Louise Hay v Ambulance Victoria

[2019] FWC 978

[2019] FWC 978

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.739—Dispute resolution

Louise Hay
v
Ambulance Victoria
(C2018/5586)

COMMISSIONER WILSON MELBOURNE, 19 FEBRUARY 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] Through an application to the Fair Work Commission made on 17 January 2019, Ambulance Victoria seeks the Fair Work Commission dismiss Louise Hay’s application alleging a dispute arising under an enterprise agreement (the Dismissal Application). Ms Hay has now made several applications in respect of her employment with Ambulance Victoria and a dispute which has arisen relating to allegations of misconduct on her part. Ms Hay’s employment is covered by the Ambulance Victoria Enterprise Agreement 2015 (Varied and Extended) (the 2015 Agreement). 1

[2] Four notices of alleged dispute have been filed by Ms Hay as follows:

• First Dispute Application – C2018/3278, commenced on 15 June 2018 and which was the subject of a conciliation conference before me on 25 June 2018. The application indicates the dispute resolution clause is within clause 9 and the dispute “relates” to clause 60, Disciplinary Process. The relief stated in the application as being sought by Ms Hay included potential orders for the production of certain documents, and for the revocation of directions by Ambulance Victoria that the matters associated with its allegations against her and the investigation of her conduct be kept confidential. No orders of either nature, or in any other form were made by the Commission from that application. There has been no determination by the Commission on any matter associated with the application, or on the matter of whether the proposed orders are within the Commission’s jurisdiction. The matters dealt with in the conference included the provision of various information to Ms Hay regarding the matters available to an investigation into her conduct as well as her capacity to access a summary of the investigation’s findings at the time such were concluded.

• Second Dispute Application – C2018/5586, commenced on 6 October 2018, and which is the vehicle for this decision. The application indicates the dispute resolution clause is within clause 9 and the dispute “relates” to clause 60, Disciplinary Process, and “especially clause 60.6”. The relief stated in that application as being sought by Ms Hay was for several orders to be made in respect of documents to be provided which had been requested on 6 April 2018; Ms Hay to be provided with a full copy of the investigators report; continuation of Ms Hay’s usual remuneration without attendance until determination of proceedings in the Commission have been concluded; compensation for lost remuneration as a result of removal from her usual duties and stand down; and compensation for legal costs. This matter was the subject of a single conciliation conference before me held on 7 November 2018 after which the matters alleged to be in dispute were not resolved. The alleged dispute was commenced shortly after Ms Hay had been required to respond to correspondence from Ambulance Victoria seeking that she show cause as to why her employment should not be terminated. There has been no determination by the Commission on any matter associated with the application, or on the matter of whether the proposed orders are within the Commission’s jurisdiction.

• Third and Fourth Dispute Notifications 2 – filed on 1 February 2019 and on 12 February 2019. These notifications endeavour to ensure that if one of Ambulance Victoria’s objections succeeds, Ms Hay’s application remains alive; the particular objection being related to whether it is permissible for Ms Hay’s dispute to be raised and progressed under clause 9 of the Agreement. The 1 February and 12 February 2019 notifications are said to relate to clause 60 of the Agreement and are “about” “a decision to dismiss the applicant for serious and wilful misconduct”. The relief stated includes an interim urgent order preventing dismissal and for the application of procedural fairness to Ms Hay. There has been no conciliation of these notifications. The interim order sought is to the effect of “restraining AV from giving effect to the termination decision of Mr Rogers until the further order of the Commission”.3 Mark Rogers is Ambulance Victoria’s Chief Operating Officer. This request on the part of Ms Hay is referred to as the Interim Order Application.

[3] Ambulance Victoria’s Dismissal Application seeks alternative orders from the Commission pursuant to s.587(1) of the Act for the reason that a lack of jurisdiction on the part of the Commission means at least the Second Dispute Application and potentially the Third Dispute Application would have no reasonable prospect of success.

[4] This decision concerns the Dismissal Application made by Ambulance Victoria and the Interim Order Application made by Ms Hay.

[5] Peter Hull, solicitor, from Hull and Associates appeared for Ms Hay and Mr Nicholas Harrington instructed by Victorian Government Solicitors Office appeared for Ambulance Victoria. Permission for each party to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Fair Work Act 2009 (Cth) (the Act), with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)).

[6] The context to each of the applications made by Ms Hay is as follows:

• On 2 October 2017 Ms Hay attended an incident as a MICA paramedic where a 15 year old boy had suffered a cardiac arrest due to an intentional hanging resulting in death. A subsequent review of Ms Hay’s conduct was undertaken by Ambulance Victoria which concluded on 20 November 2017 with concerns raised about Ms Hay’s behaviour and clinical practice at the incident. Ms Hay was placed on alternative duties as of 30 November 2017 while Ambulance Victoria undertook a further review of Ms Hay’s behaviour and clinical practice during the incident, which was opposed by Ms Hay.

• The review found that allegations of misconduct regarding Ms Hay’s professional conduct should be been made against her and as a result Ms Hay was formally advised on 14 March 2018 that she would be suspended on full pay while an independent external investigator at Workforce Legal Solutions conducted a formal review into whether the allegations of misconduct could be substantiated.

• Ms Hay was interviewed as part of the investigation on 28 June 2018 after which the final report and formal investigation process was concluded on 30 August 2018. The report recommended that Ms Hay be terminated for reason of serious and wilful misconduct in accordance with clause 60.5 of the 2015 Agreement. This was communicated to Ms Hay on 24 September 2018, who was given an opportunity to show cause as to why she should not be terminated, which was taken up by her. On 7 February 2019 the decision was ultimately made and communicated to Ms Hay that Ambulance Victoria proposed to terminate her employment for serious and wilful misconduct once its application in Commission to dismiss Ms Hay’s various applications had been dealt with.

[7] The disciplinary process against Ms Hay has progressed under clause 60 of the 2015 Agreement which is relatively short and in the following terms:

“PART 8- DISCIPLINARY PROCEDURE

60. DISCIPLINARY PROCESS

60.1 Where disciplinary action is necessary, the management representative shall notify the employee of the reason. The first warning shall be oral and will be recorded on the employee's personal file.

60.2 If the problem continues the matter will be discussed with the employee and a second warning in writing will be given to him/her and recorded on his/her personal file.

60.3 If the problem continues the employee will be seen again by management. If a final warning is to be given then it shall be issued in writing and a copy sent to the relevant Union.

60.4 In the event of the matter recurring, then the employee may be terminated. No dismissals are to take place without the authority of senior management.

60.5 Dismissal of an employee may still occur for acts of "serious and wilful misconduct".

60.6 If a dispute should arise over the disciplinary action, other than termination of an employee who has not completed at least six months service with the employer, the course of action to be followed is that the matter shall be referred to Fair Work Commission for resolution. Such resolution shall be accepted by the parties as final.

60.7 If after any warning, a period of twelve months elapses without any further warning or action being required, all adverse reports relating to the warning must be removed from the employee's personal file.”

[8] The Dismissal Application argues two alternative matters:

“1. Pursuant to s.587(1) of the Fair Work Act 2009 (Cth) (the FW Act), an order dismissing the Respondent’s (Ms Hay) substantive application (the Dispute Notification) because no disciplinary action of the kind with which clause 60.6 of the Ambulance Victoria Enterprise Agreement 2015 (Varied and Extended) (Agreement) is concerned:

(a) has been taken, and therefore clause 60.6 of the Agreement is not enlivened; and

(b) by reason of (a) above, there is no jurisdiction in the Commission to resolve the Dispute Notification pursuant to clause 60.6 of the Agreement.

2. In the alternative to 1. above, pursuant to s.587(1) of the FW Act, and in the event the Commission determines the Dispute Notification is within jurisdiction (which is denied), an order dismissing the Dispute Notification because the Commission has no jurisdiction to hear and determine any dispute arising under clause 60.6 of the Agreement, which is concerned with a disciplinary action in the form of a dismissal for serious and wilful misconduct pursuant to clause 60.5 of the Agreement.” 4

[9] The first part of the Dismissal Application relates to sub-clause 60.6, which on its face provides that there can be no dispute about the termination of an employee. Factually of course there has not been a termination of Ms Hay’s employment at this time. It is argued by Ambulance Victoria that to date there has been no “disciplinary action” taken of the kind envisaged by sub-clause 60.6.

[10] The second part of the Ambulance Victoria’s Dismissal Application is an assertion that there is no jurisdiction to deal with the matters presently before the Commission since the alleged dispute “is concerned with a disciplinary action in the form of a dismissal for serious and wilful misconduct”.

[11] As presently argued, there are three grounds advanced for the alternatives put forward by Ambulance Victoria.

[12] Firstly, the conjunction of clause 9 and Clause 60 means there is no dispute for the Commission to hear, with it being contended that “the clause 9 dispute process cannot be invoked where clause 60 reposes jurisdiction in the Commission for a stand-alone disputes/complaints process”.

[13] Clause 9 is entitled “resolution of disputes and grievances”. Succinctly stated the relevance of clause 9 is that the clause permits disputes to be raised under it “unless otherwise provided for in this agreement”. As such, it is argued, clause 60 is “a stand-alone dispute resolution procedure in relation to disputes concerned with disciplinary action taken as part of a disciplinary process”. Since clause 60 sets out a dispute process to use in relation to disputes about disciplinary matters it is argued there is no jurisdiction to be derived from clause 9 to hear and determine this dispute. Such exercise of power as a private arbitrator as the Commission may have in relation to Ms Hay’s dispute is to be exercised pursuant to clause 60 of the 2015 Agreement alone. 5

[14] Secondly, given that Ambulance Victoria has formed the view that Ms Hay’s conduct amounts to serious and wilful misconduct “the Commission lacks jurisdiction to adjudicate any dispute under clause 60.6 concerning the particular dismissal if Ms Hay is dismissed for serious and wilful misconduct”. 6 It is argued that the meaning of sub-clause 60.6 is to be ascertained only through reference to sub-clause 60.5. That latter clause permits Ambulance Victoria “to dismiss in a very limited context – serious and wilful misconduct” with it then being said that because of the express authorisation given within clause 60.5 “any jurisdiction conferred upon a private arbitrator must be read subject to such a carve out or exclusion”.7 It is postulated that if sub-clause 60.6 were to be construed as giving jurisdiction to apparent or agitated disputes about a dismissal that such would be in conflict with sub-clause 60.5 which permits that dismissals “may still occur” for reason of serious and wilful misconduct.8

[15] Thirdly, it is argued that should it be found that sub-clause 60.5 of the 2015 Agreement provides a jurisdiction for a private arbitrator to hear and determine a dispute concerning dismissal arising out of serious and wilful misconduct, and since sub-clause 60.6 provides that the Commission’s private arbitration of the matter “shall be accepted by the parties as final” the construction of the sub-clause would lead to the conclusion that the finality provided is an endeavour to oust the jurisdiction of a dismissed employee under Part 3 – 2 of the Act dealing with unfair dismissal. 9 In turn this would necessarily lead to a finding that the provisions of sub-clause 60.5 were an unlawful term within the meaning of s.194(d) which defines an unlawful term as “a term that excludes the application to, or in relation to, a person of a provision of Part 3 – 2 (which deals with unfair dismissal), or modifies the application of such a provision in a way that is detrimental to, or in relation to a person;”. The consequence of such findings is argued to be that the sub-clause would be unenforceable and incapable of creating jurisdiction for the Commission.10

[16] Ms Hay contests each of these submissions arguing there is jurisdiction for the Commission to proceed with her application.

[17] In relation to the first of Ambulance Victoria’s objections, she submits that while a disciplinary process is set out within sub-clause 60, “Matters connected with the implementation of the disciplinary process are matters arising under the Agreement, and to that extent may properly fall within the clause 9 dispute resolution clause”. 11 Mr Hull argued on her behalf that the limiter at the start of clause 9, to the effect that the clause has operation “[u]nless otherwise provided for in this Agreement” does not give rise to an operative limitation since the thing provided for by clause 60 is a decision, when what is in dispute in this matter is a process:

“… the sub-clause 60.6 dispute process is limited to disputes about decisions by AV to invoke disciplinary action, in the sense of sanctions or punishments. It does not prevent the exercise by the Commission of arbitral power under clause 9 in relation to the processes that lead up to such decisions.” 12

[18] As to the contention that sub-clause 60.5 deals exclusively with dismissal for acts of “serious and wilful misconduct”, Ms Hay submits the argument is misconceived and that, read in context, sub-clause 60.5 deals with dismissals that do not require an extended process of warnings, etc. After restating that the meaning of “disciplinary action” requires construction in accord with orthodox principles having regard to the context and purpose of the term and the 2015 Agreement as a whole, the following was submitted about the term and clause:

“27. Clause 60, under the heading “Disciplinary Process”, outlines steps for disciplinary action:

(a) sub-clauses 60.1 to 60.3 provide for notifications and warnings including a potential final warning; and

(b) sub-clause 60.4 provides “[i]n the event of the matter recurring, then the employee may be terminated”.

28. Sub-clause 60.5 states that “[d]ismissal of an employee may still occur for acts of “serious and wilful misconduct”. Read in context, sub-clause 60.5 is concerned to provide a process for dismissal that does not require at least 3 prior warnings. It is consistent with traditional practice, distinguishing between serious and wilful misconduct justifying immediate dismissal and less serious conduct or performance issues where termination is not justified without prior warnings and opportunity to improve.” 13

[19] The product of this consideration is said to be that clause 60.6 contemplates disputes over disciplinary action which may include termination of employment, with it being argued that “[n]othing in the language of sub-clause 60.6 is concerned with the reason for a dismissal”. 14

[20] On the matter of sub-clause 60.6 being a potential unlawful term since it purports to require the parties to the private arbitration arising under the clause to accept it “as final”, Ms Hay argues that the clause does not and cannot exclude the operation of Part 3-2 of the Act. She notes that only a current employee may invoke a dispute under the clause, and that an unfair dismissal application may only be commenced after a termination of employment; 15 and further arguing:

“Clause 60.6 therefore enables an application to the Commission, and gives the Commission arbitral power in relation to, any decision to take disciplinary action against an employee of AV. It does not however give rise to arbitral power in relation to a dismissal which has taken effect (and as to which the Commission may have jurisdiction to determine an application under Part 3-2 of the FW Act).” 16

[21] It is acknowledged that the alleged dispute before the Commission arises under an enterprise agreement and that the construction of the agreement requires the Commission to give a plain meaning to the words derived from their industrial context.

[22] Interpretation of an enterprise agreement requires construction of the words of the instrument, with the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 17 setting out the principles for such a task. In that matter, and after an extensive analysis of the subject, the Full Bench held that construction of an agreement will turn on the language of the agreement having regard to its context and purpose with context appearing from the text of the agreement viewed as a whole; the disputed provision’s place and arrangement in the agreement; and the legislative context under which the agreement was made and in which it operates.18 Amongst other matters, the Full Bench also held that:

“The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.” 19

[23] There is presently no extrinsic material before the Commission that would assist the task at hand which requires consideration of two clauses, clause 9 and clause 60. Neither party has argued to the Commission that either clause is ambiguous or that its construction requires interpretation having regard to documents or evidence dealing with negotiation of the clause.

[24] I turn now to consideration of the three grounds advanced within Dismissal Application.

[25] The contention advanced on behalf of Ms Hay, to the effect that disputes associated with the implementation of the disciplinary process are matters arising under the Agreement and therefore may properly fall within the scope of the clause 9 dispute resolution term is attractive at some level, however overlooks both the limiter at the start of clause 9, that the clause operates “[u]nless otherwise provided for in this Agreement” as well as the specific provisions of sub-clause 60.6.

[26] Given the detailed, prescriptive stepped processes of clause 9, as well as the detailed, prescriptive stepped processes of the wider clause 60, it is difficult to arrive at a proposition that does not find that sub-clause 60.6 creates a separate and distinct dispute resolution procedure to that within clause 9. The clauses are intended for different purposes.

[27] Clause 9 sets out a discussion process for collective disputes, grievances or matters arising under the Agreement or the National Employment Standard, but NOT for the circumstances in which such disputes are otherwise provided for in the Agreement. The limiter plainly is not to be viewed as redundant wording; it must have some work to do.

[28] The stepped processes within clause 9 include an obligation to endeavour to deal with a matter through the Ambulance Victoria internal dispute or grievance resolution process “[i]f the dispute or grievance falls within” its scope (cl. 9.5(a)). Ten days is allowed for conduct of the internal process (cl. 9.5(c)). If not settled through the internal process, it may be dealt with through further prescribed processes. If the internal processes lead to a situation in which there has not been discussion with the immediate supervisor or a more senior manager then such is required; if not, or if not settled, application may be made to the Commission for conciliation (cl. 9.6(c)). If conciliation fails, there may then be arbitration (cl 9.7 – 9.8).

[29] Clause 60 provides an overall and otherwise comprehensive process. There shall be notification to an employee if disciplinary action is necessary, in which the first warning may be oral (cl 60.1). If the matter continues, there may be a second warning, followed by a final warning, and if the matter recurs, the employee may be terminated (cl 60.2 – 60.4). Within this sort of procedurally fair, but nonetheless process-rich context, could one reasonably expect that disputes about any of the essential elements also have to be agitated through the stepped process in clause 9? If that were the case, instead of disciplinary action being timely and effective, it would likely become disreputably untimely and complicated as well as something to be avoided.

[30] There is plainly a connection between the steps in the first parts of the wider clause (cl 60.1 – 60.4) and the penultimate part of the sub-clause, 60.6, which deals with disputes on the subject of the clause, by which I take to be the whole of clause 60. The first four sub-clauses establish a process that would be familiar to most employees and all supervisors and managers and likely viewed by most workplace participants as being a fair balance between the interests of employees and managers – you will be given up to three chances to correct poor performance or conduct and after that you may well be dismissed. The connection between those first four sub-clauses and sub-clause 60.6 is readily apparent – if a dispute arises over one of more of the things dealt with in the first part of the clause, then it shall be referred to the Commission for resolution. Those things may well be disputes over the necessity of disciplinary action or whether the employee has been notified (cl 60.1); whether “the problem” has continued and whether the matter has been discussed with the employee (cl 60.2); whether the problem has continued beyond the first two occasions and whether the employee has been “seen again” (cl 60.3); and, in the event of a further repetition whether it is the case of “the matter recurring” and whether the “authority of senior management” has been given for dismissal (cl 60.4).

[31] There is plainly within the whole of clause 60 the intention not only to provide procedural fairness, but a process by which disputes may be quickly and decisively dealt with. That mandated process is for the matter – being a dispute over the disciplinary action, other than termination – to be referred to the Commission for resolution.

[32] Sub-clause 60.5 simply states that “[d]ismissal of an employee may still occur for acts of "serious and wilful misconduct"”. That term plainly has meaning beyond a re-statement of the employer’s common law rights. It is likely the proper construction of the clause is as a bridge between the process of the first four sub-clauses, of being given up to three chances to correct poor performance or conduct and only after that the likelihood of dismissal, and the potential for the most serious of cases to face immediate dismissal, and not merely an oral warning, and then upon repetition a second warning, etc.

[33] I agree with Ambulance Victoria that clause 9, the resolution of disputes and grievances clause, is to be construed in the way it contends; the face of sub-clause 9.1 plainly establishes that what is therein set out does not have application if something else is provided elsewhere in the Agreement. For practical effect, if clause 60 provides for a procedure for the agitation of disputes relating to disciplinary action, then clause 9 has no operative effect. As a result, I concur with the proposition put forward by Ambulance Victoria that the Commission must exercise its power as a private arbitrator in relation to disputes over disciplinary action within the confines of clause 60 of the 2015 Agreement alone. 20

[34] The second of Ambulance Victoria’s objections is to the effect that “the Commission lacks jurisdiction to adjudicate any dispute under sub-clause 60.6 concerning the particular dismissal if Ms Hay is dismissed for serious and wilful misconduct”. 21

[35] The First Dispute Application was stated to be “about” 22 matters; Ms Hay’s history of employment and the situation attended by Ms Hay and others in which a youth suicided; the subsequent case review report, complaint and allegations and review of her clinical practice; and finally the investigation of allegations misconduct by Ms Hay and steps she saw as necessary to provide her with fairness, as well as concerns she had about being directed to maintain confidentiality about the complaints against her. As stated above, the relief she sought included potential orders for the production of certain documents and the revocation of directions by Ambulance Victoria that matters associated with its allegations against and investigation of Ms Hay’s conduct be kept confidential.

[36] The Second Dispute Application is stated to be “about” four matters:

“1. The background to this matter was the subject of a dispute notification made by the applicant on 17 June 2018. At the core of the dispute is the applicant’s conduct when she attended a 15 year old boy’s suicide by hanging on 2 October 2017.

2. The matter that arose from that application was matter number C2018/3278. The applicant wishes to refer to and will rely on that application and the documents submitted with that application.

3. The applicant has now received notice from the respondent dated 24 September 2018 that it has concluded she is guilty of serious and wilful misconduct because of her conduct when she attended the 2 October 2017 suicide. The respondent in that notice invited the applicant to show cause why her employment should not be terminated.

4. On 6 October 2018 the applicant’s lawyer replied to the show cause invitation on the applicant’s behalf and included a separate response from the applicant. The applicant rejected the respondent’s contention that she was guilty of serious and wilful misconduct. She does so on the basis that, at their highest, the matters in issue concerned her clinical practice and judgment, not her conduct and behaviour.” 22

[37] The relief stated in that application as being sought by Ms Hay included an interim urgent order preventing dismissal and for the application of procedural fairness.

[38] In contrast to the very lengthy articulation of the purpose in the First Dispute Application and the four matters in the Second Dispute Application, the Third and Fourth Dispute Notifications are stated as being in relation to just a single matter: “a decision to dismiss the applicant for serious and wilful misconduct”.

[39] What is evident from the stated content of these applications as well as the material presently before the Commission is that the disputes were, until relatively recently, connected with the process of the disciplinary procedure. What is now before the Commission is something connected almost entirely with the sanction to be imposed upon Ms Hay. Allegations about Ms Hay’s conduct have been formulated and provided to her. An investigation has been conducted and reported; Ms Hay has received and considered relevant information pertaining to the investigation. Ambulance Victoria have asked Ms Hay to show cause as to why she should not be dismissed and she has responded to that correspondence. Mr Rogers is unambiguous in his evidence that the only sanction under consideration by Ambulance Victoria is termination of Ms Hay’s employment.

[40] No matter how fair or difficult that situation may be, the fact of the matter is that Ms Hay is about to be dismissed and what is now before the Commission is something which is wholly about “termination of an employee”.

[41] Mr Hull endeavoured to draw a distinction between the process of disciplinary action and the decision to dismiss Ms Hay. He argued that while clause 60 is limited to decisions by Ambulance Victoria to invoke disciplinary action such as sanctions or punishments, there is separately an arbitral power for the Commission under clause 9 in relation to the processes that lead up to such decisions.

[42] For the reasons set out above associated with the construction of clause 60 as a whole, I do not accept this argument being advanced by Ms Hay. The dispute as presently characterised is a dispute about termination of employment, and further it is about the termination of employment of a person whose employer, Ambulance Victoria, has satisfied itself that Ms Hay has committed an act of serious and wilful misconduct. For the reason that there are now no steps for Ambulance Victoria to take in respect of any aspect of what reasonably may be viewed as disciplinary action, other than the final step in which Mr Rogers intends to take, this is now a dispute wholly about “termination of an employee”.

[43] The distinction made by Ms Hay between her capacity as a current employee to make an application under s.739 of the Act and the capacity only of an actually dismissed person to make an application for unfair dismissal remedy is plainly correct, but takes her nowhere. These are rights for different purposes established on the one hand by the Parliament in relation to the provisions of the Fair Work Act and on the other by those who agreed to the Agreement in relation to its terms. It is not unusual that an agreement may limit what may be done by those bound by its terms. The fact that an agreement limits a person’s rights – in this case to what disputes may be agitated – does not bring about a claim that fairness must allow the putative right to be exercised.

[44] It follows from this that I accept the construction advanced by Ambulance Victoria. The construction advanced by Mr Harrington for Ambulance Victoria is that, since the disciplinary action is (or will be) termination of employment for reason of serious and wilful misconduct:

“Ms Hay cannot ‘refer’ to the Commission (as private arbitrator) for final resolution a dispute over this particular disciplinary action under sub-clause 60.6 of the Agreement. The Commission has no power under sub-clause 60.6 to resolve this dispute over the specific disciplinary action.” 23

[45] The final objection raised by Ambulance Victoria relates to a claim that the provisions of clause 60.5 was an unlawful term within the meaning of s.194(d). Such is argued by Ambulance Victoria from the perspective that the term either excludes or modifies the provisions of Part 3 – 2 of the Act, (Unfair Dismissal), which is in conflict with the provisions of s.194(d) which does not permit such exclusion or modification in a way that is detrimental to a person.

[46] Mr Harrington connected the argument with the reference within clause 60.6 that once a matter is referred to the Commission for resolution, “[s]uch resolution shall be accepted by the parties as final”. He argued this matter of finality stood as a non-permitted limitation;

“29. This concept of finality (of the decision or outcome) works a limitation to the statutory jurisdiction of the Commission under Part 3-2 – Unfair Dismissal – of the FW Act. By reason of the final decision of the Commission under sub-clause 60.6, an employee is then precluded from invoking the jurisdiction of the Commission under Part 3-2 of the FW Act. The preclusion arises from the parties reposing power in the Commission as private arbitrator to finally determine the dispute.

30. If that be the proper construction of the sub-clause, and the effect of the private arbitration is such as to bind the parties in contract on the question of the merits of the dismissal, the clause thus construed ‘modifies’ the jurisdiction of the Commission to hear and determine an unfair dismissal claim. Ms Hay would be excluded from the

unfair dismissal jurisdiction. That preclusion is detrimental to Ms Hay in that it seeks to limit and thus modify the provisions in Part 3-2 of the FW Act concerned with jurisdiction: see ss.382; 385(a) and (b); s.387 of the FW Act.” 24

[47] I am not satisfied, on the construction of clause 60 to which I have referred above that such argument of invalidity is accurate. Clause 60 permits the raising and progression of disputes about disciplinary action to the point of termination of employment for an employee with 6 months or more service. It does not permit the progression of disputes past that point, and so there can be no finding of inconsistency with Part 3 – 2 as envisaged within by s.194(d).

[48] The product of this analysis is to accept the first and second objections raised by Ambulance Victoria.

[49] Clause 60 provides for a separate process for the resolution of disputes to that set out within clause 9, where the dispute deals with “disciplinary action”. Clause 60 provides a comprehensive process for matters of “disciplinary action” and unambiguously gives no right for progression of a dispute about termination of employment of an employee with 6 months or more service.

[50] There are two immediate consequences from these findings; Ms Hay’s Second Dispute Application and the Third and Fourth Dispute Notifications are without jurisdiction for the Commission to proceed, since she seeks the Commission resolve a dispute about termination of an employee; and, it follows, there is no jurisdiction for the Commission to further consider the Interim Order Application.

[51] It follows in turn from these findings that I am satisfied that Ms Hay’s Second Dispute Application and the Third and Fourth Dispute Notifications have no reasonable prospects of success and that Ambulance Victoria’s objections must be allowed. An order dismissing these matters is made at the same time as publication of these Reasons for Decision.

COMMISSIONER

Appearances:

P. Hull on behalf of the Applicant

N. Harrington of Counsel instructed by Victorian Government Solicitors Officeron behalf of the Respondent.

Hearing details:

2019.

Melbourne:

15 February.

Printed by authority of the Commonwealth Government Printer

<PR704966>

 1   AE413830-2.

 2   No separate “C” file number have been allocated, and the notifications have been progressed under C2018/5586.

 3   Exhibit A1, Applicant further submissions, dated 12 February 2019, [46].

 4   Exhibit R4, Ambulance Victoria’s Form F1 Application to Dismiss, dated 17 February 2019, Q2.1.

 5   Exhibit R3, Ambulance Victoria amended Submissions, dated 7 February 201, [21].

 6 Exhibit R4, Q2.2 [3].

 7   Exhibit R3, [23].

 8   Ibid, [24].

 9 Ibid, [28] – [31].

 10   See Fair Work Act 2009 (Cth) s.253(1)(b); Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112; 251 FCR1, [85]; Australian Industry Group v Fair Work Act (2012) 205 FCR 339; 228 IR 35; [2012] FCAFC 108, [43]-[45].

 11   Exhibit A1, [22].

 12   Ibid.

 13   Ibid.

 14 Ibid, [29] – [30].

 15   Ibid, [33].

 16   Ibid, [34].

 17   [2017] FWCFB 3005.

 18   Ibid, [114].

 19   Ibid.

 20   Exhibit R3, [21].

 21 Exhibit R4, Q2.2 [2].

 22   Exhibit A3, Form F10, dated 6 October 2018, Q2.1.

 23   Exhibit R3, [25].

 24   Ibid.