation of clause 8.3(b) (ii) would require me to do just that.

[28] The Applicant has been provided with a reasonable opportunity to address the issues and complaint against his conduct. In my view, denial to access the witness notes is not likely to prejudice the Applicant as the non-disclosure of the verbatim witness evidence will not affect the material outcome following the investigation by the Respondent.

[29] The submissions of the Respondent included reference to the decision of Justice Griffiths in Coutts v Close 13. This case considered established precedent concerning procedural fairness and disclosure of witness evidence. Further, the Respondent relied on this decision to draw similarities, concluding that the evidence of the witness (namely the Nurse in Charge) did not present new evidence concerning the allegations relating to the incident.14

[30] I agree with the submissions of the Respondent and that the Respondent’s refusal to disclose the witness notes did not deny the Applicant procedural fairness or contravene clause 8.3(b) (ii).

Conclusion

[31] For the above reasons, the answer to the question for determination by the Commission in this case is that, clause 8.3(b) (ii) does not require the production of the witness notes obtained during the investigation; the substance of the concerns and allegations relating to the incident were provided to enable the Applicant to adequately respond and in these circumstances meets the requirements of clause 8.3(b) (ii). Accordingly, the Respondent is not required to produce to the Applicant its witness interview notes.

Final written submissions:

For the Applicant, 27 March 2019

For the Respondent, 22 March 2019

Printed by authority of the Commonwealth Government Printer

<PR707055>

 1   AE422598.

 2   Ibid section 2,clause 7.

 3   Ibid section 2, clause 8.3(b)(ii).

 4   Applicant’s submissions filed 18 March 2019 at [4]; Applicant’s submissions in-reply filed 27 March 2019 at [1(d)].

 5   AE422598 section 2, clause 8.3.

 6   Applicant’s submissions filed 18 March 2019 at [3.1].

 7   [2014] FWCFB 7447.

 8   [2017] FWCFB 3005.

 9   [2014] FWCFB 7447 at [41].

 10   Ibid.

 11   Ibid.

 12   Ibid.

 13 [2014] FCA 19.

 14   Respondent’s outline of submissions filed 22 March 2019 at [19]-[22].