Ms Maureen West v Lutheran Church of Australia Queensland District T/A Lutheran Services

[2018] FWC 2089

[2018] FWC 2089

FAIR WORK COMMISSION

DECISION

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

Ms Maureen West
v
Lutheran Church of Australia Queensland District T/A Lutheran Services
(C2018/851)

COMMISSIONER BOOTH BRISBANE, 1 MAY 2018

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – s.739(3) – dispute about the application of the enterprise agreement – no power to deal with dispute.

Introduction

[1] This decision follows an application made under s.739 of the Fair Work Act 2009 (the Act) by Ms Maureen West (the Applicant), a registered nurse and employee of the Lutheran Church of Australia Queensland District T/A Lutheran Services (the Employer). The Applicant’s place of employment is Immanuel Gardens Lutheran Aged Care where the Applicant works as an aged care nurse.

[2] The dispute concerns a number of allegations made about the Applicant’s workplace performance and conduct and the subsequent investigation by the Employer into those allegations.

[3] The Employer raises a jurisdictional objection to the application. The basis of the Employer’s objection is that the Fair Work Commission (the Commission) lacks power or the jurisdiction to deal with the dispute.

[4] The Applicant submits that the approach taken by the Employer is a deliberate guise to give unwarranted credibility to a grossly unjust process. This is because the Applicant is of the view that there were no reasonable business grounds to initiate a workplace investigation about her conduct and, further, that the Employer has labelled the allegations “performance management” in order to avoid the grievance procedure under The Lutheran Services Aged Care Enterprise Agreement 2017 (the Enterprise Agreement).

Allegations and investigation

[5] The details of the allegations and subsequent investigation were set out in a letter from the Employer to the Applicant dated 24 January 2018. That letter also attached the Employer’s Grievance Resolution Policy.

[6] This letter detailed the allegations against the Applicant and involved the following:

•  failure to administer S8 medication

•  an alleged argument with the care coordinator

•  an allegation of the provision of false statements

•  alleged argument with the care coordinator concerning a lack of time to check charts

•  failure to attend mandatory meetings. 1

[7] The letter noted that following an investigation, and taking into account the Applicant’s responses, the Employer considered the allegations substantiated in relation to the first two matters but not in relation to the others. The Employer concluded that the substantiated allegations were breaches of Immanuel Gardens and Lutheran Services’ policies and procedures.

[8] The letter advised that it was a formal warning in relation to inappropriate workplace conduct and sought improvement of the Applicant’s conduct effective immediately. The letter also indicated that failure to meet reasonable expectations could result in further disciplinary action being taken, including potentially termination.

[9] Specifically on the question raised by the Applicant about the investigation process the Employer wrote:

“In response and during the meeting, you had a number of questions regarding the investigation process, in particular regarding natural justice and procedural fairness. As advised during the meeting, you have been afforded the same consideration as all other Lutheran Services employees who are the subject of a workplace investigation. Should you wish to raise further concerns, I refer you to the enclosed Grievance Resolution Policy.” 2

[10] On 25 January 2018, the Applicant responded to each allegation. The Applicant stated that the Employer had failed to answer her observations, and that the Employer had ignored or distorted much of what the Applicant had written or discussed and failed to include facts and consideration essential to a conclusion that would be fair and just. 3

Does the Commission have jurisdiction to deal with this dispute?

[11] Section 739 of the Act provides what the Commission can and cannot do in dealing with disputes under the terms of an enterprise agreement.

The legislation

[12] Section 739 provides as follows:

“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.

…

(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.”

[13] Section 595 of the Act details the Commission’s power to deal with disputes. Subclause 595(1) provides the Commission may only deal with a dispute if it is expressly authorised to do so under the Act. For the purposes of subclause 595(1), subclause 739(1) expressly authorises the Commission to deal with disputes. 4

[14] It is the Employer’s jurisdictional objection that the terms of the Enterprise Agreement do not expressly authorise the Commission to deal with a dispute in this case.

Terms of the Enterprise Agreement

[15] The Grievance Procedure is outlined in clause 8.3 of the Enterprise Agreement as follows:

“8.3 Grievance Procedure

(a) Step 1: If an employee has a grievance about matters arising under this enterprise agreement or the National Employment Standards that he/she is unable to satisfactorily resolve the employee should discuss the problem with his/her immediate team leader/supervisor.

(b) Step 2: The team leader/supervisor will investigate and respond to the problem within 3 working days.

(c) Step 3: If the problem cannot be satisfactorily resolved at this stage either party will refer the matter to the next level of site management (Director of Nursing/General Manager) within 3 working days. If there is some exceptional reasons why the problem cannot be discussed with the team leader/supervisor, the employee may proceed to Step 4 of this procedure.

(d) Step 4: If the problem cannot be satisfactorily resolved at this level within 3 working days, it will be referred to Lutheran Services Support Centre who will liaise with the relevant nominated employee representative to arrange a meeting between the relevant parties with the intent to assist resolution of the matter.

(e) Step 5: If the problem is still not satisfactorily resolved it may then be referred to FWC for mediation and/or conciliation and if necessary, arbitration.

(f) While the dispute/grievance is being processed work will continue in accordance with the status quo that existed prior to the commencement of the dispute/grievance.

(g) At all stages of this process team leaders/supervisors or general managers will endeavour to treat the grievance as a matter of priority.

(h) Any party to a grievance may request that a person attend and represent them.”

(Emphasis added)

Submissions of the Employer

[16] The Employer submits that the Commission lacks the power, or alternatively the jurisdiction, to deal with the dispute. It submits that under s.739 of the Act the Commission may deal with a dispute on application by a party to the dispute if it is empowered by a term described in s.738 of the Act. 5 Section 738 describes the instruments that may include a term empowering the Commission.

[17] The Employer submits that none of the instruments that apply to the Employer authorise the Commission to deal with this dispute brought by the Applicant. 6 The Employer submits that the dispute concerns an investigation undertaken by the Employer into allegations of improper conduct by the Applicant, describing the Applicant’s complaint as being about steps taken by the Employer to look into information it had received about the Applicant’s conduct in the workplace.7

[18] The Employer acknowledges that the Applicant contested that it was wrong for the Employer to investigate the allegations at all or to have found two of the five allegations proven. 8 However, it submits that neither the modern award9 nor the Enterprise Agreement10 deals with the employee conduct, and therefore this term does not authorise the Commission to deal with the present dispute.

[19] Clause 8.3 of the Enterprise Agreement is a grievance procedure that applies to matters arising under the Enterprise Agreement or the National Employment Standards (NES). There are no provisions in the Enterprise Agreement or the NES that deal with employee conduct, therefore this term does not expressly authorise the Commission to deal with the dispute. 11

[20] In addition, the Employer submits that there is no evidence of how the Applicant has complied with clauses 8.3(a)-(d) of the Enterprise Agreement before approaching the Commission. 12

[21] Finally, the Employer has not consented to the Commission dealing with the dispute in the case that the Commission does finds it lacks powers to deal with it. 13

Submissions of the Applicant

[22] The Applicant refers to the Employer’s reference to clause 8.3 of the Enterprise Agreement. She submits the grievance procedure was not followed, further that the Employer “deliberately and strategically circumvented its objectives”. 14

[23] The Applicant submits “they forbade me a voice” 15 as the grievance resolution policy states a formal grievance may not be lodged about performance management or discipline decisions.

[24] In response to the Employer’s submission that none of the matters raised in the dispute refer to the terms of the Enterprise Agreement, the Applicant disputes this and submits that all matters raised do refer to the Enterprise Agreement.

[25] The Applicant submits that the Employer has ignored issues important to professional practice, patient care and the Applicant’s innocence.

[26] In addition, the Applicant complains of procedural unfairness for example her being forbidden:

•  to speak to her supervisor/manager; and

•  to speak about the allegations with third parties. 16

[27] Further, the Applicant submits that the Employer’s motives were founded in age and relationship discrimination. 17

[28] The Applicant submits that the Employer has not complied with the grievance procedure in either action or spirit, and that they have also not followed their own procedures.

[29] The Applicant makes reference to management action, noting it must not be “irrational, absurd or ridiculous”; 18 the Applicant submits that this is what the action was and similarly the investigation and communication that both preceded and followed the investigation.

Consideration

[30] In considering whether the Commission has jurisdiction to deal with this dispute, it is firstly necessary to consider the question “what is the dispute about”?

[31] The Employer says that the dispute is about employee conduct and steps taken by the Employer to look into allegations of misconduct. The Employer states that the dispute arose following allegations of improper conduct with the Applicant believing it was wrong for the Employer to firstly investigate the allegations at all or to have found two of the five proven.

[32] The Applicant states in her application that the dispute is about:

“1. Five management allegations that constitute a workplace investigation. Three have been removed but two have remained.

2. The two remaining allegations are not correct and remain disputed despite a management investigation interview meeting and further letters and emails by me.

3. The core of the allegation revolves around the failure to administer and S8 drug. I am in aged care nurse and the allegation is unfounded.

4. Management action has been incorrect and inconsistent and have not acted reasonably.” 19

[33] In the Applicant’s submissions she states that the Employer has labelled these allegations “performance management” in order to avoid the grievance procedure under the Enterprise Agreement. 20

[34] It is clear to me that the allegations are about performance, conduct and the subsequent investigation. They deal with the very nature of the work undertaken by the Applicant as aged care nurse, including the administration of drugs to patients and matters of conduct between the Applicant and her supervisor. That these allegations are strongly disputed by the Applicant does not change the nature of the dispute.

[35] I conclude that the matters the subject of the dispute concern the Applicant’s performance in her role as an aged care nurse, and the process followed by the Employer.

[36] Having concluded that the dispute is about performance, can such a dispute be dealt with under the Enterprise Agreement, and, if not resolved under the Enterprise Agreement, be referred under Step 5 to the Commission?

[37] The Enterprise Agreement limits the matters that can be referred to the Commission. It provides in clause 8.3 Grievance Procedures that an employee who has a grievance about matters arising under the Enterprise Agreement or the NES which is unable to be satisfactorily resolved, after various internal steps the matter may be referred to the Commission.

[38] This procedure only applies to matters arising under the Enterprise Agreement or the NES, and neither the Enterprise Agreement nor the NES deal with performance issues. Therefore this matter cannot be dealt with under the Enterprise Agreement nor can it be referred to the Commission.

[39] This was confirmed by the Full Bench in Lend Lease Project Management and Construction (Australia) Pty Ltd v Construction Forestry Mining and Energy Union 21 noting that the Commission may only exercise power where the Enterprise Agreement authorises it to do so:

“[20] Section 595(3) of the FW Act provides that the Commission “may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act”.... Further, s.739(3) provides that “In dealing with a dispute, the FWC must not exercise any powers limited by the term”, so that if, for example, any arbitration power in the disputes resolution procedure of an enterprise agreement may be exercised only in relation to certain specified categories of dispute (such as disputes about the application of the agreement or the NES), the Commission is not permitted to arbitrate any dispute falling outside these categories.” 22 (Emphasis added)

Conclusion

[40] Having decided that the dispute concerns the Applicant’s performance as an aged care nurse, this is not a matter that can be dealt with under the Enterprise Agreement. This is because the Enterprise Agreement only allows for the exercise of the Commission’s power in relation to matters arising from the Enterprise Agreement.

[41] The jurisdictional objection is upheld and the matter is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR601930>

 1   Confidential letter from the Employer to the Applicant dated 24 January 2018.

 2   Ibid.

 3   Confidential letter from the Applicant to the Employer dated 25 January 2018.

 4   Explanatory Memorandum, Fair Work Bill 2008 (Cth)at [2735].

 5 Respondent’s submissions dated 26 March 2018 at [2].

 6 Ibid at [4].

 7 Ibid at [7].

 8 Ibid at [6].

 9   Nurses Award 2010.

 10   Lutheran Services Aged Care Enterprise Agreement 2017.

 11 Respondent’s submissions dated 26 March 2018 at [11].

 12 Ibid at [12].

 13 Ibid at [15].

 14   Applicant’s submissions dated 26 March 2018 at page 5.

 15   Ibid.

 16   Ibid.

 17   Ibid at page 9.

 18   Ibid.

 19   Applicant’s Form F10 application lodged at Brisbane on 20 February 2018 at 3.1.

 20   Applicant’s submissions dated 26 March 2018 at page 1.

 21   [2015] FWCFB 1889.

 22 Ibid at [20].