Ms Denice Tarasenko v Insurance Australia Group

[2017] FWC 2432

[2017] FWC 2432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 739 - Application to deal with a dispute

Ms Denice Tarasenko
v
Insurance Australia Group
(C2016/5342)

DEPUTY PRESIDENT SAMS SYDNEY, 19 JUNE 2017

Alleged dispute about matters arising under an enterprise agreement and the National Employment Standard (NES) – carers’ leave – transfer – allegations of bullying –investigation processes agreed – carers’ leave dispute resolved – applicant resigned – other grievances not matters arising under the NES or Agreement –no jurisdiction – no power or utility in granting orders sought - application dismissed.

BACKGROUND

[1] Ms Denice Tarasenko was employed as a Customer Service Host/Business Consultant by Insurance Australia Group (‘IAG’ or the ‘respondent’) at its Hornsby Office. She commenced employment on 23 February 2015 and her employment conditions were covered by the IAG Enterprise Agreement [AE419009] (the ‘Agreement’).

[2] On 7 September 2016, Ms Tarasenko filed an application, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’), seeking to have the Fair Work Commission (the ‘Commission’) deal with a dispute under the Dispute Settlement Procedure (‘DSP’) of the Agreement. It is necessary to set out the Agreement’s DSP, which is found at cl 8 as follows:

Step 1 – The Employee should first discuss the matter with their immediate Manager who must make every effort to resolve the matter.

Step 2 – If the matter is not resolved, or if it is not appropriate to discuss the matter with their immediate Manager, the Employee should discuss the matter with their next level Manager who will attempt to resolve the matter.

Alternatively an Employee can contact their Human Resources representatives directly who will work with the Employee and Manager to attempt to resolve the issue.

Step 3 – If the matter is not resolved at this point the Employee may, if appropriate, notify an employee representative (such as the FSU), who will discuss the matter further with the relevant Human Resources representative.

Step 4 – If the matter is not resolved it will be brought to the attention of the relevant Head of Human Resources. They or their nominee will discuss the matter further with the relevant Human Resources representative.

Step 5 – If the matter is not resolved by the parties in steps 1-4 above, the parties may separately or jointly refer the matter to the FWC for resolution.

[3] Ms Tarasenko described the dispute as ‘decline of leave and transferred whilst holding a carers’ medical certificate which resulted in false allegations of unreasonable behaviour against another employee’. The original relief sought by Ms Tarasenko was ‘for the dispute to be fairly mediated and employee not transferred or dismissed during the dispute process…’.

[4] In later material, filed by Ms Tarasenko it would appear that she now sought that:

• the investigation of her alleged inappropriate behaviour, be placed on hold until she and the complainant returned from leave;



• that IAG not transfer or dismiss her during the investigation;



• that IAG pay her an amount of $9,642.00 for medical expenses and lost wages, arising from her resignation from her employment with IAG; and



• that IAG agree to enter into a deed of release in relation to her claims.

[5] During the course of a number of Commission conferences, it became clear that Ms Tarasenko’s dispute revolved around three primary issues in which she alleged that:

(a) in April 2016, she had sought and was refused carers’ leave;

(b) her work location was transferred from Castle Hill to the Hornsby Branch; and

(c) she was subject to false allegations of unreasonable behaviour from her work colleague, Hayley Clarke.

[6] IAG responded to each of these matters as follows:

(a) Ms Tarasenko had originally requested annual leave of five days to attend appointments with her pregnant daughter. While IAG did not know that Ms Tarasenko’s granddaughter was unwell, the request was resolved and Ms Tarasenko was provided with carers’ leave for the five days and her annual leave was recredited.

(b) Ms Tarasenko was offered to be transferred to Hornsby because:

(i) there was an opening at the Hornsby Branch;

(ii) Ms Tarasenko already worked at the Hornsby Branch on Saturdays to earn overtime and appeared to have good relationships with the team at Hornsby;

(iii) There were ongoing tensions between Ms Tarasenko and team members of the Castle Hill Branch; and

(iv) Ms Tarasenko had agreed to transfer, but raised concerns subsequently. On 11 May 2016 and July 2016, Ms Tarasenko was offered a return to Castle Hill, but she had not accepted the offer.

(c) Around 20 July 2016, Ms Hayley Clarke raised bullying allegations against Ms Tarasenko. On 30 August 2016, Ms Tarasenko reciprocated by making bullying allegations against Ms Clarke. IAG commenced an investigation, but it was postponed, at Ms Tarasenko’s request, when Ms Clarke went on six weeks leave and Ms Tarasenko took leave until 10 October 2016.

[7] From the outset, IAG has raised a jurisdictional objection to the dispute, by claiming that none of the above three issues had been properly processed through the Agreement’s DSP and the relief sought by Ms Tarasenko was inconsistent with the terms of the Agreement. In any event, the investigation had been put on hold until both employees returned from leave and IAG had no intention to transfer or dismiss Ms Tarasenko during the dispute process.

[8] The Commission listed the application for conciliation on four occasions in October, November 2016 and January 2017. During this period, Ms Tarasenko frequently corresponded with the Commission and repeatedly raised a number of associated issues and complaints regarding her employment, her health, the investigation of bullying complaints, a failure by IAG to comply with its own policies, the failure of IAG to provide documents, the failure of IAG to be properly represented and further allegations of bullying harassment and unfair treatment.

[9] Nevertheless, a number of relevant developments also occurred during this four month period, including;

• Ms Clarke was transferred to Parramatta;



• Ms Tarasenko foreshadowed filing an anti-bullying order application, but no application was filed;



• Ms Tarasenko was frequently granted leave from work, due to the stress of the allegations of bullying and harassment from management;



• IAG offered to exit Ms Tarasenko from the business and she agreed to negotiate appropriate arrangements for this to happen;



• Ms Tarasenko filed a workers’ compensation claim which resulted in a Return to Work program being proposed by a rehabilitation provider;



• Ms Tarasenko demanded disciplinary action be taken against certain IAG managers;



• Ms Tarasenko resigned on 10 January 2017. She claimed she had no other option in order to protect her health and wellbeing; and



• Draft deeds of release were exchanged with Ms Tarasenko. However, she insisted the deed recognise her complaints against IAG and its managers and employees were substantiated and justified.

[10] On 23 January 2017, Ms Tarasenko requested the Commission relist the matter so that ‘IAG provide an accurate account of the bullying and harassment’ and ‘the denial of workplace entitlements as the reason for her resignation’.

[11] The matter was listed for further conference on 25 January 2017 and despite terms of settlement being discussed, no agreement could be reached. Consequently, IAG made an application to have the matter dismissed, pursuant to s 587(3)(b) of the Act on the basis the application had not been made in accordance with the Act because:

• in relation to all issues raised in the application, Ms Tarasenko did not follow the dispute resolution procedure prescribed by clause 8 of the Agreement;



• the carers’ leave issue raised in the application was resolved prior to the application being made;



• IAG consulted with Ms Tarasenko about the transfer to the Hornsby branch in accordance with the Agreement. Ms Tarasenko was comfortable with the move and it was only later that she raised concerns. In any event, it was unclear what resolution the Commission can order in relation to this issue, as Ms Tarasenko has resigned from her employment with IAG;



• the bullying investigation is not a matter ‘arising under the Enterprise Agreement or the NES’ pursuant to clause 8 of the Agreement;



• Further, the relief sought by Ms Tarasenko is inconsistent with the terms of the Agreement (pursuant to s 739(5) of the Act);



• In any event, the relief sought in Ms Tarasenko’s application (which, in summary, was that the investigation be put on hold until she and the complainant had returned from leave and that IAG not transfer or dismiss Ms Tarasenko during the dispute process) has already occurred.

[12] As a result of IAG’s jurisdictional objection, Ms Tarasenko was directed to set out the jurisdictional basis of her dispute notification and the specific relief sought by her. On 10 February 2017, Ms Tarasenko advised that she sought $9,642.00 due to mental health and wellbeing concerns which ‘led to resignation no income not currently working’. On 17 February 2017, the Commission issued directions in respect to IAG’s jurisdictional objection and advised that the Commission would determine that matter ‘on the papers’. There was no objection to this course.

Submissions for Ms Tarasenko

[13] Ms Tarasenko submitted that she is entitled to make an application under s 739 of the Act. Curiously, she also made submissions in relation to s 340 of the Act – General Protections. While this application is neither a s 365 nor a 372 application, the applicant submitted that she is able to make such an application in order to prevent ‘further workplace rights being denied as the dismissal and/or further transfer by the (respondent) during the dispute’. Ms Tarasenko also submitted that she had complied with the DSP at cl 8 in respect of each of her four disputes, which she characterised as ‘incidents’.

[14] In relation to the first incident - ‘Bully and harassment experienced through vexatious false allegations Castle Hill’ – Ms Tarasenko submitted she had complied with each of the sub clauses of the DSP as follows:

1. ‘She spoke with her immediate manager on 2 June 2015.
2. She contacted HR on 6 June 2015.
3. She tried to contact the Union in June 2015, but they refused to advise her as she was not a member.
4. While the Head of HR did not contact her, she did receive a letter which confirmed the allegations were ‘false’. However, she said she did not receive anything to prevent further complaints from being made.’

[15] In the second incident - ‘the decline of carer’s leave with medical certificate during medical emergency’ - Ms Tarasenko said she had complied with the DSP in that:

1. She spoke with her immediate manager about the issue on 29 April 2016.
2. She contacted HR on 8 April 2016 and met with the Regional Manager in person to discuss the issue in May and July 2016.
3. The Union would not assist her as she was not a member.
4. The Head of HR did not contact her and the matter remained unresolved.

[16] Ms Tarasenko submitted that ‘no remedy or resolution for the relief sought by the applicant to seek urgent medical treatment and care for (her) new born granddaughter and daughter at the time it was needed most’ (the time of the emergency). However, she conceded that HR made corrections to its annual leave/sick leave and flex hours records approximately one month later.

[17] While Ms Tarasenko did not make it clear what her third incident was in her submissions, it appears related to having been transferred to another work location during her medical emergency. She submitted that she had generally complied with the DSP, but that the Head of HR had not contacted her to resolve it.

[18] In respect to incident 4 - ‘bullying and harassment by false allegations of vexatious nature made by colleague’ – Ms Tarasenko submitted that she had complied with the requirements under the DSP, in that:

1. She contacted her immediate manager about the dispute in May and June 2016. She emailed her manager on 16 July 2016 and met with them again on 26 July 2016. She then contacted the Regional Manager on 30 August 2016.
2. She did not contact the Union as she was not a member.
3. She was contacted by an HR Specialist after her s 739 application was lodged with the Commission.

[19] Ms Tarasenko claimed that all efforts to resolve the dispute before the Commission had been unsuccessful due to the respondent’s objection on jurisdiction. The above incidents eventually led to her forced resignation. The applicant sought relief by requiring the respondent to maintain a workplace environment that complied with the Act’s NES, ss 739 and 340 and by ‘ensuring workplace entitlements were available’.

[20] Ms Tarasenko claimed to have been forced to resign and seek alternative employment causing her further stress and distress. The applicant sought a form of relief which would result in:

(a) re-imbursement of lost wages and personal medical expenses of $9,742.00 gross, due to mental health and wellbeing concerns which led to her resignation and consequent loss of remuneration;

(b) an agreement by IAG to sign the terms of settlement that she had amended; and

(c) a determination that holds employer’s accountable to the Act, given these matters arose prior to her forced resignation.

Respondent’s submissions

[21] IAG set out the history of proceedings before the Commission and identified the three issues the applicant seeks to have arbitrated and what relief she seeks. IAG submitted that the application must meet the following requirements to be validly made:

• there must be an issue or grievance;



• the issue or grievance must be about 'matters arising under this Agreement or the NES’; and



• the parties must have followed the procedure outlined in clause 8 of the Agreement.

[22] IAG’s submissions then dealt with each of Ms Tarasenko’s grievances as follows.

[23] On or around 30 March 2016, Ms Tarasenko sought periods of annual leave on 31 March and 1, 3, 5 and 7 April 2016 (not carers’ leave) to attend medical appointments with her daughter in respect to her ill granddaughter. On or about 31 March, the applicant advised she had a medical certificate in relation to taking carers’ leave for these days. She did not provide the medical certificate at that time. However, annual leave and flex-time was recorded for those days. Around 4 April, IAG received the medical certificate at that time. In May 2016, Ms Tarasenko’s earlier annual leave and flex-time was recredited and replaced by carers’ leave for the entire period. Thus, it was submitted the carers’ leave grievance had been entirely resolved. There is no dispute, as there is nothing capable of being dealt with by the Commission. In any event, it is unclear what relief is being sought in respect to this issue.

[24] As to the other two grievances, IAG submitted that neither the Agreement or the NES contain provisions dealing with transferring employees or the conduct of workplace investigations. Accordingly, these matters are not capable of being disputed under cl 8 and the Commission has no jurisdiction in respect to either matter. In any event, it is again unclear what relief, if any, has been sought by Ms Tarasenko in respect to these matters.

[25] In addition, IAG submitted that these two grievances were not progressed beyond Step three to Step four which requires notification to the HR Department. Contrary to Ms Tarasenko’s belief, it was not the respondent’s obligation to move the grievance to Step four, as the onus rests on the party who invoked the DSP.

[26] It was further put that, even if the Commission has jurisdiction, the relief sought by Ms Tarasenko was inconsistent with the Act and the Agreement. The carers’ leave issue had been resolved. There was nothing capable of being done in respect to the transfer and investigation issues, as Ms Tarasenko had resigned from her employment. In respect to the monetary amount of $9,642.00 and the respondent agreeing to a deed of release, IAG put that such relief cannot be granted because:

• that relief does not appear to arise from, or be related to the issues;



• it is not clear from the application or from the further material how any right to ‘lost wages’ or medical expenses arising from the applicant's resignation, is actually said to arise at all;



• the Commission does not have the power deal with an application for the payment of ‘lost wages’ or ‘personal medical expenses’ unless such an application is properly before the Commission under section 739, which is not the case here; and



• the Commission cannot compel the respondent to enter into a deed of release. While the Commission has the power to make orders in arbitrating a dispute, it is difficult, if not impossible, to contemplate how this might include compelling a party to enter into a release or to 'agree' to enter into such a release.

CONSIDERATION

Relevant Statutory Provisions

[27] IAG has made an application under s 587 of the Act seeking to have the Commission dismiss this application. That section reads:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[28] Ms Tarasenko’s application was filed under s 739 of the Act. That section reads:

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) effect as 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.

The Dispute Settlement Procedure

[29] Although the Agreement’s DSP is headed ‘procedure’, it must be read in conjunction with the Overview preceding cl 8, which reads as follows:

‘The best environment to resolve workplace issues that arise is at the local level. Managers and Employees should work together to resolve problems quickly, effectively and cooperatively without the need for external assistance or direction.

IAG expects its Managers to practise an open door policy so that Employees feel free to take issues up at a higher level if they cannot resolve them with their immediate Manager.

Managers are expected to quickly and effectively resolve an Employee’s grievances or concerns.

Grievances regarding Annual Remuneration Review outcomes are only to be resolved in accordance with the procedure set out in clause 5.4 of this Agreement.’

[30] It is also pellucidly clear that the terms of the DSP are intended to apply to both individual employee issues or grievances and wider collective disputes involving parties to the Agreement, including the Finance Sector Union. Seemingly, Step five permits the Commission to deal with disputes by the use of all its powers, including binding arbitration. I do not understand IAG to argue otherwise.

[31] The Commission can only determine matters which the parties, through the terms of their Agreement, expressly empower the Commission to determine (s 739(5); see: Construction, Forestry, Mining and Energy Union v Australian Industrial Relation Commission [2001] HCA 16). The Commission is not at large to deal with matters beyond those arising under the Agreement, the NES or other matters which might arise under the contract of employment, or incidental to it, including to the employer’s policies. Obviously, matters which do not pertain to, or are incidental to the employment relationship are also not matters which the Commission can deal with. While not expressly limiting cl 8, save for the exception of Annual Remuneration Reviews, it appears from the language used that the DSP deals only with ‘matters arising under the Agreement or the National Employment Standards (NES)’.

[32] Given the dispute application filed by Ms Tarasenko and the respondent’s challenge to the jurisdiction of the Commission to deal with the matter, it is necessary for the Commission to determine a number of salient questions. There is little point in Ms Tarasenko complaining that her grievances have not been addressed or decided by the Commission to her satisfaction, if the Commission has no power to do so. Regrettably, Ms Tarasenko’s submissions did not squarely deal with the jurisdictional objection, which IAG had made clear from the outset of the filing of this application. Notwithstanding this objection and its right to have these objections determined at the outset, there have been numerous ‘without prejudice’ conferences about Ms Tarasenko’s grievances and genuine efforts by IAG’s representatives to carefully and thoughtfully give fair consideration to her concerns. I doubt Ms Tarasenko would agree with this observation. It is not correct, as Ms Tarasenko asserts, that IAG has not been willing to negotiate her grievances, as the earlier record of events, demonstrates. I am bound to say that Ms Tarasenko’s unshakable position was that unless her grievances were resolved on her terms and to her complete satisfaction, her grievances were not resolved (including a silly demand that IAG take disciplinary action against other employees). While I admire her tenacity and consistency, it was an untenable position which diverted any focus away from securing a sensible settlement of her grievances. Unfortunately, such an intractable negotiating stance guaranteed that no satisfactory outcome could be achieved.

[33] In returning to the jurisdictional issues, it is necessary for the following matters to be addressed for there to be a valid s 739 dispute application under the IAG Agreement. These are:

(a) there must be a dispute, issue or grievance which can be properly identified and characterised; see: Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2016] FWC 2959 at paras [6] to [10];

(b) the subject matter of a dispute, issue or grievance must be about ‘matters under this Agreement or the NES’;

(c) the parties must have followed the procedure in Steps one to four of cl 8;

(d) the Commission may determine the dispute, issue or grievance by conciliation and/or by arbitration: s 739(4);

(e) in determining the dispute, issue or grievance the Commission must have the necessary power to make the relief sought by the party requesting such relief; and

(f) the Commission would not ordinarily order the relief sought, if there is no practical utility in doing so; see: Schweppes Australia Pty Ltd v United Voice [2012] FWA 643 at [41].

[34] Perhaps it is unsurprising, given Ms Tarasenko was unrepresented, that her submissions did not really address the fundamentals necessary to ground the jurisdiction of the Commission to deal with her various grievances. She has consistently and repetitively raised matters which have not been processed through the steps in the DSP. She has put submissions which are misconceived and cannot be accepted. For example, Ms Tarasenko invoked the General Protections provisions of the Act. This s 739 application cannot be used as a vehicle for any complaint she might have had under s 372 or more latterly, under s 365 of the Act. She blamed the respondent for not progressing her grievance under the DSP. However, the onus to do so is not on IAG, but on the party who initiated the dispute in the first place (herself). Given the above conclusion, I am satisfied that Ms Tarasenko has not correctly progressed her dispute through all the requisite steps of the DSP. The application could be dismissed on that basis alone.

[35] In reality, Ms Tarasenko firstly seeks non-specific determinations or rulings about aspirational criticisms she believes should be made against IAG, notwithstanding that the Commission is being asked to take action retrospectively, as she has long since left the employ of the respondent. Secondly, Ms Tarasenko misunderstands the powers of the Commission which are not available to the grant of monetary payments or the ordering of a resisting party to sign a deed of release. I turn to each of her specific grievances as follows.

[36] The carers’ leave issue is the only matter which could arguably be a matter under the NES or the Agreement. However, the Commission has no jurisdiction to deal with a dispute which, on its own acknowledged and accepted facts, has been resolved. When a dispute or grievance is resolved, there is nothing for the Commission to do. Moreover, Ms Tarasenko did not properly articulate (or at all) what relief she sought in respect to this matter, apart from asking the Commission to effectively rebuke IAG for its actions at the time. Even if the Commission has jurisdiction, I would be disinclined to criticise IAG, having been made aware of the background and outcome of this issue.

[37] In respect to the transfer and workplace investigation grievances, the Commission has no jurisdiction to deal with either matters on the following bases:

(a) Neither matter arises from a provision or term of the Agreement or the NES. As the DSP in the Agreement appears not to permit the Commission to stray from matters not founded in the Agreement or the NES, the Commission is effectively barred from dealing with the matters.

(b) There is no dispute that Step four of the DSP was not invoked by Ms Tarasenko, as was her responsibility to do so. The Commission is barred from dealing with a matter/s which has not progressively moved through each step of the DSP.

(c) Given Ms Tarasenko has resigned, there would simply be no utility in taking any action, or grant any relief to rectify an alleged grievance about a transfer or a workplace investigation which would have no impact at all on an employee who is no longer employed. Although what is sought by Ms Tarasenko is not entirely clear, any relief would have no practical utility.

[38] In respect to monetary claims for medical expenses and lost wages, such relief is not within the Commission’s jurisdiction under s 739 of the Act, or at all. If Ms Tarasenko’s claim is that she was forced to resign, she had the opportunity to make an unfair constructive dismissal application, but apparently decided not to do so. Further, it would be inconceivable that in the exercise of its powers under s 739, that the Commission would be able to force a resisting party to enter into a deed with another party, in resolution of a dispute.

[39] For all these reasons, the Commission is satisfied that Ms Tarasenko’s application under s 739 of the Act, cannot proceed. The Commission has no jurisdiction to deal with the dispute at large, or in respect to each of its constituent elements. In addition, pursuant to s 587(1) of the Act, the application has no reasonable prospects of success. Accordingly, the application must be dismissed. I so order.

DEPUTY PRESIDENT

Final written submissions:

For the applicant, 3 April 2017.

For the respondent, 4 April 2017.

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