National Tertiary Education Industry Union v University of South Australia
[2010] FWA 985
•17 FEBRUARY 2010
Note: An appeal pursuant to s.604 (C2010/2998) was lodged against this decision - refer to Full Bench decision dated 31 May 2010 [[2010] FWAFB 3544] for result of appeal.
[2010] FWA 985 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
v
University of South Australia
(C2009/103)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 17 FEBRUARY 2010 |
Matter in dispute relates to grievance procedures.
[1] On 17 July 2009 the National Tertiary Education Industry Union (NTEU) lodged an application through which it sought the assistance of Fair Work Australia in the resolution of a dispute involving the University of South Australia (the University). The dispute related to the operation of the University of South Australia Academic and Professional Staff Collective Agreement 2006 (the Agreement) and the application was made pursuant to the Agreement dispute resolution procedures. In general terms, the matter in dispute related to disciplinary processes implemented by the University with respect to an employee, Dr Tiver.
[2] The application was the subject of a number of conferences but no agreement has been reached. The matters that remain in dispute are the extent to which:
- sufficient particulars of allegations have been put to Dr Tiver to satisfy the requirements of clause 46.5(b) of the Agreement;
- clause 46.5(b) is a prerequisite for the commencement of proceedings pursuant to clause 46.5(f);
- the University has properly made a decision to refer the allegations against Dr Tiver to a disputes committee;
- the NTEU is entitled to decline to participate in the constitution or the operation of the proposed disputes committee, and
- Fair Work Australia has the capacity to determine a dispute about the operation of a disputes committee pursuant to clause 45.6.
[3] In December 2009, the NTEU and the University agreed that these matters should be referred to me for arbitration consistent with clause 43 of the Agreement. Both parties agreed on a process of exchanging and providing written submissions.
[4] A further conference was convened in January 2010 to clarify the provision and exchange of information. At this conference, the parties both agreed that I should also be asked to consider the extent to which the University was legitimately able to suspend Dr Tiver with pay.
[5] This decision takes into account all of the information provided to me. It is founded on clause 43.8 of the Agreement which relevantly states:
“…..
a) The AIRC may conciliate the dispute in a manner that it believes will be most
constructive in resolving the dispute.
b) If the matter(s) in dispute remain unresolved following conciliation, the AIRC may
arbitrate the dispute. In so doing the AIRC may exercise the procedural powers in
relation to hearings, witness evidence, interim decisions and submissions which are
necessary to make such dealing effective.
….”
[6] Fair Work Australia has succeeded the Australian Industrial Relations Commission for this purpose. The approach I have followed is consistent with the procedural requirements set out in the remainder of clause 43.
[7] I have set out below a brief summary of the relevant dealings between Dr Tiver and the University. Whilst I have noted that Dr Tiver lodged a workplace bullying complaint in 2008 and that this complaint was ultimately referred to the South Australian Industrial Relations Commission, the matters before me do not require that I express conclusions with respect to that suite of issues other than to observe that this complaint reflects the ongoing deterioration in the relationship between Dr Tiver and the University.
[8] Over a protracted period of time in 2008 and 2009 Dr Tiver and various University managers engaged in e-mail, written and verbal exchanges over a range of disagreed issues which included, but were not limited to, management and attendance issues and communication protocols and courtesies. A significant element in dispute related to the University decision to restructure the curriculum in the area taught by Dr Tiver. Dr Tiver was involved in the articulation of a number of concerns about this process and general direction. This matter, including Dr Tiver’s complaints of bullying, were the subject of a formal dispute notification on the part of the NTEU and Dr Tiver’s complaints to Worksafe SA. In February 2009 the University advised that, following an independent investigation, it did not propose to take any further action with respect to Dr Tiver’s bullying complaint. Dr Tiver subsequently elected to pursue her bullying complaint to Worksafe SA.
[9] In April 2009 the University set out various of its own concerns regarding Dr Tiver’s behaviour and invited Dr Tiver to show cause as to why the University should not pursue disciplinary action in line with clause 46 of the Agreement.
[10] This clause is set out in full later in this decision. For the current purposes it is sufficient to note that this clause identifies disciplinary actions open to the University depending on the nature of the alleged misconduct on the part of an employee.
[11] There followed a series of discussions involving the University and the NTEU over the proposed resolution of the University concerns with respect to Dr Tiver’s behaviour. These endeavours did not resolve the University concerns.
[12] On 17 June 2009 the University provided a formal notice to Dr Tiver that it would commence action pursuant to clause 46 of the Agreement. The University advised that it was of the view that Dr Tiver’s conduct, actions and behaviours impeded the effective operation of the relevant discipline. This advice provided examples of this alleged behaviour and specific allegations. It requested a response to these allegations in accordance with clause 46.5(b)(ii) of the Agreement within 10 days.
[13] The NTEU responded on behalf of Dr Tiver on 24 June 2009. This response invited the University to withdraw its 17 June 2009 letter on the basis that this letter did not comply with the requirements of clause 46.5(b)(i) in as much as it contained insufficient detail.
[14] The University responded to this advice on 3 July 2009. It declined to withdraw the 17 June 2009 letter and detailed its position with respect to the basis of the charges against Dr Tiver. This letter provided a further week for Dr Tiver to respond.
[15] The matter was referred to Fair Work Australia on 17 July 2009. On 30 July 2009 I issued a statement in the following terms:
“[1] The National Tertiary Education Industry Union (NTEU) has sought the assistance of Fair Work Australia in the resolution of a dispute with the University of South Australia (the University) pursuant to the dispute resolution provisions of the University of South Australia Academic and Professional Staff Collective Agreement 2006 (the Agreement).
[2] This matter was the subject of a conference on 29 July 2009. The parties reached the following interim understanding.
[3] The University takes Dr Tiver’s position as denying the allegations in full. The University will take into account Dr Tiver’s earlier detailed positions. It will provide advice to the NTEU detailing the actions it next proposes to take pursuant to clause 46 of the Agreement and the anticipated time frames associated with these actions. Depending on the NTEU position in this respect, the matter may be returned to Fair Work Australia for a further conference.”
[16] On 3 August 2009 the University confirmed its position that, pursuant to clause 46.5(f) the matter would be "referred to a Dispute Committee within a reasonable time as detailed in clause 43.6" (the University correspondence of 3 August 2009). This letter detailed the University's understanding of the constitution of the Dispute Committee and asked that Dr Tiver advise of her nominated representative.
[17] The parties were subsequently unable to reach agreement on the extent to which clause 46.5(b)(i) had been complied with, and it is this disagreement which initiated the return of the matter to Fair Work Australia.
[18] On 15 December 2009 the University wrote to Dr Tiver providing additional information and material, in what the University said was an attempt to eliminate the need for the matter to be determined by Fair Work Australia. This 15 December 2009 letter provided further examples of the behaviour which the University alleged relative to Dr Tiver. It sought agreement from the NTEU that this matter should not proceed and provided formal advice to Dr Tiver of her suspension from duty with pay until further notice.
[19] The NTEU rejected the University's contention that the arbitration should be avoided in correspondence of 23 December 2009 and confirmed its position that the 17 June 2009 advice was invalid pursuant to the Agreement.
[20] Both parties have provided a substantial quantity of material for my consideration, although they have continued to dispute the extent to which adequate information has been provided so as to sustain their respective positions.
[21] I convened a further conference on 22 January 2010. At this conference the parties debated the extent to which there had been proper compliance with my directions of 9 December 2009, but fundamentally agreed that the matter should proceed to arbitration. Further, there was agreement that my considerations should also address the extent to which the University was entitled to suspend Dr Tiver with pay. An opportunity for additional submissions in this respect was provided to both parties.
[22] Clauses 44, 45 and 46 of the Agreement state:
“44. DISCIPLINARY PROCEDURES
44.1 These procedures do not apply to casual staff members and staff members serving a probationary period.
44.2 For the purpose of this section, the Vice Chancellor’s nominee will be the member of the Senior Management Group with responsibility for Human Resources unless otherwise determined.
44.3 Disciplinary action may only be taken by the Vice Chancellor and in accordance with the provisions of this Agreement.
44.4 The University and staff member may agree to undertake an alternative process in lieu of clauses 45 and 46. Any such agreement will be in writing.
45. DISCIPLINARY ACTION FOR UNACCEPTABLE PERFORMANCE
45.1 A staff member’s performance may be considered by their supervisor to be unacceptable when:
a) The staff member has refused to participate in a performance management process, or has unreasonably frustrated the reaching of agreement on a performance management plan; or
b) Their performance remains unsatisfactory following the completion of a reasonable period of performance management in accordance with the performance management guidelines and sub clause 45.2; or
c) The performance of their duties is so deficient as to constitute an unacceptable risk to the staff member or other staff members or students or other members of the University, or to the reputation of the University.
45.2 Where a supervisor, following a reasonable period of performance management conducted in accordance with the performance management guidelines, is of the view that the performance of a staff member has become unacceptable, they shall counsel the staff member on the nature of improvement required and the time within which reasonable improvement can be expected. A record of the counsel given shall be kept and a copy supplied to the staff member concerned.
45.3 Where a supervisor believes that counselling has not produced the desired improvements in performance, the supervisor shall make a formal report to the Vice Chancellor’s nominee that the performance of a staff member is unacceptable. Such a report shall state clearly the aspects of performance seen as unacceptable and the record of attempts to remedy the problem. The supervisor shall provide the staff member with a copy of the report at the time it is submitted. The staff member shall be entitled to ten (10) working days to submit to the Vice Chancellor’s nominee a written response to the supervisor’s report.
45.4 Upon receipt of the supervisor’s report and any written response from the staff member, the Vice Chancellor’s nominee shall first satisfy himself/herself that the procedures set out in sub clauses 45.1, 45.2 and 45.3 have first been completed.
45.5 The Vice Chancellor’s nominee may then decide to:
a) take no further action;
b) refer the matter back to the supervisor to ensure that the steps referred to in sub clause 45.4 are complied with in substance and in a manner appropriate to the circumstances;
c) Refer the matter to the Vice Chancellor with a recommendation to take disciplinary action, as defined in sub clause 46.3.
45.6 The Vice Chancellor shall advise the staff member in writing of any decision made in accordance with sub clause 46.3 and such a decision shall take effect no earlier than five (5) working days from the receipt of the Vice Chancellor’s nominee’s written advice.
45.7 If within five (5) working days of the written advice referred to in sub clause 45.6, the Vice Chancellor receives from the staff member a written request for a review of the decision, the Vice Chancellor shall refer the matter to a Dispute Committee in accordance with clause 43. The function of the Dispute Committee is to assess whether or not the processes related to this clause have been properly applied. The Dispute Committee shall act in such a way as to ensure that fairness, natural justice and due process are observed and practiced. This shall include, but not be limited to, providing the opportunity for the staff member to be heard, to be given adequate opportunity to answer findings or allegations, to be represented in proceedings of the Committee, to present and challenge evidence, and to make submissions. Proceedings shall be conducted in camera unless otherwise agreed between the staff member and the University. The committee shall keep a tape record of the proceedings, but not its own deliberations, which shall be available on request to either the University or staff member.
45.8 On receipt of the report of the Dispute Committee and having considered its findings on the facts related to the unacceptable performance, the Vice Chancellor may take disciplinary action.
45.9 Nothing in this clause prevents the Vice Chancellor or Vice Chancellor’s nominee on his or her own motion referring a question of possible unacceptable performance to a supervisor for appropriate action.
46. MISCONDUCT/ SERIOUS MISCONDUCT
46.1 Misconduct
For the purposes of this clause, misconduct occurs when a staff member breaches their obligations under their contract of employment. Examples of misconduct include but are not limited to:
a) Significant breaches of policies, codes of conduct and other reasonable instructions;
b) Unauthorised absence from duty; and
c) Inappropriate use of University property and facilities.
46.2 Serious Misconduct
Serious misconduct is behaviour by a staff member that causes serious detriment to the University or serious risk to:
• The health or safety of a staff member, student, other member of the University or visitor to the University; and/or
• The reputation of the University.
Examples of serious misconduct include but are not limited to:
a) Threatened or actual assault of another staff member, student or member of the public;
b) Serious conflict of interest;
c) Acts of dishonesty in relation to University property and facilities i.e. misappropriation or repeated damage or misuse of University property or facilities;
d) Serious or repeated bullying, abuse or sexual harassment of another staff member, student or member of the public;
e) Serious failure to observe occupational, health, safety and welfare policies, instructions and requirements; and
f) Refusal to carry out a lawful and reasonable instruction that is consistent with the staff member’s contract of employment.
46.3 Disciplinary Action
Action to discipline a staff member for misconduct or serious misconduct may only be taken by the Vice Chancellor, and means:
a) Formal censure or counselling; and/or
b) Suspension with or without pay for a reasonable period; and/or
c) Withholding of an increment; or
d) Demotion by one or more increments; or
e) Demotion by one or more classification levels; or
f) Termination of employment (for serious misconduct only).
46.4 Academic Freedom, Whistle Blowing and Participation in University Governance Statements by staff which have the potential to be seen as damaging the reputation or business of the University will not be treated as misconduct where the making of the statement is consistent with the University’s Code of Ethical Conduct and:
a) Is made by an academic staff member and concerns a matter within their field of academic expertise;
b) Brings to public attention a matter on which the University has breached its act, policies, or accepted norms of practice for universities; and
c) Is made by a member of staff contributing to debate of a matter being considered by Council or one of its Committees.
46.5 Disciplinary Action for Misconduct/Serious Misconduct
a) Before the Vice Chancellor takes disciplinary action against a staff member for reasons amounting to misconduct or serious misconduct, the Vice Chancellor’s nominee must take the steps in this clause, except that, where a matter which may involve misconduct or serious misconduct has been dealt with in good faith as if it were a case of unacceptable performance under clause 45, the procedures of this clause are not required, but the provisions of clause 45 including notice periods and review procedures must be followed.
b) Any allegation of misconduct/serious misconduct shall be considered by the Vice Chancellor’s nominee. If the Vice Chancellor’s nominee believes such allegations warrant further investigation he/she shall:
i) notify the staff member in writing and in sufficient detail to enable the staff member to understand the precise nature of the allegations, and to properly consider and respond to them;
ii) require the staff member to submit a written response within ten (10) working days.
c) The Vice Chancellor’s nominee may suspend the staff member on full pay at the time of notifying the Vice Chancellor in accordance with sub clause 46.5 b) above, or may suspend the staff member without pay if the Vice Chancellor’s nominee is of the view that the alleged conduct amounts to conduct of a kind envisaged in sub clause 46.2. Provided that:
i) where suspension without pay occurs at a time when the staff member is on paid leave of absence the staff member shall continue to receive a salary for the period of leave of absence;
ii) the staff member may engage in paid employment or draw on any recreation leave or long service leave credits for the duration of the suspension without pay;
iii) the Vice Chancellor’s nominee may at any time direct that salary be paid on the ground of hardship;
iv) where a suspension without pay has been imposed and the matter is subsequently referred to a Dispute Committee, the Vice Chancellor’s nominee shall ensure that the Committee at its first meeting considers whether suspension without pay should continue and recommends whether the suspension should continue or not.
d) If the allegations are denied by the staff member and the Vice Chancellor’s nominee is of the view that there has been no misconduct or serious misconduct he/she shall immediately advise the staff member in writing, and may, by agreement with the staff member, publish the advice in an appropriate manner.
e) If the allegations are admitted in full by the staff member and the Vice Chancellor’s nominee is of the view that the conduct amounts to misconduct or serious misconduct the matter will be referred to the Vice Chancellor. The Vice Chancellor shall advise the staff member in writing of their decision on the recommendations and the operative date of the disciplinary action.
f) If the allegation is denied in part or in full or if the staff member has not responded to the allegations the Vice Chancellor’s nominee shall refer the matter to a Dispute Committee within a reasonable period of time in accordance with clause 43, unless he/she decides to take no further action or refer the matter to the Vice Chancellor. The Vice Chancellor may counsel or censure the staff member for unacceptable behaviour and take no other action.
g) During any period of suspension the staff member may be excluded from the University, provided that he or she shall be permitted reasonable access to the University for the preparation of his or her case and to collect personal property.
h) A Dispute Committee convened under sub clause 46.5 f) shall act in such a way as to ensure that fairness, natural justice and due process are observed and practiced. This shall include, but not be limited to, providing the opportunity for the staff member to be heard, to be given adequate opportunity to answer findings or allegations, to be represented in proceedings of the Committee, to present and challenge evidence, and to make submissions. Proceedings shall be conducted in camera unless otherwise agreed between the staff member and the University. The committee shall keep a tape record of the proceedings, but not its own deliberations, which shall be available on request to either the University or staff member. The committee may interview any person it thinks fit, in the presence of the staff member and advocate, in order to establish the merits of the case or facts of the matter under dispute.
i) On receipt of the report of the Dispute Committee, and having considered its findings on the facts related to the alleged misconduct or serious misconduct, the Vice Chancellor may take disciplinary action. The staff member shall be advised of the Vice Chancellor’s decision within ten (10) days of the Vice Chancellor receiving the report from the Dispute Committee.
j) Where a staff member has been suspended without pay pending the decision of the Vice Chancellor, then any lost income shall be reimbursed if there was no serious misconduct. However, a decision taken by the Vice Chancellor in his or her discretion not to dismiss or impose another penalty shall not be construed as an admission that there was no conduct justifying suspension without pay.
k) If having considered the Committee’s findings on the facts relating to the alleged misconduct or serious misconduct, the Vice Chancellor is of the view that there has been no misconduct or serious misconduct he/she shall immediately advise the staff member in writing, and may, by agreement with the staff member, publish the advice in an appropriate manner.
46.6 Research Misconduct
a) This clause is adopted from the AVCC/NHMRC statement/guidelines on research misconduct.
b) For the purposes of this sub clause:
"Misconduct" or "Scientific misconduct" is taken here to mean fabrication, falsification, plagiarism, or other practices that seriously deviate from those that are commonly accepted within the scientific community for proposing, conducting, or reporting research. It includes the misleading ascription of authorship including the listing of authors without their permission, attributing work to others who have not in fact contributed to the research, and the lack of appropriate acknowledgment of work primarily produced by a research student/trainee or associate. It does not include honest errors or honest differences in interpretation or judgements of data.”
[23] Without reciting these lengthy clauses, some broad principles appear clear. Clause 45.1 details the criteria upon which the University can found concern over unacceptable performance. Clause 45.2 requires the relevant supervisor to initially counsel the employee involved. Clauses 45.3 requires escalation of continuing concerns to the Vice Chancellor’s nominee through a formal report on the basis that a copy of that report is to be provided to the employee who is to be given 10 days to provide to the Vice Chancellor’s nominee, a response to it.
[24] Clause 45.4 requires the Vice Chancellor’s nominee to be satisfied that the procedures in clause 45.1, with a 5.2 and 45.3 have been complied with.
[25] Clause 45.5 provides that the Vice Chancellor’s nominee may decide if the prerequisite procedures should be repeated, or decide to take no further action or decide that the matter should be referred to the Vice Chancellor with a recommendation to take disciplinary action as defined in clause 46.3.
[26] Clause 46.3 refers to a range of options open to the Vice Chancellor to deal with misconduct and serious misconduct. Serious misconduct is self defined in clause 46.2 as distinct from the misconduct referenced in clause 46.1.
[27] Clause 45.6 requires the Vice Chancellor to advise of any decision and provides a minimum timeframe for any such decision based on the Vice Chancellor’s Nominee’s decision. Clause 45.7 provides an employee with a right to request a review of the Vice Chancellor Nominees’ decision referenced in clause 45.6. A review, presumably of the conclusion reached by the Vice Chancellor, is undertaken by a Dispute Committee in accordance with clause 43 of the Agreement. Clause 45.7 sets out the considerations to which the Dispute Committee must have regard.
[28] Clause 45.8 provides the Vice Chancellor with the capacity to take disciplinary action, having considered the findings of any Disciplinary Committee.
[29] Clause 46.5 is also relevant in that it sets out a sequence of obligations on, and actions available to the Vice Chancellor's Nominee. To a significant extent clause 46.5 details procedural and rights-based provisions.
[30] I note that other components of clause 46 do not appear to be particularly pertinent to this situation.
Issue 1 - Have sufficient particulars of allegations been put to Dr Tiver to satisfy the requirements of clause 46.5(b) of the Agreement?
[31] In considering this issue I have noted that the University correspondence to Dr Tiver of 25 May 2009 and Dr Tiver’s response on 29 May 2009 have not been provided to me. However, the starting point for my consideration of whether clause 46.5 has been satisfied, must be the correspondence of 17 June 2009.
[32] There is no question that this correspondence details allegations in writing. The issue is whether this correspondence provides sufficient detail to enable Dr Tiver to understand the precise nature of the allegations, and to properly consider and respond to them.
[33] This letter details five examples of behaviour which the University asserts were contrary to its Code of Ethical Conduct. It further details specific allegations of a breach of notes 1, 3 and 7 of that Code. The first of these relates to the integrity, fairness, honesty, impartiality and the dignity and respect shown to others. The second relates to furthering the interests of the University, its students, clients, associates and the broader community. The third relates to the representation of the University. In each case the 17 June 2009 correspondence refers to explanatory notes and details the allegations in the following terms:
“In relation to Note 1, it is alleged that you have failed to comply with this section of the Code by not acting in a manner consistent with the University’s expectation that staff treat each other with dignity and respect.
In relation to Note 3, it is alleged that you have failed to comply with the section of the Code by not acting in a manner consistent with the University’s expectation that staff endeavour to further the interests of the University.
In relation to Note 7, it is alleged that you have failed to comply with this section of the Code by not acting in a manner consistent with the University’s reputation and expectation that staff conduct themselves in an ethical manner.”
[34] Dr Tiver and the NTEU position with respect to the 17 June 2009 letter, was set out in its correspondence of 24 June 2009. This letter asserts that there is only one charge of a failure to comply with the Code of Ethical Conduct. It appears that Dr Tiver disputes the reference to serious misconduct and the consequences that may flow from that. More significantly, the NTEU asserts that this letter does not allege any position or actual conduct by Dr Tiver and as such asserts that there is insufficient detail to enable her to understand the precise nature of the allegations, and to properly consider and respond to them.
[35] I consider the allegations set out in the 17 June 2009 correspondence, whilst clear, must be viewed in the context of specific examples so as to allow Dr Tiver to properly understand the University's concerns, and hence respond. The five examples provided go to general behaviours rather than the specific instances. It is clear from all the material before me that Dr Tiver deals with specific situations. Hence, I consider that the generalisation of the five examples would make it difficult for her to properly respond.
[36] The University correspondence of 15 December 2009 provided additional material and information in support of the allegations set out in the 17 June 2009 letter. I consider this additional detail, together with the supporting documentation, meets the requirements of clause 46.5(b). On the basis of this material, Dr Tiver can be in no doubt about the allegations and the instances which gave rise to them such that she can fairly respond to them or, if necessary, found an application for a review by a Dispute Committee pursuant to clause 45.7 or 46.5(f).
[37] This conclusion could be taken as indicating that Dr Tiver had 10 days in which to respond to the 15 December 2009 letter. Given the extent to which these dispute settlement processes had progressed, I do not consider this to be a reasonable proposition and recommend that her 10 days should commence from the date of this decision.
Issue 2 - Whether Clause 46.5(b) is a prerequisite for the commencement of proceedings pursuant to clause 46.5(f).
[38] Clause 46.5 must be read in concert with the progression of a disciplinary action pursuant to clause 45. In this respect clause 46.5 deals with three subjects. Subclauses (a), (b), (c), (d), (e) and (f) all relate to the circumstances and the obligations on the Vice Chancellor’s Nominee in so far as that Nominee has functions established by clause 45.4 and 45.5. The steps set out in these parts of 46.5 are mandatory. Clause 46.5(f) distinguishes between functions open to the Vice Chancellor's nominee and the Vice Chancellor in person. Clause 46.5(f) establishes a requirement for the Vice Chancellor’s nominee to refer a matter to a Dispute Committee if the allegation is either denied in part or in full, or not responded to and the Vice Chancellor's nominee decides to do anything other than take no further action or refer the matter to the Vice Chancellor.
[39] In this context it appears to me to be a requirement that the allegations be properly put pursuant to clause 46.5(b) before clause 46.5(f) can be invoked. If Dr Tiver responds in full to the allegations, the Vice Chancellor's nominee may conclude that the matter should not proceed further, in which event the provisions of clause 46.5(f) would not need to be applied. Alternatively, Dr Tiver’s response to the 15 December 2009 expanded letter of allegations may be an important consideration for consideration by any Disputes Committee, in the event that one is required. Finally, if, despite an extended opportunity to respond to the 15 December 2009 letter, Dr Tiver does not respond, clause 46.5(f) may then take effect.
[40] I therefore consider that, at the current time a reference to a Dispute Committee would be premature and Dr Tiver should be given the opportunity to respond to the 15 December 2009 letter within 10 days.
Issue 3 – Whether the University has properly made a decision to refer the allegations against Dr Tiver to a disputes committee
[41] Given the conclusions I have reached above I consider that the reference to a disputes committee is premature at this time but that it might obviously assume significance in the near future.
Issue 4 - Whether the NTEU is entitled to decline to participate in the Constitution or the operation of the proposed Dispute Committee?
[42] Given my earlier conclusions I have addressed this question prospectively. If a Dispute Committee is required, I consider that clause 46.5(f) relies on clause 43.6 which deals with such committees in the following terms:
“43.6 Stage 3
a) If a dispute remains unresolved, the Vice Chancellor shall be formally notified and a Dispute Committee shall be established within a further ten (10) working days of conclusion of the process outlined in sub clause 43.5 above.
b) The Dispute Committee shall consist of:
i) One (1) nominee of the Vice-Chancellor; and
ii) One (1) nominee (excluding a currently practicing solicitor or barrister determined by the staff elected representatives of the CAIC; and iii) One (1) nominee agreed upon by the Vice Chancellor the staff elected representatives of the CAIC.
c) In the event of a dispute relating to a classification matter, the persons nominated to the Dispute Committee must have training and/or understanding in relation to classification matters.
d) The Dispute Committee shall act in such a way as to ensure that fairness, natural justice and due process are observed and practiced. The committee may take into account such further materials as it believes appropriate to substantiate or otherwise the facts in dispute, and may interview any person it thinks fit to establish the merits or facts of the particular case.
e) The Dispute Committee will advise the Vice Chancellor and the staff member of its recommendation in relation to the dispute within five (5) working days following the conclusion of a hearing.”
[43] The "CAIC" referenced in this provision is defined in clause 10 in the following terms:
“10.3 The CAIC will be established to assist with the effective implementation of this Agreement. The CAIC will comprise:
a) A Chairperson elected by and from the CAIC;
b) Two (2) persons nominated by the NTEU from time to time;
c) One (1) person nominated by the LHMU from time to time;
d) One (1) person nominated by the CPSU from time to time;
e) Two (2) academic staff members elected by all academic staff;
f) Two (2) professional staff members elected by all professional staff;
g) Director: Human Resources;
h) Senior Consultant: Workplace Relations;
i) Senior Consultant: Human Resource Services;
j) Representative of the Heads of School; and
k) Representative of the Directors/Managers.
10.4 Members elected to the CAIC shall serve for the life of this Agreement and will be eligible for re-election. Should an elected member cease to be a staff member of the University or resign from the CAIC during her or his term, the University will conduct an election commencing within four (4) weeks to replace the member until the next scheduled election. The election shall be conducted in accordance with the election procedures for the University Council.”
[44] Consequently, while there is no obligation on the NTEU to participate directly in the operation of a Dispute Committee, there is a clear obligation on the CAIC and to the extent that the NTEU may seek to frustrate this obligation, I consider that it would then be in breach of its obligations under the Agreement.
Issue 5 - Whether Fair Work Australia has the capacity to determine a dispute about the operation of a Dispute Committee pursuant to clause 45.6.
[45] The Dispute Resolution procedure established by clause 43 provides for a Dispute Committee as a step in the resolution of disputes. The subsequent stage in the dispute resolution process is that the matter is referred to the Australian Industrial Relations Commission. Clause 45 and 46 provide for the application of the Dispute Committee in specific circumstances.
[46] There appears to me to be the capacity to seek the assistance of Fair Work Australia with respect to whether the conditions for a reference to the Dispute Committee have been met, whether the proper operation of that committee is possible, or whether, in retrospect, it has properly fulfilled its function.
Issue 6 - Whether the University has the capacity to suspend Dr Tiver with pay in these circumstances
[47] Clause 46.3 provides an express capacity for the Vice Chancellor to suspend an employee. I have taken it that this suspension right is qualified by the process in clause 46.5 such that it may apply in clause 46.5(f).
[48] Dr Tiver was advised that she was suspended on 15 December 2009. I have taken it that this advice, signed by the Director: Human Resources was provided by the Vice Chancellor’s nominee.
[49] Clause 46.5(c) provides the Vice Chancellor’s nominee with the capacity to effect a paid suspension "at the time of notifying the Vice Chancellor in accordance with clause 46.5(b)" or, without pay in other defined situations.
[50] The referencing of clause 46.5(c) to the time of notifying the Vice Chancellor in accordance with clause 46.5(b) is somewhat confusing because clause 46.5(b) contains no explicit obligation to inform the Vice Chancellor. However, I have taken it there must be an implicit obligation to do so for two reasons. Firstly, the Vice Chancellor’s Nominee is just that, and the investigation process ultimately proceeds to the Vice Chancellor. Secondly, irrespective of the absence of an express requirement for notification, in the event of such a notification, I consider that the Vice Chancellor’s nominee may decide to suspend Dr Tiver.
[51] I draw attention to the requirements of clause 46.5(g) relative to the reasonable access to be given to Dr Tiver.
[52] Additionally, as a matter of equity given this long period of disputation, I would recommend that both parties take every possible step to expedite the conclusion of the investigation process. Finally, I note the propriety of any suspension may be an early issue considered by any dispute committee pursuant to clause 46.5(c)(iv).
Conclusion
[53] I consider that the 15 December 2009 letter sufficiently details the allegations and background so as to enable Dr Tiver to understand the precise nature of the allegations and to properly consider and respond to them.
[54] I recommend that she be given 10 days from today to provide this response and, depending on their response and the University's conclusions, the matter may then need to proceed to a Dispute Committee which should be properly formed in accordance with the Agreement. I envisage Dr Tiver will remain suspended on pay for the present time but that both parties commit to completing the investigation process as a matter of urgency.
SENIOR DEPUTY PRESIDENT
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<Price code C, PR993553>
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