Mohammed Hossain v Rail Corporation New South Wales T/A Railcorp

[2014] FWC 344

[2014] FWC 344

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Mohammed Hossain
v
Rail Corporation New South Wales T/A Railcorp
(C2013/3876)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 15 JANUARY 2014

S.739 application to deal with a dispute.

Introduction

[1] An application for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure under s.739 of the Fair Work Act 2009 (the Act) was filed by Mr Mohammed Hossain (the Applicant) on 8 April 2013.

[2] The F10 form stated that Rail Corporation NSW T/A Railcorp (Railcorp), the Respondent, alleges that the Applicant has breached the Railcorp Code of Conduct. The breaches related to an alleged agreement with a co-employee to replace him on overtime and higher duties when the co-employee reported sick. There was a further allegation of falsification of timesheets.

[3] The Applicant denied both allegations, submitted that he had suffered procedural unfairness, challenged any disciplinary action being taken against him and sought any stain to his record be removed. The Applicant is a salesperson at Central Railway in Sydney and has been an employee of Railcorp for 26 years.

[4] The matter was dealt with by me in conference on 17 April 2013. It was not settled. However, the preliminary recommendation of dismissal which resulted from the Respondent’s internal process, at that stage, was effectively put on hold to allow that process to be completed.

[5] In early June the Applicant received a letter suspending him for two weeks. The Applicant objected to this and requested a further conference.

[6] The second conference took place on 12 June 2013. It was agreed that the Applicant would access the disciplinary review process of Transport for New South Wales (Transport NSW). His suspension was put on hold pending that review.

[7] The decision of the Transport NSW Discipline Panel contained in a letter of 23 July, was a one week suspension of the Applicant.

[8] As a result, of a further conference held on 27 August, I issued the following draft recommendation on 3 September 2013:

“1. That Sydney Trains and Unions NSW consider clarification of the operation of the EBA, employees’ rights under the Fair Work Act 2009 and the “Discipline Penalty Review Process Guidelines” in the 2014 EBA review negotiations.

2. A future Discipline Penalty Review Process should include the ability for an employee to put his/her case to the panel in a hearing/conference.

3. The applicant’s denial of these allegations should be made explicit on his employment record.

4. No reliance is to be placed by Railcorp on these allegations in considering any issues relating to the applicant’s employment/promotion in the future.”

[9] The recommendation was not accepted by the Applicant.

[10] At a telephone programming conference held on 10 September, it was agreed that the matter be listed for hearing.

[11] Directions were issued as follows:

“ the Applicant to file and serve submissions and witness statements by COB Friday, 27 September 2013.

• The Respondent to file and serve submissions and witness statements by COB Friday 11 October.



• The Applicant to respond by COB Friday, 18 October.”

[12] The matter was heard on 11 November. The Applicant was represented by Mr C. McArdle and the Respondent, Railcorp by Mr T. Woods of counsel. I granted both permission to appear pursuant to s.596. Although Railcorp has been re-named as “Sydney Trains” it is referred to as “Railcorp” throughout this decision.

The Enterprise Agreement

[13] The Railcorp Enterprise Agreement 2010 [AE882412] (the Enterprise Agreement) applies to Railcorp’s employees. Its nominal expiry date is 31 March 2014.

[14] The Dispute Settlement Procedure relevantly provides:

“9. Dispute Settlement Procedure (SDP)

9.1 The purpose of this procedure is to ensure that disputes are resolved as quickly and as close to the source of the issue as possible. This procedure requires that there is a resolution to disputes and that while the procedure is being followed, work continues normal.

9.2 This procedure shall apply to any dispute that arises about the following:

(a) matters pertaining to the relationship between the Employer and Employees;

(b) matters pertaining to the relationship between the Employer and the Employee organisation(s), which also pertain to the Agreement and/or the relationship between the Employer and employees;

(c) deductions from wages for any purpose authorised by an Employee who will be covered by the Agreement;

(d) the National Employment Standards; and

(e) the operations and application of this Agreement.

9.3 This procedure shall not apply to matters arising under the General Protections provisions of the Fair Work Act 2009 (Cth)

9.4 Any dispute between the Employer and Employee(s) or the Employee’s representative shall be resolved according to the following steps:

STEP 1: Where a dispute arises it shall be raised in the first instance by the Employee(s) or their Union delegate directly with the local supervisor/manager. The local supervisor/manager shall provide a written response to the Employee(s) or their Union delegate concerning the dispute within 48 hours advising them of the action being taken. The status quo before the emergence of the dispute shall continue whilst the Dispute Settlement Procedure is being followed. For this purpose ‘status quo’ means the work procedures and practice in place immediately prior to the change that gave rise to the dispute.

STEP 2: If the dispute remains unresolved, or if the dispute involves matters other than local issues, the General Manager Employee Relations or their nominee, a divisional management representative and the Employee(s) and/or the Employee(s) representative, Union delegate or official shall confer and take appropriate action to arrive at a settlement of the matters in dispute within 72 hours of the completion of Step 1 or the General Manager Employee Relations being notified of a dispute involving other than local issues.

STEP 3: If the dispute remains unresolved, each party to the dispute shall advise in writing of their respective position and negotiations about the dispute will be held between the Employee representative(s) or Union officials, the CEO of RailCorp or their nominee who will meet and conclude their discussions within 48 hours. The matter may be referred to Unions NSW for resolution of the dispute by any of the parties involved provided Unions NSW is chosen by the Employees as their representative.

STEP 4: If the dispute remains unresolved any party may refer the matter to Fair Work Australia for conciliation. If conciliation does not resolve the dispute the matter shall be arbitrated by Fair Work Australia provided that arbitration is limited to disputes that involve matters listed in Sub-clause 9.2 of this procedure.

[15] Clause 36 “Disciplinary Matters” also provides:

“36. DISCIPLINARY MATTERS

36.1 Disciplinary measures that may be taken after an investigation include:

(a) caution or reprimand;

(b) a fine;

(c) reduction in position, rank or grade and pay;

(d) suspension from duty without pay; and

(e) dismissal.

36.2 Uncomplicated disciplinary investigations should generally be completed within 10 to 12 weeks from when an Employee is notified that an investigation is commencing.

36.3 Irrespective of the complexity of the matter, after 12 weeks from commencement of the notification, the Director Human Resources or nominee, is to advise the Employee in writing if the process is to extend beyond 12 weeks, the anticipated time for the current stage to conclude and outline the reasons for any delays to date or anticipated delays. Reasons for a delay may include:

(a) complexity of the matter;

(b) exceptional circumstances;

(c) request for delay by an external investigating authority;

(d) availability of the Employee; or

(e) similarly advice is to be sent each subsequent 6 weeks after the first advice.

36.4 Where an investigation arises out of a complaint by another Employee, that Employee will also be advised of progress of the matter.

36.5 Pending the outcome of an investigation, Employees may be suspended on base pay, master roster pay in special circumstances, suspended without pay, placed in alternative duties or re-assessed and returned to normal duties.

Where an Employee’s period of suspension exceeds 17 weeks they will resume their duty at that point, unless exceptional circumstances apply. Exceptional circumstances would include: complex investigations, matters underway in other jurisdictions and where delays result from the Employee’s own actions.

36.6 Where an allegation is withdrawn or the outcome of an investigation results in no case to answer, the Employer will ensure that the Employee has suffered no loss of pay or entitlements when compared to their master roster pay or other pay arrangements that may have applied during the period of the suspension.

36.7 If the disciplinary process results in the Employee being suspended without pay, the suspended Employee may elect to have payments made against accumulated leave entitlements. Such leave will be re-credited where the Employee has been found to have no case to answer.

36.8 RailCorp Employees will have access to the specific discipline appeals process which is legislated in NSW.”

Railcorp Policies

[16] There are a number of Railcorp policies that are relevant to this case but in the interests of brevity they do not need to be set out in full.

[17] The Applicant is accused of breaching the Railcorp Code of Conduct which contains the minimum standards of employees etc. that Railcorp expects.

[18] The “Procedure Discipline” policy sets out the investigation procedure to be undertaken when an employee is suspected of breaching the Code of Conduct. This involves an investigation, preliminary decision, employee response and final decision. This policy specifies appeal rights to the Fair Work Commission.

[19] As of 1 September 2012 all appeal rights to the Transport Appeals Board, including discipline appeals, were discontinued. However, Railcorp employees can access a discipline penalty review process, under “Interim Discipline Penalty Review Process Guidelines” put in place by Transport NSW, on grounds that a decision was unfair, harsh or unreasonable. A Disciplinary Panel, consisting of three Transport NSW officers is constituted under this policy to review disciplinary matters. A determination is made on the papers only and does not involve a hearing.

Allegations against the Applicant

[20] There were a couple of versions of the allegations against the Applicant. However, the Report of the Disciplinary Panel, dated 23 July 2013 substantiated allegations of:

“ The Applicant entered into an agreement with another employee to replace him on overtime and higher duties when he was sick on 6 January 2012.

• The Applicant falsified the recording of hours of duty on 25 October and 18 November 2011.



• The Applicant falsely claimed higher duties on 18 and 19 November 2011.”

[21] As I have already noted, the result was suspension without pay for one week. At the time of the hearing that penalty had not actually been implemented. The Applicant seeks his record to be completely expunged.

[22] The Applicant submits that the Fair Work Commission has the jurisdiction to hear this matter and that the Respondent’s disciplinary process, outlined above, did not provide the Applicant natural justice. Further, the Applicant seeks to show that the allegations are false.

[23] The Respondent opposes both arguments. I now deal with each in turn.

Jurisdiction

[24] Both the Applicant and the Respondent agreed that the Commission’s jurisdiction to arbitrate this dispute depends on the terms of the Enterprise Agreement. The Act provides for the Commission to arbitrate a dispute arising under an enterprise agreement if the parties have agreed that it can do so.

“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.”

[25] The Full Bench in Cape Australia Holdings Pty Ltd T/A Total Corrosion Control Pty Ltd v Construction, Forestry, Mining and Energy Union etc[2012] FWAFB 3994 (Cape) summarises the proper construction of dispute settlement procedures in enterprise agreements and I adopt it in this case.

[26] Clause 9 of the Enterprise Agreement, which is set out in [14] above, clearly provides for the Commission to arbitrate unresolved disputes about matters pertaining to the relationship between the employer and employees.

[27] I find that this case is such a dispute and that it comes within s.739(4).

[28] The Respondent argues that Clause 36 of the Enterprise Agreement, which is set out in [15] above, supplants the Commission’s jurisdiction. I do not accept this submission.

[29] Clause 36 does not set out an exclusion to clause 9, which it would need to do for this argument to have any chance of succeeding.

[30] In any event, as I have already noted, Transport Appeals Board appeal rights ended in September 2012 and therefore would not be available to the Applicant.

[31] Accordingly, I find that the Commission has jurisdiction to arbitrate this dispute. Any change to the process for resolving such disciplinary matters would need to be agreed by the parties to the Enterprise Agreement in their negotiations concerning its renewal this year.

Conclusion on the Allegations

[32] The Applicant relied on the evidence of the Applicant and fellow employees, David McKeon, Suresh Madala and Mark Jovanovic. Mr McKeon was the employee accused of making the overtime arrangement with the Applicant. All supported the Applicant’s version of events.

[33] Mr McKeon said that he could not recall a conversation with the Applicant. This is contrary to the evidence that on 10 January 2012 he made a statement to the effect that “I went off sick to give Hossain overtime” but says that these comments were made as a joke. He denied he made the arrangement with the Applicant. However, he was suspended without pay for a month arising from the incident and did not challenge the penalty.

[34] Mr Madala and Mr Jovanovic gave evidence concerning the time sheet falsification allegations. The time-sheets were also examined.

[35] The Applicant’s evidence was that he was always keen to work overtime but made no specific arrangement with Mr McKeon. When cross-examined by Mr Woods in relation to the time-sheet allegations, the Applicant’s evidence, appeared to me, to conflict in an unconvincing manner, with the time-sheet evidence and the material brought forward through the Railcorp investigations.

[36] The Respondent called Ms Puri, Mr Singh, Mr Vogel and Mr Posadas. Mr Vogel gave evidence concerning the overtime incident and Ms Puri, Mr Singh and Mr Posadas concerning the time-sheets. Each gave evidence consistent with the result of the Respondent’s investigation.

[37] The Respondent’s investigation was extensive and not tainted by any allegations of bias. The complaint of the Applicant was that the allegations against him were not clear to him. This is clearly not the case. He was informed of the substance of the allegations before the end of 2011. The first formal letter was sent to him in April 2012. There were numerous subsequent letters and reports which set out the substance of the allegations and the results of the investigation.

[38] The Respondent tendered over 300 pages of records of the investigation containing witness statements, contemporaneous records of interview, time and wages records and the investigator’s conclusions. These substantiated the allegations.

[39] There was nothing put to me during the conferences and hearing that would lead me to conclude that there was no substance in the allegations. This is not an unfair dismissal case in which I would be required to take into account all of the matters set out in s.387 of the Act in deciding whether a dismissal was harsh, unjust or unreasonable.

[40] The Respondent’s penalty of one week’s lost wages is relatively minor given the allegations. In my view, the Applicant should have accepted it and moved on.

[41] I find therefore that the Respondent’s disciplinary action against the Applicant was reasonably open to it. I do not propose to make any order that would interfere with it.

DEPUTY PRESIDENT

Appearances:

C. McArdle, solicitor for the Applicant

T. Woods of counsel with B. Terry, solicitor for the Respondent.

Hearing details:

2013

Sydney:

April 17, conference;

June 12, conference;

August 27, conference;

September 10, programming by telephone;

November 11, hearing.

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