Perampalam Arivalagan v Department of Transport

[2020] FWC 1792

[2020] FWC 1792

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Perampalam Arivalagan
v
Department of Transport
(C2020/1273)

DEPUTY PRESIDENT MANSINI MELBOURNE, 14 APRIL 2020

Application for an interim order to prevent termination of employment dismissed for want of jurisdiction.

[1] On 3 March 2020, Mr Perampalam Arivalagan (Applicant) applied to the Fair Work Commission (the Commission) to deal with a dispute under s.739 of the Fair Work Act 2009 (Cth) (the Act). The employer respondent is the Department of Transport, an agency of the State of Victoria (Department of Transport).

[2] Central to the dispute is a performance improvement process by a previous employer, VicRoads. The Department of Transport has recently proposed to terminate the Applicant’s employment due to medical incapacity, which is also in dispute. An interim order to prevent termination of the Applicant’s employment pending the resolution of the dispute is sought.

[3] I have determined to dismiss the application for an interim order because to do so would exceed the jurisdiction of the Commission as conferred by the parties to the enterprise agreement and, in any event, I am not persuaded that it is appropriate to exercise the discretion in the circumstances. The reasons for this decision follow.

Procedural context

[4] On 12 March 2020, the parties attempted conciliation before Commissioner Wilson and the Commissioner subsequently issued a Recommendation which the parties agreed to adopt. There was no agreed resolution of the dispute. On 16 March 2020, the Applicant requested referral to another member of the Commission for arbitration of the substantive application and an interim application.

[5] On 19 March 2020, a mention was convened before me and a program was set for the exchange of materials in relation to the interim and substantive applications. An objection to the jurisdiction of the Commission was foreshadowed, which the Department of Transport was directed to address in its materials related to the interim application. Also at the mention, the Department of Transport agreed that it would continue to abide the Recommendation of Commissioner Wilson, that it would not terminate the Applicant’s employment without first giving him not less than two working days’ notice, until the interim application is determined.

[6] The parties filed submissions in relation to the application for an interim order; the Department of Transport also addressed its objection to the jurisdiction of the Commission and filed a witness statement of Mr Prabhu (Workplace Relations Advisor). An extension to the program was granted to afford the Applicant an opportunity to reply to the Department of Transport’s materials prior to the hearing of the interim application. On 3 April 2020, a telephone hearing was convened before me. The Applicant was represented by the Association of Professional Engineers, Scientists and Managers Australia (APESMA) and the Department of Transport was represented by the Victorian Government Solicitor.

The substantive dispute

[7] The substantive application alleges that the Applicant has been unreasonably subjected to a performance improvement process which is not consistent with the processes and obligations in the enterprise agreement(s) and/or a workplace policy.

[8] The Applicant alleges that the formal performance improvement process commenced in January 2019, when he was employed as a Senior Project Delivery Engineer by VicRoads under the VicRoads EA8 Agreement (EA8 Agreement). In April 2019, a formal performance improvement plan (PIP) was placed on the Applicant’s personnel record. The Applicant subsequently claimed that he was undergoing stress as a result of bullying by his team leader which included being subjected to the PIP. The bullying allegations were ultimately investigated by VicRoads and found to be unsubstantiated. It is alleged that the Applicant was stood down on 25 June 2019, on full pay, pending an independent medical examination because VicRoads was concerned about his ability to safely perform his role as a result of his self-reported stress. The Applicant has not returned to work since this time.

[9] On 1 July 2019, the Applicant was transferred to the role of Senior Project Engineer with the Department of Transport. The parties agree that the VPS Agreement covers and applies to the Applicant in this role. Not long after the transfer, the Applicant attended an independent medical examination with Dr Gregory White (Consultant Psychiatrist). As a result of that assessment, in August 2019 the Department of Transport issued a letter to the Applicant asking him to show cause as to why his employment should not be terminated as a result of his inability to perform the inherent requirements of his role. The inherent requirements of his role were said to include participation in the PIP to resolve serious performance concerns, managing a normal workload and understanding work instructions. Since August 2019, there were further assessments of Dr White conducted with reference to the Applicant’s treating general practitioner’s assessments. The Applicant was either stood down on full pay pending those assessments or on annual leave during this time. He alleges that, in December 2019, he was invited to an informal meeting at which he was invited to resign. On 10 March 2020, a second show cause letter was issued by the Department of Transport, which it said was based on the Applicant having continuously stated that he perceived the performance improvement process and management by his team leader to be unfair and unreasonable and that the Department of Transport could not control the Applicant’s perceptions and, as a result, was of the view that the Applicant could not perform the inherent requirements of his role. On 16 March 2020, the Applicant responded to the second show cause letter in which he addresses his concerns about the unfairness and unreasonableness of VicRoads’ performance improvement process.

[10] The Applicant’s representative first notified of a dispute on 16 January 2020, with reference to the dispute resolution procedure at clause 12 of the VPS Agreement. The letter included:

a) APESMA’s concern that the Applicant should not have been placed on a PIP in January 2019 and that the VicRoads underperformance policy had not been complied with in this respect;

b) That there were a range of other disciplinary options (alternatives to termination) available under cl.70.12 of the VicRoads EA8 and cl.20.12(c) of the VPS Agreement; and

c) A request to meet with the Department of Transport to discuss the dispute, and stated APESMA’s expectation that the “status quo” would be maintained with regard to the Applicant’s employment, whilst the matter was being dealt with in accordance with clause 12.5(b) of the VPS Agreement.

[11] The Department of Transport alleges that the first occasion on which the Applicant identified the provisions of the VPS Agreement which he considers have not been followed was in the application form lodged with the Commission on 3 March 2020, and was not clearly articulated until the submissions filed on 25 March 2020.

[12] The Department of Transport’s evidence (of Mr Prabhu), given during the course of these proceedings, is that it “is now in a position and intends to make a determination in relation to the Applicant’s ongoing employment based on his capacity to safely perform the inherent requirements of his role, having regard to all relevant information”.

The Agreement

[13] The original application refers to both the VicRoads EA8 and the VPS Agreement. However the Applicant accepted that the VPS Agreement is the enterprise agreement that presently covers and applies to the Applicant and the Department of Transport.

[14] The provisions of the VPS Agreement identified in the application as related to the dispute are: clause 13 (Workload); clause 20 (Management of Unsatisfactory Performance); and clause 65 (Occupational Health and Safety and Rehabilitation). The dispute resolution procedure is at clause 12 of the VPS Agreement and is extracted in full at Attachment 1 to this decision. Sub-clauses 12.1, 12.2 and 12.3 define the types of disputes that may be dealt with in accordance with the dispute resolution procedure as follows:

“12 Resolution of Disputes

12.1 For the purposes of this clause 12, a dispute includes a grievance.

12.2 Unless otherwise provided for in this Agreement, a dispute about a matter arising under the Agreement or the National Employment Standards set out in the FW Act, other than termination of employment, must be dealt with in accordance with this clause. For the avoidance of doubt, a dispute about termination of employment cannot be dealt with under this clause.

12.3 This clause does not apply to any dispute regarding a matter or matters arising in the course of bargaining in relation to a proposed enterprise agreement.”

[15] The general powers and procedures of the Commission are referenced in clause 12:

“12.12 General Powers and Procedures of the FWC

Subject to any agreement between the parties in relation to a particular dispute and the provisions of this clause, in dealing with a dispute through conciliation or arbitration, the FWC may conduct the matter in accordance with Subdivision B of Division 3 of Part 5-1 of the FW Act.”

Relief sought

[16] The Applicant proposes that the substantive dispute would be resolved if the Commission were to determine, by way of arbitration, six questions which may be summarised as: whether VicRoads’ performance improvement process was compliant with the VicRoads EA8 and the VicRoads managing underperformance policy and whether the Department of Transport has complied with the VPS Agreement in proposing to terminate the Applicant’s employment due to incapacity, and in requiring the Applicant to complete a PIP as an inherent requirement of his role.

[17] In his application, the Applicant seeks the following substantive relief:

a) To return to his role as Senior Projects Engineer with the Department of Transport;

b) That he is not subjected to the PIP; and

c) That he is not required to work under his team leader.

[18] The Applicant also seeks an order, on an interim basis pursuant to ss.739 and 589(2), in the following terms:

“Until determination of the Applicant’s dispute in matter C2020/1273 the Respondent take no further steps to finalise or further progress the termination of Mr Perampalam Arivalagan’s employment with the Department of Transport.”

[19] Some additional wording “for the avoidance of doubt” was incorporated in the Applicant’s draft interim order, which is set out in full at Attachment 2 to this decision.

[20] The Applicant contended that the correct approach for the Commission to follow in considering whether to issue the interim order was to ask whether he had established a prima facie case or a serious question to be tried and, if so, whether the balance of convenience favoured the granting of an order. If both questions were answered in the affirmative, then he said the interim order should be issued. The Applicant did not give evidence, but contended that VicRoads did not comply with its obligations or provide the Applicant with a reasonable opportunity to rectify the alleged unsatisfactory work performance before placing him on a PIP, and that the Department of Transport’s actions in commencing a process to terminate the Applicant’s employment is unwarranted, unfair and relates to performance that occurred with a different employer. He submitted that an interim order of the kind sought was consistent with the “status quo” provision at cl.12.5(b) of the VPS Agreement and the status quo is that the Applicant remains stood down on full pay pending resolution of the dispute. Further, that the balance of convenience rests with the Applicant in the interests of preserving his ability to pursue the relief sought in resolution of the substantive application and because he would suffer immeasurable and permanent damage in terms of his ongoing career, his ability to gain alternative employment at 62 years of age and the financial and personal hardship which could not be put right with an award of damages or compensation after the event if termination were to follow. Whereas the impact on the Department of Transport would be temporary and not irretrievable.

[21] During the hearing, I asked the Applicant’s representative to identify the source of my power to issue an interim order directed at preventing the termination of the Applicant’s employment in circumstances where the dispute resolution procedure in the VPS Agreement does not permit a dispute about termination of employment to be dealt with in accordance with the dispute resolution procedure. The Applicant’s position was that the source of power is s.589(2), a general power which enables the Commission to make interim decisions in relation to any matter before it. It was submitted that this application is a matter pending final resolution, therefore s.589(2) applies and the only questions are whether there is a serious question to be tried and the balance of convenience favours the Applicant.

[22] The Department of Transport submitted that the Commission has no jurisdiction to make the interim order. It contended that the power under s.589(2) is premised on the subject matter being related to the substantive proceedings and being a matter which may be finally determined by and/or have some bearing on the substantive proceedings. It contended that whether the performance improvement process was warranted, fair or appropriate is not a matter which the Commission has jurisdiction to determine because it arose under the VicRoads EA8 which no longer covers or applies to the Applicant’s employment. It said that the dispute is really about the Department of Transport’s “signalled intention to terminate the Applicant’s employment” which is not within the scope of the Commission’s powers as conferred by the dispute resolution procedure at clause 12 of the VPS Agreement, and which it maintains is due to the Applicant’s incapacity. It maintains the proposed termination extends beyond the PIP and also includes a medically certified inability to perform his usual role and/or receive feedback of any kind, given his perceptions that he is being treated unfairly and/or unreasonably. Clause 16.2 of the VPS Agreement permits termination of employment on notice for incapacity, which is completely unrelated to the management of unsatisfactory work performance under clause 20 of the VPS Agreement. Clause 12.2 expressly provides that a dispute about termination of employment cannot be dealt with under this clause and, as a result, the Commission does not have jurisdiction to determine a dispute about termination of employment in the substantive proceedings even if the termination did relate to management of unsatisfactory work performance process which is denied. For these reasons, the questions for arbitration posed by the Applicant are also outside jurisdiction of the Commission. It said this matter is to be distinguished from that in United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board 1because, in that case, the parties had agreed and recorded in the terms of the applicable enterprise agreement that an employee’s employment may not be terminated unless a dispute had been resolved.

[23] The Department of Transport also submitted that the Commission should not exercise its discretion to grant the interim order. It contended that there is no serious question to be tried for reasons which effectively repeat its contentions about jurisdiction and, further, that the status quo provision at clause 12.5(b) of the VPS Agreement should not be interpreted as applicable to this dispute or, in the alternative, the status quo is the show cause process which should continue. Further, the Applicant’s argument about irreparable injury that he would suffer should the interim orders not be made relates solely to harm generally suffered as a result of termination of employment as opposed to any particular prejudice to the Applicant’s position in the substantive proceedings. It was also contended that the Department of Transport would be prejudiced in terms of its costs and its ability to manage its business.

The statutory framework

[24] The Commission’s power to deal with disputes by way of private arbitration is provided for at s.739 of the Act, which applies if “a term” referred to in s.738 requires or allows the Commission to deal with a dispute.

[25] The manner in which the Commission deals with a dispute under s.739 is within its discretion, subject to the scope of the term conferring the dispute resolution power and the limitations at s.739. Relevantly, those limitations include that the Commission must not exercise any powers limited by the dispute resolution term (s.739(3)). Also, under s.739(4), the Commission may arbitrate only in accordance with such a term and, under s.739(5), the Commission must not make a decision that is inconsistent with the Act or a fair work instrument that applies to the parties.

[26] Section 589 lives within Division 3 of Part 5-1 of the Act and deals with the power of the Commission to make procedural and interim decisions. Section 589(1) states that the Commission may make decisions as to how, when and where a matter is to be dealt with. Section 589(2) states that the Commission “may make an interim decision in relation to a matter before it”. An interim decision includes an interim order and may be made insofar as it is capable of application and subject to any contrary indication in the clause itself. 2

[27] The principles relevant to the making of interim orders are well established. 3 In summary, the Commission must determine if there is a serious issue to be tried and where the balance of convenience lies, having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered, and the circumstances of the parties.4 An applicant for interim orders does not need to demonstrate that it is more probable than not they will succeed but rather whether there is a sufficient likelihood of success to justify the preservation of the status quo pending trial. In relation to the balance of convenience, it is relevant to consider whether inconvenience or injury to the applicant from a refusal to issue an interim order outweighs the injury the respondent would suffer if such an order were granted.5

Consideration

[28] When acting as a private arbitrator under an enterprise agreement, the Commission has the power given to it by the parties as a part of their agreement that the Commission may arbitrate. The term, as the source of the power, determines the scope of the power. Under s.739(3) of the Act, the Commission must not exercise any powers in a dispute resolution term in an enterprise agreement that are limited by the term.

[29] On the facts as presented by the Applicant the matter presently before the Commission may be characterised as a dispute relating to both the performance improvement process arising under the VicRoads EA8 and the proposal to terminate the Applicant’s employment arising under the VPS Agreement.

[30] To the extent the dispute relates to the performance improvement process which was commenced in January 2019 under the VicRoads EA8, and the conduct of VicRoads under that VicRoads EA8, the Commission’s jurisdiction is not enlivened because that enterprise agreement no longer applies. 6 Before the Commission both parties have accepted and asked the Commission to proceed on the basis that the VicRoads EA8 no longer applies to the Applicant’s employment. The dispute was not raised until after the VicRoads EA8 ceased to apply. I have not been taken to, and I am not able to identify, any “saving” provision in the VPS Agreement which would allow the Applicant to seek to have a dispute that arose under the VicRoads EA8 resolved under the terms of the VPS Agreement.7 Accordingly, the application of the VicRoads EA8 to the Applicant is effectively “expired” and the Commission’s jurisdiction is not enlivened such that an interim order or indeed any order related to a dispute arising under the terms of the VicRoads EA8 would exceed the scope of the Commission’s power as conferred by s.739 and clause 12 of the VPS Agreement.

[31] The remainder of the dispute relates to conduct or actions arising since the transfer of the Applicant’s employment to the Department of Transport on 1 July 2019. As the Applicant has acknowledged in his materials, any question of performance since the transfer relates to an old employer. On the materials presently before the Commission, the entirety of the conduct since the transfer of employment on 1 July 2019 has been directed at establishing the Applicant’s fitness or capacity to return to work, to perform his job as required. The Applicant’s dispute as articulated at the workplace level, and in submissions made in the interim proceedings, is responsive to the proposal to terminate his employment due to incapacity to perform the inherent requirements of the role. The terms of the interim order sought are solely directed at preventing the Applicant’s dismissal. The terms of the VPS Agreement expressly confine the Commission’s power in dealing with a dispute such that it “cannot” deal with a dispute about termination of employment. 8 The status quo provision at clause 12.5(b) provides that “work must continue in accordance with the usual practice” but only “whilst a dispute is being dealt with in accordance with this clause”. On a proper construction, clause 12.5(b) does not come to the rescue because termination of employment is outside the scope of a dispute that may be dealt with in accordance with clause 12. Further, the Commission’s general power at s.589(2) is expressly confined by the plain words of cl.12.12 which again cedes to the limitations expressed at cl.12.2 and therefore excludes termination of employment from the exercise of the Commission’s powers including under s.589(2).

[32] That the dispute is about matters that are outside the scope of the VPS Agreement lends to a conclusion that there is no dispute before the Commission which it is empowered to deal with under s.739. In that case, the exercise of the general power at s.589(2) (even if not confined by the terms of the VPS Agreement) does not arise. I note that there may also be a question, which was not seriously pressed before me, as to whether the preliminary steps of clause 12 were followed. However, I am mindful that this is an interim application and the arguments are yet to be fully tested in each of these respects. For present purposes, it is sufficient that the terms of the interim order sought are solely directed at preventing the termination of the Applicant’s employment. The Commission can only do what the Act and, in this case, when read with the power conferred by the terms of the dispute resolution procedure of the VPS Agreement, allows. In these particular circumstances, to make an order to prevent the termination of the Applicant’s employment would be beyond the power expressly conferred by the VPS Agreement and inconsistent with the terms of the VPS Agreement.

[33] Even if the jurisdictional impediments I have identified above were absent, I would decline to issue the interim order sought in this case on discretionary grounds. The strength of the Applicant’s case is subject to a number of jurisdictional hurdles. The Act provides a range of remedies to deal with disputes of this kind including court proceedings dealing with alleged breaches of an enterprise agreement (including the previously applicable VicRoads EA8), and unfair dismissal remedies. In dealing with contraventions of the Act, the courts have the power to order reinstatement. 9 In the unfair dismissal jurisdiction, reinstatement is the primary remedy and, if that is not appropriate, orders can be made for compensation. As there are various avenues available to the Applicant, I am not persuaded that irreparable harm would flow or outweigh the irrecoverable cost to the employer such that orders of the kind now sought should be made even if the jurisdiction did so exist. For the reasons set out above, I am satisfied that the balance of convenience would weigh against the grant of the interim order sought.

[34] The application for interim orders is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR718050>

Attachment 1

Attachment 2

 1   [2015] FWC 3263 (on which the Applicant relied and in which interim orders preventing dismissal were made); see also Susan Lloyd v Department of Justice and Community Safety [2019] FWCFB 7804.

 2   John Holland Queensland v CFMEU [2014] FWC 3583 at [24]; and see for example the decision in Telstra Corporation Limited, PR940569 at [31] to [34] which is apposite albeit under the predecessor legislation.

 3   Australian Manufacturing Workers’ Union v WW Wedderburn Pty Ltd[2016] FWC 2260, (2016) 258 IR 12, citing Quinn v Overland [2010] FCA 799.

 4   Bayly [2017] FWC 1886.

 5   Snow [2017] FWC 6910.

 6   CEPU v Jemena Asset Management Pty Ltd [2015] FWC 1189.

 7   B.T.B Pulle v Commonwealth of Australia acting through the Department of Parliamentary Services [2009] FWAFB 901.

 8   Consistent with the interpretation in Susan Lloyd v Department of Justice and Community Safety [2019] FWCFB 7804.

 9   Section 545(2) of the Act.