Mawkes v State of Victoria (Department of Human Services)

[2006] FCA 1746

FEDERAL COURT OF AUSTRALIA

Mawkes v State of Victoria (Department of Human Services) [2006] FCA 1746

JACKIE MAWKES  -v-  STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES)

VID 328 of 2004

RYAN J
MELBOURNE
15 DECEMBER 2006

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID328 of 2004

BETWEEN:	JACKIE MAWKES Applicant
AND:	STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES) Respondent
JUDGE:	RYAN J
DATE OF ORDER:	15 DECEMBER 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.There be a declaration pursuant to s 21 of the Federal Court of Australia Act that the “Final Warning” issued to the applicant on 19 December 2003 is and was at all times void and of no effect.

2.        The application be otherwise dismissed. 

3.        There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID328 of 2004

BETWEEN:	JACKIE MAWKES Applicant
AND:	STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES) Respondent

JUDGE:	RYAN J
DATE:	15 DECEMBER 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1. The applicant, Ms Mawkes, seeks the imposition of penalties pursuant to s 178 of the Workplace Relations Act 1996 (Cth) (“the Act”), a declaration under s 21 of the Federal Court of Australia Act 1976 (Cth) and such other orders as the Court considers appropriate for the commission by the respondent, the State of Victoria (Department of Human Services) (“the Department”) of breaches of the HSUA Department of Human Services Intellectual Disability Agreement 2001 (“the Agreement”).

   Background

2. To assist with the determination of the issues in this matter, the parties have filed a statement of agreed facts.  It is common ground that the applicant commenced employment with the Department on or about 21 August 1994 and that she has been continuously employed by the Department since that date.  It is agreed that the applicant is currently employed by the Department as a Disability Services Officer Level 1 (“DDSO1”) and that she became an “on-going employee” of the Department on or about 25 March 2001. 

3. It is also common ground that the Agreement is an agreement certified by the Australian Industrial Relations Commission pursuant to s 170LT of the Act and made under Part VIB, Division 2 of the Act between the Health Services Union of Australia and the Department. It is common ground that the Agreement and the Schedule apply to the applicant.

4. By pars 11-24 of the statement of agreed facts, it was recited;

   11.By letter dated 11 June 2003, the Respondent’s Manager Disability Services, Andy Bevan informed the applicant:

   11.1that he had been advised that in the course of her employment, the applicant had engaged in conduct which, if proven to be true, constituted a breach of discipline;

   11.2that the matter would be investigated by Mr Dale Kayler-Thomson; and

   11.3that she was directed to take accrued leave pursuant to clause 8.7(c) of the Agreement.

   12.Pursuant to clause 8.7(d) of Schedule C of the Agreement the Respondent suspended the Applicant from duty with pay from 18 August 2003 until 24 October 2003.  The suspension was effected by a letter from Mr Bevan addressed to the Applicant dated 18 August 2003 and came to an end following a letter from Mr Bevan to the Applicant dated 24 October 2003.

   13.By letter dated 24 October 2003, the Respondent informed the Applicant:

   13.1 that the investigation outlined in the letter dated 11 June 2003 had concluded;

   13.2that the Respondent had decided that the Applicant should receive a final warning in relation to committing a breach of discipline by reason of committing acts of misconduct.

   14.The Respondent has not charged the Applicant with any breach of discipline in accordance with Schedule C, Item 6.2 of the Agreement.

   15.The Respondent has not conducted an inquiry as described in Schedule C, Items 8 or 9 of the Agreement.

   16. The Applicant became an ongoing employee of the Respondent on or about 25 March 2001.

   17.The Respondent directed the Applicant to attend a meeting on 19 December 2003.

   18.The Applicant and her then legal representative met with John Eyre and Rita Mc Shane for the Respondent on 19 December 2003.  The Applicant was provided with a final warning and was issued a ‘Warning Interview Report’.

   19.During the course of the meeting, the Applicant stated that:

   19.1 she had not been charged; and

   19.2the allegations made against her had not been particularised to enable a proper response.

   The Applicant made a number of notes in the section headed ‘Staff Member’s Comment’ in the Warning Interview Report, and provided the Respondent with a document titled ‘Final Warning – Written Submission 19/12/2003’

   20.The meeting on 19 December 2003 included a discussion about the Applicant returning to work, the location at which she would work and the roster options which might apply to that work.  This part of the meeting was conducted after a short break.  Rita McShane did not attend this part of the meeting.

   21.During the course of the meeting on 19 December 2003 the Applicant was:

   21.1 offered a choice of two roster lines at the Community Residential Unit at 41 Harper St, Fairfield; and

   21.2 requested to inform the Respondent as to her preferred option by 22 December 2003.

   22. The roster lines offered to the Applicant contained differences from her previous roster in respect of penalty rates and sleepover shifts.

   23.The Applicant did not respond to the Respondent’s request that she inform it of her preferred option by 22 December 2003.

   24. By letter dated 23 December 2003, the Respondent directed the Applicant to return to duty at the Community Residential Unit at 41 Harper Street, Fairfield on a roster 1 to commence on Monday 29 December 2003 at 7 a.m.’

   Grounds of application

5. The applicant filed an amended application on 30 September 2004 in which she claimed;

   ‘1. Pursuant to section 178 of the Act:

   1.1The imposition of a penalty on the respondent for breaching clause 25.4.4(d) of the Certified Agreement by not observing the rules of natural justice in that it has not provided sufficient particulars of  disciplinary allegations against the applicant to enable the applicant to know the allegations against her;

   1.2The imposition of a penalty on the respondent for breaching Schedule C, clause 6.2 of the Agreement by purporting to impose a disciplinary sanction against the applicant without laying charges against her of a breach of discipline in accordance with the procedures described in Schedule C, clause 6.2 of the Agreement.

   1.3The imposition of a penalty on the respondent for breaching clauses 8 and 9 of Schedule C to the Agreement by purporting to impose a Final Warning on the applicant without conducting a discipline inquiry as described in Clause 8 and 9 of Schedule C to the Agreement.

   1.4The imposition of a penalty on the respondent for breaching clause 16 of the Agreement.

   1.5Payment of the appropriate salary and or allowances applicable to the applicant.’

6. The resolution of the issues in this case largely turns on how Schedule C of the Agreement should properly be construed. It is appropriate to deal with these issues in the order that they have been raised by the applicant in her amended application set out at [5] above.

   Alleged breach of cl 25.5.4(d)

7. Paragraph 1.1 of the amended application asserts that the Department failed to provide sufficient particulars of disciplinary allegations against the applicant to enable her to know the case against her.  This was said to amount to a breach of the requirement to accord natural justice imposed by cl 25.4.4(d) of the Agreement.

8. Clause 25.4 of the Agreement provided:

   ‘25.4    Grievance and discipline

   25.4.1Employees shall be subject to and entitled to the benefits of the grievance and discipline procedure as set out in this clause and Schedule C.

   5.4.2The parties share a commitment to ensure that where practicable, employee grievances are resolved at the workplace level as expeditiously as possible, without the need to resort to formal grievance processes under the principal award. This does not diminish the employee's rights in relation to the existing agreement grievance resolution process.

   25.4.3 Management at the local level shall respond within 14 days to endeavor to resolve the issue. Where this does not occur within the 14 days, then the 14 day lodgment period required under Schedule C shall commence from the end of 14 days after the employee sought to resolve the grievance with management.  Where management has responded but the matter remains unresolved, the 14 day lodgment period shall commence from the date of management’s response.

   25.4.4The parties agree that localised procedures will be developed and documented for workplace managers, employees and their representatives. Those procedures will relate to all employee grievances, other than those that arise in relation to a selection or promotional decision.

   25.4.4The parties agree that the following principles are essential to the early and lasting resolution of employee grievances:

   25.4.4(a)open and positive communication by all parties involved;

   25.4.4(b)a recognition and support for the employee's right to be assisted and represented in the process by a HACSU representative or other person of the employee's choice;

   25.4.4(c)early response timelines;

   25.4.4(d)observance of the rules of natural justice;

   25.4.4(e)commitment to be non-judgmental and to focus on speedy resolution of the grievance in a manner acceptable to all parties concerned,

   25.4.5HACSU will ensure that it identifies and trains local representatives to assist its members/employees with the grievance resolution process.

   25.4.6Representatives will be afforded certain rights in carrying out their functions. These will include:

   25.4.6(a)paid time to assist employees raise and resolve the grievance and to attend training on conflict and grievance resolution;

   25.4.6(b)access to the employer's facilities such as telephone, photocopying and facsimiles;

   25.4.6(c)assurances that their employment circumstances shall not be changed or otherwise discriminated against by reason that he/she is or has been a representative or has performed any functions to assist in the resolution of employee grievances.

   25.4.7Reference to the Commission

   Matters which remain in dispute at the completion of the grievance and discipline procedures may be referred to the Commission for resolution by HACSU or the employer.’

9. The material facts upon which the applicant relies in support of this allegation are substantially admitted by the Department in pars 11-13 of the agreed statement of facts which are reproduced at [4] of these reasons.  In the applicant’s submission, the obligation to accord natural justice embodied in cl 25.4.4(d) is applicable to all aspects of the disciplinary procedure in the Agreement and Schedules including the grievance and discipline procedure set out in cl 6 of Schedule C to the Agreement which prescribes certain consequences for “Breach of discipline”. 

10. For the Department on the other hand, it was contended that the various sub-clauses in cl 25.4 in their ordinary meaning signify that the expression “employee grievances” is confined to means grievances initiated by employees so that cl 25.4.4(d) is limited to the resolution of grievances of that kind.  Therefore, because the applicant does not allege any failure to observe the rules of natural justice in relation to an employee-initiated grievance but confines her complaint to acts done in the administration of employee discipline, her reliance on cl 25.4.4(d) is misconceived.

11. I agree that cl 25.5 of the Agreement is confined in its application to employee grievances.  That view is borne out by the fact that the sub-clause finds its place in cl 25 which carries the general heading “DISPUTE SETTLEMENT” and deals generally with the “introduction of change” and the resolution of disputes arising therefrom at the instance of an “aggrieved employee” (cl 25.2.1).  Clause 25 also provides a mechanism for the resolution of grievances related to the classification of employees (cl 25.3) and those related to roster changes (cl 25.5).

12. Viewed in that context, cl 25.4 of the Agreement obliges the Department to observe the rules of natural justice when attempting to achieve a resolution of grievances of the kinds identified in other sub-clauses of cl 25 being grievances of employees arising from employer-initiated changes and particularly those related to classifications and rosters.  The agreed statement of facts reveals that the applicant’s complaint did not arise from any proposed change in her roster or classification or otherwise in her working conditions.  Rather, her grievance was that she had improperly been subjected to a disciplinary procedure in respect of some alleged act or acts of misconduct or “breach of discipline”.

13. Although cl 25.4.1 incorporates by reference the “grievance and discipline procedure” set out in Schedule C, that incorporation has the effect only of making that procedure applicable, as far as it is capable of applying, to employee grievances of the kind with which cl 25 as a whole is concerned.  Since the applicant has not asserted any grievance of that kind, it follows that her application for imposition of a penalty for contravention of cl 25.4.4(d) cannot be sustained.

    Alleged breach of Schedule C, cll 6.2, 8 and 9

14. The applicant next alleged that the Department had contravened cl 6.2 of Schedule C, by “…purporting to impose a disciplinary sanction against the applicant without laying charges against her of a breach of discipline”.  A related allegation was that the Department had contravened cll 8 and 9 of Schedule C by “… purporting to impose a Final Warning on the Applicant without conducting a discipline inquiry as described in clause 8 and 9 of Schedule C of the Agreement”.

15. Clause 5 of Schedule C to the Agreement provided;

    ‘5Authority of The Employer

    The Employer is responsible for the discipline of staff members in accordance with the provisions of this Schedule.’

16. Clause 6 of the same Schedule described what may constitute a breach of discipline and ordained a mode of charging an employee with such a breach by providing;

    ‘6.1A staff member who –

    (a)contravenes or fails to comply with –

    (i)a provision of the Public Sector Management and Employment Act; or

    (ii)a lawful instruction of the Employer or a person having the authority to give the instruction; or

    (iii)a provision of the Code of Conduct issued by the Commissioner for Public Employment; or

    (b)is negligent or careless in the discharge of his or her duties; or

    (c)commits any act of misconduct; or

    (d)is inefficient or incompetent through causes within his or her own control–

    commits a breach of discipline and is liable to disciplinary action in accordance with the provisions of this Schedule.

    6.2If the Employer has reason to believe that a staff member has committed a breach of discipline, the staff member may be charged in writing with that breach of discipline.  Each charge shall outline in writing the facts, dates and other matters, which constitute the alleged breach of discipline.’

17. Clause 8 of Schedule C obliged the employer, in the event of an employee’s being charged with a breach of discipline, to hold an inquiry in accordance with the procedures laid down in sub-cll 8.2 and following.  Clause 8 was in these terms;

    ‘8Discipline inquiry

    8.1If a staff member has been charged with a breach of discipline, the Employer must hold an inquiry to determine whether the staff member is liable to disciplinary action.

    8.2Notice in writing of an inquiry, setting out the grounds on which the staff member is charged with an alleged breach of discipline, must be given to the staff member.

    8.3The staff member must be provided with at least 7 days notice of an inquiry.

    8.4Nothing in this Schedule prevents the making of any preliminary investigation to the holding of an inquiry.

    8.5A person is not eligible to conduct an inquiry in relation to a charge if he or she –

    (a)participated in investigating or furnished a report in respect of any of the matters alleged to constitute the breach of discipline to which the charge relates; or

    (b)charged the staff member with the breach of discipline.

    8.6A staff member charged with a breach of discipline –

    (a)may be assisted or represented in the inquiry by an agent including a legal practitioner; and

    (b)must be afforded reasonable opportunity –

    (i)to be present during the course of the inquiry; and

    (ii)in the course of the inquiry to question persons making allegations against the staff member or providing information in support of the allegations; and

    (iii)to bring persons or documents before the inquiry to provide information in support of  the staff member, and

    (iv)to make statements and representations to the inquiry.

    8.7On beginning an investigation or an inquiry into an alleged breach of discipline, the Employer may take one or more of the following actions by notice in writing to the staff member –

    (a)transfer the member to other duties at existing salary;

    (b)with the approval of the Head of another Department, transfer the staff member to a position in that other Department at the same or a similar level of salary;

    (c)direct the staff member to take any accrued leave entitlements;

    (d)suspend the staff member from duty with pay, or, following consultation with the Commissioner for Public Employment, without pay.’

18. Clause 9 of Schedule C provided for a range of disciplinary sanctions which might be imposed following an inquiry under Schedule C by stipulating;

    ‘9        Determination of the inquiry

    9.1If, following an inquiry, under this Schedule, the person conducting the inquiry is satisfied on the balance of probabilities that the staff member has committed a breach of discipline, that person may make one or more of the following determinations –

    (a)issue a reprimand;

    (b)impose a fine not exceeding $1,000.00;

    (c)transfer the staff member to another position in the Department or, a position in another Department with the approval of the Department Head of that Department, at the same or a similar level of salary;

    (d)reduce the staff member in classification and salary;

    (e)reduce the staff member in salary;

    (f)dismiss the staff member.

    9.2Determinations made under paragraph 9.1 must provide for an operative date of effect.

    9.3If the person conducting the inquiry finds that the charge has not been proved –

    (a)any suspension against the staff member relating to the charge expires;  and

    (b)if the staff member has been suspended without pay, an amount equal to the pay the member would have received during that period of suspension must be paid to the member;  and

    (c)if the staff member has been directed to take leave, the member must be credited with any leave taken at that direction.

    9.4Within 14 days after the conclusion of the inquiry, the staff member must be provided with notice in writing of the findings of the inquiry and any determinations made under paragraph 9.1.’

19. It was common ground, as appears from pars 14-19 of the statement of agreed facts, that no charges were laid against the applicant and that no inquiry was undertaken pursuant to cl 8.  It is also agreed that the applicant was given a “Final Warning” and was issued with a “Warning Interview Report”.

1. In the applicant’s submission, where, as in the present case, an investigation into allegations of misconduct has resulted in preliminary findings that an employee may have committed a breach of discipline, the procedure mandated by sub-cll 6.1 and 6.2 of Schedule C requires that the employee be charged in writing with those breaches and that an inquiry be held pursuant to cl 8 before taking any of the forms of disciplinary action prescribed by cl 9.

2. Mr Forbes of Counsel for the Department contended that the decision whether or not to charge an employee with a breach of discipline is in the discretion of the employer.  That interpretation was said to be supported by the use in cl 6.2 of the permissive “may be charged” rather than the mandatory “shall” or “must be charged”.  It followed, according to Counsel for the Department, that there could be no charge under cl 6.2 unless the employer had formed the requisite belief and exercised the discretion to lay a charge.  Only when there had been an affirmative decision to lay a charge, so the argument went, would there be an obligation to set out, in writing, the particulars required by cl 6.2.

3. I accept the Department’s contention to the extent that there was no obligation on the employer under cl 6.2, upon accepting that there was reason to believe that a breach of discipline had been committed, to charge the employee in writing with that breach of discipline.  Without seeking to limit the range of discretionary factors which might militate against that course, it is sufficient to instance, as a discretionary reason for not taking it, the employer’s perception that the breach of discipline was trivial or was outweighed by the employee’s positive contribution to the work of the department concerned.  However, once the employer had made an affirmative decision to charge a staff member with a breach of discipline, it followed from the use of the mandatory “shall” in the last sentence of cl 6.2 that the employer was obliged to furnish, in writing, particulars of the alleged breach of discipline.  Thus, whether there has been a contravention of cl 6.2 depends on whether the Department made an affirmative decision to charge the applicant with a breach of discipline.

   Did the employer decide to charge the applicant with a breach of discipline?

4. The applicant invited an affirmative answer to this question because, she submitted, a “disciplinary sanction” had been imposed upon her both during the course of, and after, the Department’s investigations into the allegations against her.  The following actions were identified as “disciplinary sanctions”:

   ·    The direction that she take accrued leave and the subsequent direction that she be suspended with full pay during the Department’s investigation.

   ·    The investigation itself.

   ·    The issue of a “Final Warning” to the applicant on 19 December 2003.

   ·    The direction on 19 December 2003 that the applicant not be permitted to return to the Simon Crescent CRU where she had worked before to the investigation.

5. Mr Forbes submitted that no “disciplinary sanction” had been imposed upon the applicant.  Although he acknowledged that cl 6.1 of Schedule C contained a reference to “disciplinary action” he contended that the Schedule must be read as a whole in order to understand the connotation of the phrase “disciplinary action” appearing therein.  So understood, “disciplinary action” as contemplated by cl 6.1 could only be imposed by a hearing officer who was satisfied on the balance of probabilities, after an inquiry, that the staff member had committed a breach of discipline and could only take the form of one of the types of action enumerated in cl 9.1 of Schedule C.

6. It is convenient to examine separately, and in order, each of the matters said by the applicant to constitute a “disciplinary sanction”.

   (i)       Direction that the applicant take accrued leave and the subsequent direction that she be suspended with full pay

7. The applicant submitted that her “exclusion” from the workplace pursuant to the Department’s direction that she take accrued leave and her subsequent suspension in the course of the Department’s investigation were “disciplinary sanctions”.  On the other hand, it was submitted on behalf of the Department, the direction that the applicant take accrued leave from 11 June to 18 August 2003, was not disciplinary action.  Rather, it was a direction pursuant to cl 8.7(c) of Schedule C.  Moreover, it was said that all accrued leave taken pursuant to that direction had been credited to the applicant after the Department had exercised its discretion not to charge her with a breach of discipline.  That assertion has not been disputed by the applicant.

8. Similarly, Counsel for the Department submitted that the direction that the applicant be suspended on full pay from 18 August to 24 October 2003 was not disciplinary action but was a direction pursuant to cl 8.7(d) of Schedule C made by the employer on beginning an investigation into an alleged breach of discipline.

9. At the hearing of the application Mr Andy Bevan, Manager Disability Services within the Department (“Mr Bevan”), gave evidence that in some cases it may be appropriate for an employee to remain in the workplace during an investigation.  However, Mr Bevan deposed that, in respect of the applicant, it was decided, because of the nature of the allegations which were to the effect that she had acted in a way which potentially put clients at risk and raised issues of trust and confidence related to the handling of cash on the premises as well as the animosity perceived to exist between the applicant and some other staff members, to direct the applicant to take accrued leave while the investigation was being carried out.

10. In my view, cl 8.7 of Schedule C makes clear that the power, amongst others, to direct a staff member to take accrued leave entitlements or to suspend the staff member from duty with pay, was exercisable “on beginning” either an investigation or an inquiry into an alleged breach of discipline.  The reference in that sub-clause to an “investigation”, in contradistinction to an “inquiry”, is to something anterior to the decision to hold an inquiry.  That is borne out by cl 8.7 which provides that nothing in Schedule C “prevents the making of any preliminary investigation to the holding of an inquiry” (emphasis added).  See also cl 8.5, which precludes a person who has participated in investigating matters alleged to constitute a breach of discipline to which a charge relates from being eligible to conduct an inquiry in relation to that charge (emphasis added).  Since the “sanctions” enumerated in cl 9.1 can only be imposed following an “inquiry”, it follows that action authorised to be taken before such an inquiry cannot be a sanction of that kind.

    (ii)      Preliminary investigation

11. The applicant also submitted that the preliminary investigation by Mr Kaylor-Thompson was a “disciplinary sanction” and was really an inquiry under another name.  It was submitted that the Department was in breach of its obligations under cll 6 and 8 of Schedule C to afford the applicant the right to receive a written list of charges and an opportunity to respond to those charges before disciplinary action was taken.  On the other hand, the Department submitted that the initiation of a preliminary investigation was not disciplinary action.  This argument drew on the clear distinction made in cl 8.4 of Schedule C between a preliminary investigation and an inquiry and was said to be supported further by the absence of anything in the Agreement or the Schedule to suggest that a charge must be laid before a preliminary investigation can be commenced.

12. Clause 8.4 of Schedule C unambiguously stipulates that “Nothing in this Schedule prevents the making of any preliminary investigation to the holding of an inquiry.”  In my opinion, the commencement and conduct of a preliminary investigation into alleged breaches of discipline is an appropriate course of action before the laying of any charge.  This is borne out by the facility afforded by cl 8.7 of Schedule C “on beginning an investigation or an inquiry” (emphasis added) to transfer the staff member concerned to other duties or to another department, to direct him or her to take accrued leave or to suspend the staff member with or without pay.

    (iii)     Final Warning

13. The applicant contended that the “Final Warning” issued to her on 19 December 2003 was a “disciplinary sanction” which had been imposed because the Department had concluded that she had been guilty of acts of misconduct.  That course, according to the applicant, was only open to the Department if it first followed the disciplinary procedure laid down by cll 6, 8 and 9 of Schedule C. 

14. In a related way the applicant argued that a “Final Warning” was equivalent to a reprimand under cl 9 in that it was a consequence of a finding of misconduct.  It was also pointed out that a “Final Warning” has serious disciplinary consequences because the staff member to whom it is administered becomes liable to instant dismissal in the event of a further transgression.

15. According to the applicant, the Department decided to administer the “Final Warning” to her as a device to circumvent the disciplinary procedure laid down by Schedule C.  The adoption of that device, she claimed, was motivated by a desire to avoid the full range of procedural steps ending with a hearing in the Industrial Relations Commission and did not result from a perception that the applicant had not committed any misconduct to which the code applied.  This contention was said to derive support from the following excerpt of an email dated 24 October 2003 from Mr John Eyre, Manager, Sector D, Community Residential Services, Northern Metropolitan Region to Mr Bill Little and Ms Rita McShane;

    ‘Notwithstanding clear evidence that Ms Hawkes [sic] has breached the code of conduct, the decision to recommend a written warning rather than going to hearing with charges was in the main based on issues with our practices and processes that would more likely attract criticism if the process ended up in the IRC.   I am keen to address the identified process issues as a matter of priority to ensure the program area does manage performance and discipline matters in a more timely and appropriate way.’

16. Counsel for the Department contended, on the other hand, that the “Final Warning” issued to the applicant was not disciplinary action.  Consistently with the proper construction of Schedule C in the context of the Department’s long-standing practice, the issue of a warning to an employee does not amount to “discipline” within the terms of the Agreement.  This construction was said to be reinforced by the fact that the issue of a final warning is not one of the determinations that a person conducting an inquiry can make pursuant to cl 9.1 of Schedule C.  The word “reprimand” in that sub-clause, so the argument went, is not synonymous with “final warning” which does not appear in the relevant parts of the Agreement and Schedule C. 

17. Mr Forbes referred to ss 20(1) and 20(2)(b) and (c) of the Public Sector Management and Employment Act 1998 (Vic) in support of the submission that Schedule C did not displace the implied right of an employer to administer a warning to an employee or the corresponding obligation of an employee to receive and comply with such a warning. Nor, in the Department’s submission, did Schedule C displace the employer’s statutory right under s 20(2)(c) of that Act to issue instructions to employees which must be observed.

18. It is self-obviously true that an employer has the power to issue directions, including warnings, however designated, extending to “last” or “final” warnings, in an attempt to regulate staff conduct or extract improved performance.  However, once it has been decided to take a step which is provided for under the code constituted by the Agreement and Schedule C to govern the investigation, determination and punishment of alleged misconduct, any action taken by way of implementing that decision must accord with the procedure mandated by that code.Had it been followed in the present case, the applicant would have been able to avail herself of the administrative safeguards which the codified procedure entails. 

19. As already indicated, I acknowledge the force of the assertion by Counsel for the Department that a “Final Warning” will not always be synonymous with a reprimand within the meaning of cl 9.1(a) of Schedule C.  However, in a case like the present, where an employee has been alleged to have engaged in conduct constituting a breach of discipline and the investigation culminates in a “Final Warning”, that warning is the disciplinary consequence of a finding of misconduct and is a “reprimand” under another name.

20. Once it could be seen that a “Final Warning” would partake of the character of a disciplinary sanction, it was not open to the Department to administer it without laying a charge in writing, holding an inquiry with appropriate notice and otherwise complying with the applicable requirements of the Agreement and Schedule C.  That included the requirement to observe the rules of natural justice which was embodied in cl 25.4.4(d) of the Agreement and made applicable to the discipline procedure set out in Schedule C.  This construction of the Agreement and Schedule C accords, I consider, with the principle applied by Dixon J in relation to conferral of a specific power in the well-known passage in The King v Wallis;  Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529, at 550. His Honour there said;

    ‘But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s.38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.

    This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction. In North Stafford Steel, Iron and Coal Co. (Burslem), Ltd. v. Ward [(1868) LR 3 Ex 172, at p 177], Willes J. refers to “the ordinary rule, that if authority is given expressly, though by affirmative words, upon a defined condition, the expression of that condition excludes the doing of the Act authorized under other circumstances than those defined.”’

21. Because it has been acknowledged in pars 14 and 15 of the agreed statement of facts reproduced at [4] of these reasons that the Department had not charged the applicant with any breach of discipline or conducted an inquiry as described in Schedule C, Items 8 and 9 of the Agreement, it follows that the imposition of the “Final Warning” was ultra vires and a breach of the Agreement. I therefore regard it as appropriate, pursuant to s 21 of the Federal Court of Australia Act 1976, to make a declaration to that effect.

    Direction that the Applicant return to duty at Harper Street, Fairfield CRU

22. The applicant next contended that the direction that she return to duty at the Harper Street, Fairfield CRU (“Harper Street CRU”) was a “disciplinary sanction”.  The relevant facts sufficiently appear at pars 21-24 of the statement of agreed facts reproduced at [4] of these reasons.  However, the applicant supplemented those facts by claiming that, at the meeting on 19 December 2003, she had expressed a desire to return to the Simon Crescent, Greensborough CRU (“Simon Crescent CRU”) but the Department refused to entertain her request.  She pointed out that the rosters offered were significantly different and disadvantageous when compared with those under which she had worked until 11 June 2003.  The applicant claimed that she would have earned approximately $10,000 less per annum under the rosters offered than under her previous roster.

23. For the Department, it was contended that the decision not to permit the applicant to return to the Simon Crescent CRU did not involve the imposition of a disciplinary sanction. Rather, it was a decision made in the exercise of a managerial prerogative consistent with the employer’s contractual right to deploy its workforce as it saw fit and the discharge of its statutory rights and responsibilities; (see ss 20(1) and 20(2)(b) and (c) of the Public Sector Management and Employment Act 1998 (Vic))

24. At the hearing, Mr Campbell McDonald, Acting Assistant Director, Industrial Relations, Department of Human Services, gave evidence that there are about 430 CRUs administered by the Department and a need often arises to transfer staff between CRUs to meet demands for services.  In addition, Mr Eyre gave evidence that it was considered impossible for the applicant to return to the Simon Crescent CRU because of the level of animosity between her and other members of staff at that CRU.  In his opinion, to return the applicant to that CRU would have served neither her interests nor those of other members of staff or clients based there.  Whether or not that perception was accurate, I am satisfied that it was genuinely formed so that there were valid managerial reasons for changing the applicant’s work location.  It was not done with the intention, or for the purpose, of reducing the applicant’s salary and so could not have been effected pursuant to one of the determinations enumerated in Item 9 of Schedule C.  Accordingly, there was no requirement for the relocation to be preceded by the procedural steps described in Items 6, 8 and 9 of that Schedule.

    Alleged breach of clause 16 the Agreement

25. In pars 24 and 25 of her amended statement of claim, the applicant alleged that the Department’s direction that she return to duty at the Harper Street CRU was a “redeployment” decision.  At pars 27-28 of the amended statement of claim it was pleaded;

    ‘27.As a consequence of the redeployment the applicant’s total hours of work have remained constant however the total number of days worked per month has been increased from 12 to 19.  There are no weekend shifts or “sleepovers” on the current rosters.  As a consequence of these changes imposed by the respondent the applicant’s salary has been substantially reduced from what the applicant had been earning in or about July 2003.

    28.Accordingly, the respondent has breached the Agreement by transferring or redeploying the applicant in circumstances that are not agreed or permitted by the Agreement.

    PARTICULARS

    The respondent has redeployed the applicant in circumstances other than those set out in clauses 16.2.2 and 16.2.3 of the Agreement’

26. Clause 16.2 of the Agreement provided, amongst other things;

    ‘16.2.2An ongoing employee may be transferred to an office the salary or wage for which is less than that for which he or she holds office where:

    … …

    16.2.2(b)        the transfer is made:

    16.2.2(b)(i)after the employer has satisfied itself that the ongoing employee is unable to discharge or incapable of efficiently discharging the duties of his or her office, is not discharging the duties of his or her office efficiently or satisfactorily, is not qualified temperamentally or otherwise for the efficient and satisfactory performance of the duties of his or her office or is inefficient in the prompt and effective discharge of his or her duties; or

    16.2.2(b)(ii)pursuant to the discipline procedures established by Schedule C of this agreement;

    … …

    16.2.3An ongoing employee may be transferred to an office the salary or wage for which is less than that for which he or she holds office where:

    … …

    16.2.3(c)the ongoing employee, while holding the office to which he or she is to be transferred, will received [sic] a remuneration which is not less than the remuneration applicable to the ongoing employee’s former office.’

1. Clause 16.2.5 provided for the maintenance of the actual salary of, amongst others, an on-going employee who had been redeployed.  In particular, cl 16.2.5(b) provided;

   ‘16.2.5(b)An ongoing employee who is redeployed; or employee with not less than 5 years continuous service who is redeployed must be paid:

   16.2.5(b)(i)for a period of 12 months from the date of transfer a total emolument which is no less than the salary payable immediately prior to the date of the transfer and the all purpose allowances paid to the ongoing employee or employee over the preceding 12 months;

   16.2.5(b)(ii)for the purposes of this sub-clause “all purpose allowances” means any allowance (other than a higher duties allowance) which an on-going employee or  employee would have been entitled to be paid whilst on recreation leave and shift allowances paid to the ongoing employee or employee during the 12 months immediately preceding the day of transfer.’

2. The applicant contended that the Department had been obliged to maintain her salary and wages for twelve months pursuant to cl 16.2.5(b)(i) but had failed to discharge its obligation under cll 16.2 and 16.3 in relation to her “redeployment”. 

3. According to the Department, the applicant’s contentions were misconceived because she had not been “redeployed” in the sense in which that expression was used in cl 16.2.  On the Department’s reading of cl 16.2 it conferred a right of salary maintenance on employees directed to transfer from one “office” to another for which the salary or wage was less than that payable to an occupant of his or her former “office”.  The expression “office” in cl 16.2, so the argument went, was clearly synonymous with “substantive classification”.  Before her transfer to Harper Street CRU, the applicant had been classified and paid as a DDSO1 and when she had been directed to work at the Harper Street CRU it was also as a DDSO1.  There could, therefore, be no suggestion that the applicant had been “redeployed” to a lower substantive classification.

4. At the hearing, Mr Campbell McDonald testified that there is no “office” lower than DDSO1.  His evidence was that the applicant had been transferred at that level and that her salary as a DDSO1 remained the same.  Mr McDonald acknowledged that, if Ms Mawkes had been redeployed to an “office” for which the salary or wage was less than that for her former “office”, the Department would have been obliged by cl 16.2.5(b)(i) to maintain her salary and “all-purpose earnings” for a period of twelve months from the date of the redeployment. 

5. However, Mr McDonald identified the decrease in Ms Mawkes’ take home pay as attributable to the different shifts which she was required to work at Harper Street CRU and the consequential reduction in the applicable shift penalties.  Mr McDonald described shift penalties as additional payments to compensate employees for working nights, Saturdays, Sundays, and on public holidays, which, in some cases, may contain a regular overtime component.

6. “Office” in cl 16.2 reflects the public service nature of the employment with which the Agreement is concerned.  In some contexts it usually connotes a position of defined authority in an organisation;  see eg Grealy v Commissioner of Taxation (1989) 24 FCR 405, at 411. However, in the present case the word appears to refer to the positions occupied by all “ongoing employees” who have “been selected through a merit based selection process for a substantively vacant position”; cll 10.6.2 and 10.6.3 of the Agreement. As revealed by the salaries prescribed by cl 12.1.1 of the Agreement as payable to full-time employees, the lowest classification of ongoing employees is that of Level 1 Disability Development and Support Officer (DDSO1). That was the classification in which Ms Mawkes was at all times employed and was the “office” in which she was employed for the purpose of the application to her of cl 16.2 of the Agreement. Her relocation from Simon Crescent CRU to Harper Street CRU did not involve a transfer to a different or other “office” as she retained the substantive classification of DDS01. The salary prescribed by cl 12.1.1 for that classification remained the same although the reduced facility to work onerous shifts meant that her overall remuneration or “take home pay” was diminished.

   52          It follows that no entitlement arose for Ms Mawkes by virtue of cl 16.2 of the Agreement and her application for the imposition of a penalty for breach of that clause must be refused.

   Claim for payment of “appropriate salary and allowance applicable to the Applicant”

7. By her amended application the applicant sought an order for payment to her of “appropriate salary and allowances” said to have been unpaid or underpaid as a result of the Department’s alleged breaches of the Agreement. At par 29 of her amended statement of claim, the applicant alleged that the Department had breached the Agreement as it had “failed to maintain the salary of the applicant at a level not less than that which the applicant was earning to June 2003”. That claim fails to draw the distinction, noted at [51] above, between the salary prescribed by cl 12 of the Agreement for each substantive classification of employee and the variable shift penalties, overtime and other allowances which might be reflected from time to time in an employee’s total “take home pay”. The obligation of the Department was to pay the base rate for the relevant classification prescribed by cl 12 together with the variable penalties and other allowances to which the applicant became entitled according to the circumstances of her work in each pay period.

8. It follows that the applicant has not been able to demonstrate that any amount by way of salary or allowance was unpaid or underpaid as a result of any breach by the Department of a term of the Agreement.  Accordingly, that part of the applicant’s claim which seeks payment of “appropriate salary and allowances” must be dismissed.

   Conclusion

9. For the reasons which I have endeavoured to explain the applicant has failed to sustain an interpretation of the Agreement which supports a grant of any of the relief sought by her amended application or other relief in the discretion of the Court save for a declaration that the “Final Warning” was void and of no effect. As s 347 of the Act applies to the present proceedings which, since the applicant has achieved a limited measure of success, the application cannot be said to have been instituted vexatiously or without reasonable cause, there can be no order as to costs.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             15 December 2006.

The applicant appeared in person
Counsel for the Respondent:	Mr J Forbes
Solicitor for the Respondent:	Maddocks
Date of Hearing:	30 November and 7 December 2005
Date of Judgment:	15 December 2006