Ms Pamela Boxsell v ACT Government T/A Act Government Health Directorate

[2018] FWC 141

[2018] FWC 141

FAIR WORK COMMISSION

DECISION

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

Ms Pamela Boxsell
v
ACT Government T/A ACT Government - Health Directorate
(C2017/5285)

DEPUTY PRESIDENT KOVACIC CANBERRA, 8 JANUARY 2018

Application for review of decision in accordance with the ACT Public Service Nursing and Midwifery Enterprise Agreement 2013-2017 - Head of service’s decision to accept the recommendation of the majority of the Appeal Panel should not be disturbed.

[1] On 21 September 2017 the Australian Nursing and Midwifery Federation (ACT) (the ANMF lodged an application on behalf of Ms Pamela Boxsell (the Applicant) under s.739 of the Fair Work Act 2009 (the Act) and in accordance with the ACT Public Service Nursing and Midwifery Enterprise Agreement 2013-2017 1 (the Agreement). Specifically, Ms Boxsell in accordance with clause 182 of the Agreement sought a review of a decision of the head of service under clause 180.12 of the Agreement. The decision by the head of service was to accept the recommendation of the majority of an appeal panel and uphold an earlier decision to impose a sanction as a result of misconduct.

[2] By way of background, on 6 July 2017 the ANMF lodged an application for directions on procedure seeking clarification as to the procedure for initiating an external review under clause 182 of the Agreement. That application was the subject of conferences on 14 and 26 July 2017 which failed to resolve the matter. In subsequent developments, the Fair Work Commission (the Commission) wrote to the ANMF on 28 July 2017 in the following terms:

“As discussed in the conference on 26 July 2017, the following directions on procedure are issued:

1. Consistent with clause 182.1 of the ACT Public Service Nursing and Midwifery Enterprise Agreement 2013-2017 (the Agreement) the Commission will review the head of service decision under 180.12 of the Agreement.

2. The ANMF will lodge an application for the Commission to deal with a dispute in accordance with a dispute settlement procedure as soon as practicable after receipt of this letter.

3. The ACT Government as represented by the Health Directorate (the Respondent) is to file any submissions and evidentiary material on which it intends to rely within 14 days of being served with the above application.

4. The ANMF will lodge any submissions in reply within 7 days of being served the Respondents materials. If no submissions in reply are to be submitted, the ANMF is to advise my chambers as soon as practicable.

5. The application will be dealt with on the papers.

6. If the Commission considers that any additional information is required, a telephone conference will be convened.

7. Please feel free to contact my chambers on … should you have any questions regarding the above.”

[3] As noted above, the ANMF lodged the application in this matter on 21 September 2017.

[4] For the reasons outlined below, I have concluded that the head of service’s decision to accept the recommendation of the majority of the Appeal Panel should not be disturbed.

Background

[5] A brief background to the head of service decision which Ms Boxsell seeks to have reviewed was set out in an attachment to her application in this matter 2. The background reads as follows:

“Background

1. On 19 May 2016, Ms Boxsell was informed by the Executive Director of MHJHADS [Mental Health, Justice Health and Alcohol and Drug Services], Ms Tina Bracher, that allegations of possible misconduct (from the period of 27 June 2015 – 28 October 2015) had been made against her, whilst working at Brian Hennessey Rehabilitation Centre (BHRC), and that an investigation would be conducted. (Appendix B)

2. On 25 November 2016, Ms Boxsell received correspondence from the delegate dated 24 November 2016. This correspondence outlined that the delegate had determined to terminate the employment of Ms Boxsell, and that Ms Boxsell had until 12 December 2016 to respond to this proposal in writing, before a final determination was made. (Appendix C)

3. On 2 December 2016, the ANMF, on behalf of Ms Boxsell, requested a copy of the attachments to the report from the Health Directorate, these were received by the ANMF on 7 December 2016. Given the number, and length, of the relevant attachments to the report, the ANMF requested an extension to respond by COB 16 December 2016. This was agreed to by the delegate.

4. On 16 December 2016, the ANMF, on behalf of Ms Boxsell, responded to the correspondence of 24 November 2016. A statement made by Ms Boxsell is annexed to this correspondence. (Appendix D)

5. On 7 February 2017, Ms Boxsell met with Mr Aloisi to discuss the correspondence that set out the final decision, and the decision itself, to take discipline action against Ms Boxsell (Appendix A).”

[6] The sanction imposed by Mr Aloisi was to transfer Ms Boxsell permanently to a lower classification level, i.e. Registered Nurse Level 1, but still located in the Adult Acute Mental Health Services program, to issue a written warning and for Ms Boxsell to be formally counselled by the Executive Director 3.

[7] On 16 February 2017 the ANMF on behalf of Ms Boxsell wrote to the Convener of Appeals in the ACT Government’s Chief Minister and Treasury Directorate seeking to appeal the decision of 7 February 2016 to take disciplinary action against her on the grounds that the principles of natural justice had not been complied with in coming to the decision and the decision was not appropriate in all the circumstances 4. In that correspondence the ANMF submitted that the preferred decision in the matter was that “all allegations and sanctions against Ms Boxsell be withdrawn, and the process be discontinued.”

[8] On 27 March 2017 an Appeal Panel was established in accordance with Section R of the Agreement. In its report which was signed on 9 May 2017, the Appeal Panel recommended as follows:

“The appeal panel in the matter of Ms Michelle Boxsell, recommends that the findings of misconduct and the sanction imposed be confirmed. Ms Monaghan [the employee nominee on the Appeal Panel] dissents from this recommendation.” 5

[9] On 31 May 2017 Ms Patricia O’Farrell, Executive Director People and Culture with ACT Health wrote to Ms Boxsell in the following terms:

“I am writing in regard to the recent appeal panel report I received on 5 May 2017.

…

As the delegate in this matter and in accordance with Section R of the ACT Public Service Nursing and Midwifery Enterprise Agreement 2013-2017, I have considered the report from the appeal panel and have decided to accept the recommendation of the appeal panel report.

The findings of misconduct are confirmed in the following sanctions will take effect upon receipt of this letter.

1. You will be transferred to a lower classification level, at Registered Nurse Level 1

2. You will receive a written warning and a formal counselling from your Executive Director.” 6

[10] It is the decision of Ms O’Farrell which Ms Boxsell seeks to have the Commission review in accordance with clause 182 of the Agreement.

The Applicant’s case

[11] Ms Boxsell submitted in her application that the grounds of appeal and the corresponding reasons as set out in the ANMF’s correspondence of 16 February 2017 were sound and remained relevant and were not extinguished by the reasons set out in the Appeal Panel Report. Also in her application Ms Boxsell stated that as she was not procedurally able to raise issues with the Appeal Panel Report she sought the Commission’s indulgence to consider issues with the Report which formed the basis of the decision maker’s decision. Those issues were set out in an attachment to Ms Boxsell’s application 7. That document states among other things that “As the appeal mechanism afforded to Ms Boxsell under the relevant Enterprise Agreement does not allow a right of reply to the Appeal Panel’s report, the matters below outline the position of Ms Boxsell in regards to that Report, which formed the basis of the decision makers [sic] decision. This response does not seek, nor attempt, to introduce new evidence.”

[12] In her submissions in response, Ms Boxsell submitted that nothing in the Respondent’s submission should dissuade the Commission from varying the disciplinary actions taken by the Respondent. Beyond that, Ms Boxsell:

•  submitted that to associate her actions with bullying was disingenuous;

•  highlighted that her former classification as a Registered Nurse Level 2 was a personal classification which recognised her well-developed clinical and professional competencies and skills as opposed to a positional classification tied to a specific work area; and

•  contended that the Respondent’s submissions did not address either the unreasonableness of the relevant decision and sanction imposed, adding that she maintained that the principles of procedural fairness and natural justice were not complied with in the taking of the action or decision and that the sanction was not appropriate was unreasonable in the circumstances.

The Respondent’s case

[13] The Respondent submitted that the Commission should not disturb the delegate’s decision of 31 May 2017 for several reasons including that:

•  the submissions made on Ms Boxsell’s behalf did not raise any issues that resulted in the head of service’s decision being an unjust or unreasonable outcome;

•  Ms Boxsell’s submissions did not address or cavil with whether the impugned conduct occurred; and

•  Ms Boxsell had suggested in response to the initial proposed sanction of termination of employment that her hours be reduced to 0.8 FTE as an alternative sanction which would have resulted in a salary decrease of at least $18,000 per annum.

[14] In support of its submissions, the Respondent relied on the decisions in Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales 8 (XPT Case) and Lend Lease Project Management and Construction (Australia) Pty Limited v Construction, Forestry, Mining and Energy Union9(Lend Lease).

[15] In the alternative, the Respondent submitted that the sanction was commensurate with Ms Boxsell’s established misconduct which it described as tantamount to bullying and disrespectful to fellow staff. The Respondent further submitted that Ms Boxsell’s conduct provided a legitimate basis to give rise to the Respondent’s concerns that the Applicant’s classification level should be reduced so that she was not directly supervising staff or required by her position to provide directions and feedback to more junior staff. The Respondent contended that the sanction imposed balanced protecting the health and safety of Ms Boxsell and her colleagues. Finally, the Respondent noted that Ms Boxsell was not precluded from applying for vacancies at the Registered Nurse Level 2 in the future.

The Relevant Clauses of the Agreement

[16] The relevant provisions of the Agreement are set out below.

180.12 The head of service, after considering the report from an Appeal Panel under clause 180.10 will make a decision on any recommendation in the report and inform the appellant in writing of the reasons for that decision, within fourteen calendar days of receiving the report.

182. RIGHT OF EXTERNAL REVIEW

182.1 The employee or the employee’s union or other representative on the employee’s behalf, may seek a review by FWC of a decision of the head of service under clause 180.12 or clause 180.15.

182.2 The FWC will be empowered to resolve the matter in accordance with the powers and functions set out in Clause 163 of this Agreement. The decision of the FWC will be binding subject to any rights of appeal against the decision to a Full Bench in accordance with clause 163.15.

163. DISPUTE AVOIDANCE/SETTLEMENT PROCEDURE

163.1 The objective of these procedures is the prevention and resolution of disputes about:

(a) matters arising under this Agreement, including disputes about the interpretation or implementation of the Agreement; and

(b) the application of the National Employment Standards of the FW Act.

163.2 For the purposes of this clause, except where the contrary intention appears, the term parties refer to ‘parties to the dispute’.

163.3 All persons covered by the Agreement agree to take reasonable internal steps to prevent, and explore all avenues to seek resolution of, disputes.

163.4 An employee who is a party to the dispute may appoint a representative, which may be a relevant union, for the purposes of the procedures of this clause.

163.5 In the event that there is a dispute, the following processes will apply.

163.6 Where appropriate, the relevant employee or the employee’s representative will discuss the matter with the employee’s supervisor. Should the dispute not be resolved, it will proceed to the appropriate management level for resolution.

163.7 In instances where the dispute remains unresolved, the next appropriate level of management, the employee, the union or other employee representative will be notified and a meeting will be arranged at which a course of action for resolution will be discussed.

163.8 If the dispute remains unresolved after this procedure, a party to the dispute may refer the matter to the FWC.

163.9 The FWC may deal with the dispute in two stages:

(a) The FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) If the FWC is unable to resolve the dispute at this first stage, the FWC may then:

i. arbitrate the dispute; and

ii. make a determination that is binding on the parties.

163.10 The FWC may exercise any powers it has under the FW Act as are necessary for the just resolution or determination of the dispute.

163.11 A person may be assisted and represented at any stage in the dispute process in the FWC on the same basis as applies to representation before the FWC under section 596 of the FW Act.

163.12 All persons involved in the proceedings under clause 163.9 will participate in good faith.

163.13 Unless the parties agree to the contrary, the FWC will, in responding to the matter, have regard to whether a party has applied the procedures under this term and acted in good faith.

163.14 The parties agree to be bound by a decision made by the FWC in accordance with this clause.

163.15 However any party may appeal a decision made by the FWC in accordance with the FW Act.

163.16 Despite the above, the parties may agree to submit the dispute to a body or person other than the FWC. Where the parties agree to submit the dispute to another body or person:

(a) all of the above provisions apply, unless the parties agree otherwise; and

(b) a reference to the FWC in the above provisions will be read as a reference to the agreed body or person;

(c) all obligations and requirements on the parties and other relevant persons under the above provisions will be complied with; and

(d) the agreed body or person must deal with the dispute in a manner that is consistent with section 740 of the FW Act.

163.17 While the parties are trying to resolve the dispute using procedures in this clause:

(a) An employee must continue to perform their work as they would normally unless they have a reasonable concern about an imminent risk to their health or safety; and

(b) An employee must comply with a direction given by the head of service to perform other available work at the same workplace, or at another workplace, unless:

i. the work is not safe; or

ii. applicable workplace health and safety legislation would not permit the work to be performed; or

iii. the work is not appropriate for the employee to perform; or

iv. there are other reasonable grounds for the employee to refuse to comply with the direction.

Consideration of the issues

[17] Firstly, I should indicate that the Commission is empowered by clause 182 of the Agreement to resolve the matters involved in Ms Boxsell’s application in accordance with the powers and functions set out in the Dispute Avoidance/Settlement Procedure at clause 163 of the Agreement. Clause 163.9 provides that the Commission may deal with a dispute in two stages, the first including by mediation/conciliation and if unsuccessful then by arbitration, while clause 163.10 provides that the Commission may exercise any powers it has under the Act as are necessary for the just resolution or determination of the dispute.

[18] Specifically, clause 182 of the Agreement empowers the Commission review a decision of the head of service under clause 180.12 of the Agreement. Clause 180.12 refers to the head of service’s decision in respect of any recommendation in a report from an Appeal Panel under clause 180.10 of the Agreement. In other words, a review under clause 182 of the Agreement is not a review of the Appeal Panel’s findings/recommendation(s) but rather a review of the decision maker’s decision in respect of the Appeal Panel’s recommendation(s). I make this distinction because as previously mentioned Ms Boxsell in her application sought the Commission’s indulgence to consider issues with the Report which formed the basis of the decision maker’s decision. While a review under clause 182 is not a review of the Appeal Panel’s Report/recommendation, nevertheless some analysis of the Appeal Panel Report is necessary.

[19] The ANMF’s letter of 16 February 2017 in addition to setting out the broad grounds of appeal set out in more detail the specific reasons relied upon by Ms Boxsell. With regard to the first ground of the appeal, i.e. that the principles of natural justice were not complied with, the letter cited the following reasons:

•  the final decision regarding the sanction to be imposed was made by a party that was directly involved in the allegations and that as a result the final decision may have been subject to bias;

•  a number of matters raised by the ANMF in its correspondence of 16 December 2016 regarding the issue of procedural fairness and whether they were followed in this case were not properly considered and/or given appropriate weight;

•  the timeframes involved in the investigation were curiously long, thereby prejudicing Ms Boxsell in respect of her being able to recall events accurately.

[20] As to the second ground relied upon by Ms Boxsell, i.e. that the decision was not appropriate in all the circumstances, it was contended that given the above matters and the lack of natural justice afforded Ms Boxsell in the matter that the decision regarding the substantiation of the allegations against her and the application of sanctions was not appropriate when considering all of the circumstances.

[21] An examination of Appeal Panel Report indicates that the Appeal Panel dealt with each of the issues raised in the ANMF’s correspondence of 16 February 2017. Having considered all of the material related to the investigation, including the preliminary investigation and the investigation report and associated documentation, I consider the Appeal Panel’s consideration to have been thorough and the conclusions reached by the Appeal Panel open to it based on the material before it. As noted in the Appeal Panel Report, the material considered by the Appeal Panel included the notification to Ms Boxsell of the disciplinary investigation (dated 19 May 2016), the investigation report and attachments (dated 24 October 2016), the letter to Ms Boxsell of 24 November 2016 advising her of the outcome of the investigation and the proposed sanction, the ANMF’s letter of 16 December 2016, the letter of 6 February 2017 advising Ms Boxsell of the sanction to be imposed and the ANMF’s letter of 16 February 2017 to the Convenor of Appeals. In addition, the Appeal Panel noted that it had regard to Section O of the Agreement, the Misconduct and Discipline Policy of the ACT Department of Health and some additional material it requested regarding Ms Boxsell’s leave on the latter part of 2015 and the early part of 2016.

[22] Further, clauses 180.10 and 180.11 require an appeal panel to make a written report containing recommendations to the head of service and in doing so to provide reasons for its recommendations. As to the reasons for the Appeal Panel’s recommendation these are set out as follows:

“43 … these minor issues are not so significant in the view of the panel as to give rise to a question of legitimacy of the process. They also do not bring the allegations into question. It would appear that in fact, Ms Boxsell’s own evidence supports the bulk of the allegations that were found to have been proven.

…

50 Ms Monaghan is of the view that Ms Boxsell has clearly been found to have breached s.9 of the Public Sector Management Act 1994. However, she is also of the view that there are some mitigating circumstances that would justify a variation to the sanction, namely a reduction to the first increment of an RN2. The mitigating circumstances are …

51 The majority of the panel considered that in the circumstances, the sanction imposed is reasonable and should not be varied. It is concluded that Ms Boxsell’s behaviour was inconsistent with her responsibility as set out in S. 9(d) of the Act, to treat members of the public and other public employees with courtesy and sensitivity to their rights, duties and aspirations.” 10

[23] The above extract supports a finding that the Appeal Panel satisfied the requirements of clauses 180.10 and 180.11 of the Agreement.

[24] In the light of the Appeal Panel Report and recommendation it was in my view entirely open to the head of service in this case to confirm the decision to impose a sanction on Ms Boxsell. While, consistent with clause 182 of the Agreement, the head of service could have perhaps provided a more fulsome explanation of the reason(s) for her decision to accept the recommendation of the majority of the Appeal Panel, her failure to do so does not call into question the validity or the appropriateness of her decision. I also note that the head of service’s decision was made outside the fourteen calendar day timeframe specified in clause 180.12 of the Agreement. Again this does not undermine the validity of the decision.

[25] The Full Bench in Lend Lease referred to the XPT Case in the following way

“[26] The principle stated in the XPT Case was as follows:

“It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable.”

[27] It may be accepted that the above principle is one which should be taken into account and given significant weight in the exercise of an arbitral discretion concerning whether the Commission should intervene in relation to a lawful business management decision by an employer.” 11 (Underling added, endnotes not included)

[26] Drawing on the language in the XPT Case, the above analysis does not point to anything unjust of unreasonable in the head of service’s decision under clause 180.12 of the Agreement. While I appreciate that Ms Boxsell is aggrieved by the head of service’s decision to confirm the imposition of sanctions, based on the material before the Commission I do not consider that Ms Boxsell’s concerns regarding the decision (which primarily related to the Appeal Panel Report itself) are made out. As such, I do not consider that there is any basis for the Commission to disturb the head of service’s decision. Further, as previously noted, a review under clause 182 of the Agreement is a review of the head of service’s decision as opposed to a review of the Appeal Panel report.

Conclusion

[27] For all the above reasons, I have concluded that the head of service’s decision to accept recommendation of the majority of the Appeal Panel should not be disturbed. Accordingly the application is dismissed. An order dismissing the application will be issued in conjunction with this decision.

 1   AE407324

 2   Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure at Attachment E

 3   Ibid at Appendix A

 4   Ibid

 5   Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure at Attachment F

 6   Ibid at Attachment G

 7   Ibid at Attachment H

 8 (1984) 295 CAR 188

 9   [2015] FWCFB 1889

 10   Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure at Attachment F

 11   [2015] FWCFB 1889

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