Miss Rebecca Coughlan v Wyndham City Council

[2015] FWC 4112

[2015] FWC 4112

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Miss Rebecca Coughlan
v
Wyndham City Council
(C2014/7725)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 19 JUNE 2015

Alleged dispute concerning discrimination and bullying.

Introduction

[1] Rebecca Coughlan (Applicant) was, since 19 May 2013, employed by the Wyndham City Council (Respondent) as a casual employee. That employment ended in or about October 2014. The circumstances in which the employment ended appear to arise from the Respondent’s decision not to provide casual shifts to the Applicant and the Applicant advising the Respondent in October 2014 that unless she was provided with shifts, she would regard the employment as terminated. The Respondent did not provide the Applicant with any further shifts.

[2] On 13 November 2014, the Applicant applied to the Fair Work Commission (Commission) under s.739 of the Fair Work Act 2009 (Act) for it to deal with a dispute in accordance with the dispute settlement procedure contained in the Wyndham City Council Enterprise Agreement No 6 2011 (Agreement). The Agreement applied to the Applicant and the Respondent during the Applicant’s period of employment.

[3] The subject matter of the dispute, as set out in the application lodged by the Applicant, concerns “discrimination, bullying and unfair dismissal (constructive dismissal)”. The dismissal dispute is said to arise from the Respondent’s refusal to provide the Applicant with shifts. Prior to making this application, the Applicant had made two other applications each concerning a general protections dispute. The first application was made on 9 September 2014 and the second on 27 October 2014. Both of these applications seem to be concerned with the same or overlapping subject matter as arises in this application.

[4] The Respondent has objected to the current application on jurisdictional grounds. These are based on the following:

● First, the procedural steps contained in the dispute settlement procedure of the Agreement have not been followed. Those steps are a condition precedent to seeking to invoke the Commission’s jurisdiction;

● Secondly, the Applicant was not an employee at the time she made her application. The Agreement only applied to the Applicant while she was employed. It did not apply to her when she made this application; and

● Thirdly, there is no dispute currently capable of being dealt with pursuant to the dispute settlement procedure as the disputes alleged by the Applicant have either being dealt with or have been withdrawn by the Applicant.

[5] Several attempts have been made to deal with the dispute and the Respondent’s jurisdictional objection. The matter was first listed for a conference on 8 December 2014 but the Applicant did not attend. Thereafter, I issued directions for the filing of materials to deal with the Respondent’s jurisdictional objection and a hearing was listed on 5 February 2015. The Applicant did not attend the hearing. A further hearing was listed to deal with the Respondent’s jurisdictional objection on 12 May 2015. The Applicant did not attend the hearing; she did not apply for an adjournment and did not notify my chambers of an inability to attend. I was satisfied that the Applicant had been notified of the hearing and decided to proceed in her absence.

[6] Despite the Applicant’s failure to attend, at the conclusion of the hearing on 12 May 2015, I advised the Respondent that I intended to forward to the Applicant a copy of the transcript and as well as a further copy of the Respondent’s written submissions relating to jurisdictional objection and that I would allow the Applicant a further seven days in which to make any submissions. Additional submissions in the form of an email from the Applicant were received in my chambers on 16 May 2015. I have taken those submissions into account, although for the most part the Applicant’s additional submissions do not engage with the jurisdictional issues that require determination.

[7] I have decided to dismiss the application on the basis that I do not have jurisdiction to deal with the dispute because the parties have not completed the procedural steps under the Agreement before the application was made. In the circumstances, I have found it unnecessary to deal with the other jurisdictional matters raised by the Respondent. My reasons for so concluding are as follows.

Consideration

Relevant statutory and Agreement provisions

[8] The provisions of the Act which empower the Commission to deal with disputes under a disputes settlement procedure of an enterprise agreement relevantly provide:

738 Application of this Division

This Division applies if:

. . .

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

. . .

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effectas subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

(My underlining)

[9] Clause 54.3 of the Agreement sets out the relevant disputes settlement procedure as follows:

54.3. Internal process

The dispute or grievance must first be dealt with in accordance with the following process.

Any dispute shall in the first instance, be discussed between the employee(s) concerned, their representative if requested, and the immediate line manager/supervisor. The line manager/ supervisor must make a genuine attempt to resolve the matter in a reasonable timeframe.

If the matter cannot be resolved, it will be referred to the appropriate line manager who will attempt to resolve the matter in a reasonable time frame. The line manager shall consult with a representative appointed by the employee, if requested, when endeavouring to resolve the matter.

If the matter is still not resolved, the matter shall be immediately referred jointly for discussion to a manager with higher level responsibility, the employee and their representative if requested.

If the matter cannot be resolved, it may be referred to a mutually agreed independent mediator, or conciliator who may exercise conciliation or arbitration and whose decision will be binding subject to prior agreement by the parties.

If both parties cannot agree the matter can be referred to Fair Work Australia.

[10] As is common in dispute settlement procedures in enterprise agreements, clause 54.3 of the Agreement contains a layered or stepped approach to dispute resolution. Each next step is taken only after the previous step has been undertaken but has not resolved the dispute.

[11] It is clear from the structure and text of clause 54.3 of the Agreement that the Commission cannot be called upon to deal with a dispute until the dispute has been through each of the steps set out and remains unresolved.

[12] The Respondent submitted that the earlier steps under clause 54.3 of the Agreement had either resulted in some aspects of the dispute being withdrawn or resolved or that the steps were not completed. In support of this proposition the Respondent provided email correspondence and other documents said to establish that the claims now sought to be agitated had earlier been withdrawn by the Applicant or not pursued in accordance with the stepped procedure under clause 54.3 of the Agreement.

The bullying dispute

[13] The material shows that the Applicant raised a bullying allegation with Mr Le Clerc of the Respondent on or about 20 September 2013. During October 2013, this allegation was discussed between the Applicant and Mr Le Clerc. Between October 2013 and February 2014 the bullying allegation was referred to and handled by Ms Percy of the Respondent. In or about March 2014 the bullying allegation was referred to Ms Hansen and Ms Dixon of the Respondent and again in March 2014 Ms Dixon attempted to arrange a mediation of the bullying allegation. By email from the Applicant to Ms Dixon dated 28 March 2014 the Applicant advised Ms Dixon as follows:

“Only because it (sic) carol has lied about me to Ross, he has taken shifts off me and everything else ive (sic) already said - its (sic) too stressful and not worth my energy anymore Bullies always win - im (sic) not pursuing anything its (sic) a waste of time. Thankyou for making contact.”

[14] On 2 April 2014, Ms Dixon responded as follows:

“Thanks for your email. I understand that you do not want to pursue any action, including mediation . . . On that basis, I will close the matter”.

[15] The Applicant does not dispute that she sent the correspondence to Ms Dixon or the effect of that correspondence.

[16] It is therefore clear that the Applicant had, as at 28 March 2014, ceased to agitate the bulling allegation and decided not to pursue the matter. Even if that dispute could later be agitated without engaging again with each of the steps in clause 54.3 (about which I have doubts), it is clear that attempts to agree on an independent mediator, or conciliator who may exercise conciliation or arbitration, have not been made. It is only after that step has been attempted that the jurisdiction of the Commission may be invoked. Absent compliance with that step, the Commission does not have jurisdiction to deal with the dispute so far as it relates to the bulling allegation.

The shift allocation and dismissal dispute

[17] Turning to the allocation of shifts issue, on 31 March 2014 the Applicant sent an email to Mr Daryl Wilson of the Respondent in which she alleged that after raising issues regarding a new roster and the work performance of Ms Kochevatkin's (a colleague) with Mr Le Clerc, he had “taken shifts” from the Applicant. By email dated 2 April 2014, Mr Wilson responded and offered to meet with the Applicant to discuss the shift allocation issue amongst other matters. On the same day, the Applicant sent an email to Mr Wilson in which she indicated that she had come to realise that “it would be a waste of time trying to stand up for” herself and did not take up the offer of a meeting. On 3 April 2014, Mr Le Clerc sent an email to the Applicant in which he confirmed that he would not roster the Applicant to work with Ms Kochevatkin in accordance with the Applicant's wishes.

[18] No further step was taken under clause 54.3 of the Agreement.

[19] As I have earlier indicated, the Applicant separately sought to pursue the bullying allegation and the shift dispute through separate general protections dispute applications. These steps are not steps taken in accordance with the dispute settlement procedure in clause 54.3 of the Agreement. Instead the Applicant sought to invoke a separate and distinct jurisdiction of the Commission. That she did so does not advance her claim to have the Commission deal with a dispute pursuant to the disputes settlement procedure of the Agreement.

[20] Further, on 3 October 2014, the Applicant wrote to the Respondent indicating that unless she was placed back on the roster the following month she would treat her employment as having been terminated by the Respondent. On 30 October 2014, the Applicant sent an email to Ms Hansen of the Respondent in which she maintained that the Respondent had terminated her employment as it had not responded to her earlier email of 3 October 2014. On 31 October 2014, the Applicant again sent an email to Ms Hansen and again asserted that her employment had been terminated. On 11 November 2014, the Applicant sent a further to Ms Hansen, which seems to have been motivated by an “all staff” email sent by Mr Le Clerc. In that email the Applicant again asserted that her employment had been terminated and she indicated that she did not wish to be contacted by Mr Le Clerc again. No attempt was made to invoke the disputes settlement procedure in clause 54.3 of the Agreement.

[21] It therefore seems clear that that the necessary steps under clause 54.3 of the Agreement, which condition an application to this Commission, have not been complied with in relation to the shift dispute and the termination of employment dispute, although I doubt that a termination of employment dispute could, in any event, be dealt with under clause 54.3 of the Agreement. Absent compliance with those steps, the Commission does not have jurisdiction to deal with the dispute so far as it relates to the failure by the Respondent to allocate shifts and the termination of employment.

The discrimination dispute

[22] So much of the dispute as relates to an allegation of discrimination is not particularised in the application. In any event there is no evidence that the any dispute or grievance about discrimination has been dealt with in accordance with the steps set out in clause 54.3 of the Agreement. It follows that the Commission’s jurisdiction cannot be invoked.

Conclusion

[23] For the reasons given, since the steps set out in the dispute settlement procedure in clause 54.3 of the Agreement have not been completed in respect of any aspect of the dispute, I do not have jurisdiction to deal with the application. Accordingly, the application is dismissed.

[24] As I have earlier indicated, I have found it unnecessary to deal with the other jurisdictional bases of objection raised by the Respondent, but I would indicate that once the Applicant ceased to be an employee of the Respondent she ceased also to be covered by the Agreement. The Agreement no longer applied to her as an employee of the Respondent. As termination of employment occurred before this application was made, I doubt the Applicant had standing to bring the application.

 [25] An order dismissing this application is separately issued in PR568544.

DEPUTY PRESIDENT

Appearances:

For the Respondent: Ms E. Paynter of Maddocks

Hearing details:

Melbourne

8 December 2014 (for conference)

5 February 2015

12 May 2015

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