Ross Giannone v Australian Broadcasting Corporation

[2013] FWC 4394

[2013] FWC 4394

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Ross Giannone
v
Australian Broadcasting Corporation
(C2012/5775)

Broadcasting and recorded entertainment industry
COMMISSIONER ROBERTS	SYDNEY, 9 JULY 2013

Application pursuant to s.739 - dispute resolution - enterprise agreement - review of an appraisal decision.

[1] This decision concerns an application made by Mr Giannone on 25 October 2012, pursuant to s.739 of the Fair Work Act 2009 (the Act) for Fair Work Australia (now the Fair Work Commission) to deal with a dispute between him and the Australian Broadcasting Corporation (the ABC). Mr Giannone is employed pursuant to the terms of the ABC Enterprise Agreement 2010-2013 (the Agreement) and the reference to the Commission arises from the Prevention and Resolution of Disputes procedure set out at clause 61 of the Agreement. Clause 61 sets out a number of steps to be followed when a dispute arises as to matters covered by the Agreement. Relevantly, subclause 61.4 of the Agreement says:

“61.4 Reconsideration and Appeal Against an Appraisal Decision

61.4.1 Notwithstanding employees’ right of appeal under the provisions of this subclause, it is expected that an employee will raise any matter of concern regarding their Job Plan or performance feedback as soon as it arises during the cycle.

61.4.2 If an employee disagrees with their appraisal rating, or an employee in Bands 1- 8 disagrees with the salary outcome of their appraisal or believes both that they have been regularly performing and were required to perform tasks beyond the level specified in their Job Plan, they may, within 14 days of the notification of their rating, refer the matter in writing to the delegate for reconsideration. The employee will state the reasons they consider the rating or Job Plan was unfair or failed to take into account all relevant factors. The delegate will reconsider the matter and advise the employee of their decision (in writing and with reasons) within 7 days of receipt of the request for reconsideration.

61.4.3 An employee who remains dissatisfied may appeal to their director in accordance with the following process:

a. The appeal must be in writing and must be lodged within seven days of the delegate’s reconsideration decision.

b. The appeal will be considered by a panel comprising:

i. a management nominee other than the original assessor;

ii. an ABC employee nominated by the appellant; and

iii. a chairperson mutually agreed between the ABC and the appellant (or their representative), who is from outside the work area and has been trained or is experienced in assessment procedures.

c. The panel will consider relevant material and will seek the views of the affected employee, the employee’s manager, up to two referees nominated by the employee and any other persons associated with the employee’s work. The panel may make its own inquiries and will provide an opportunity for the employee and the manager to address any adverse material.

d. The panel will provide all relevant material, and a recommendation to the director from among the following options:

i. that the original rating and/or salary outcome stands;

ii. that an alternative rating and/or salary outcome be awarded (which may include a variation to the Job Plan where this was the subject of the appeal); or

iii. that the original rating be set aside.

e. The director will advise the employee of his/her decision within one month of the appeal being lodged or as soon as possible thereafter. Where necessary, as a consequence of the decision, the employee’s rating and/or salary will be adjusted accordingly. In the event that the director rejects the panel’s recommendation, the director will furnish the employee and the panel with a clear statement of the reasons for rejection and shall provide a copy of the panel’s recommendation to the employee.

f. An employee may refer the decision of a director made under 61.4.3e to Fair Work Australia for binding recommendation if the employee can establish that the director in making the decision:

i. overlooked or breached a provision of this Agreement, or

ii. allowed extraneous or irrelevant matters to guide his or her decision;

iii. mistook the facts; or

iv. failed to take into account a material consideration.

g. In considering whether a director has made an error in his or her decision in accordance with clause 61.4.3(f), Fair Work Australia may:

i. only have regard to the material that was before the director at the time of making the decision;

ii. make such determination as necessary to correct any established error; and

iii. not substitute its own decision for that of the director.

61.4.4 The provisions of subclause 61.1.6 will apply during the process under this subclause 61.4.”

[2] Subclause 61.1.6 of the Agreement provides:

“61.1.6 While the parties are trying to resolve the dispute using the procedures in this term an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health and safety, in which case the employee must comply with a direction given by the ABC to perform other available work at the same workplace, or at another workplace, unless:

a. the work is not safe; or

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

c. the work is not appropriate for the employee to perform; or d. there are other reasonable grounds for the employee to refuse to comply with the direction.”

[3] The application first came before me on 7 November 2012 by way of a mention and programming hearing. Arising from those proceedings it was agreed that this matter be decided ‘on the papers’ and the necessary directions were issued on 8 November 2012. Both parties complied with directions and the filing and serving of materials was completed on or about 25 March 2013.

[4] Mr Giannone’s application relevantly involves subclauses 61.4.3(f) and (g) of the Agreement.

Background

[5] The factual background to Mr Giannone’s application is that he is currently classified by the ABC as an Ignite Director under the Agreement at Band 7 point 35. He has been classified at that level since 2002. Mr Giannone submitted to the ABC as part of an appraisal process carried out by his manager Mr Brooks in May 2011, covering the periods 2009-2010 and 2010-2011, that his correct classification should be at Band 8. For each of the appraisal periods, Mr Giannone was given an M rating by Mr Brooks, the ‘M’ stands for ‘meets all requirements’ within his current Band 7 classification. In essence, the result of the two appraisals was that Mr Giannone stayed at the salary point he was at when the appraisals were undertaken.

[6] When he received the two appraisals, Mr Giannone disagreed with them and declined to sign the appraisal documents. He argued that he should have been allocated a ‘P’ rating, which stands for ‘promoted to the next band level’. The day after he received his appraisals, Mr Giannone wrote to Mr P Crockford, Manager NSW, ABC Resources to request a reconsideration of the decision to leave him at his current Band 7 position. On 20 July 2011 Mr Crockford wrote to Mr Giannone advising that it was his view that the M rating was appropriate and that he would not recommend any promotion. On 18 August 2011, Mr Giannone wrote to the Director of the Resources Division, Mr Cruttenden, to appeal against his appraisal ratings. An Appeal Panel (the Panel) was then established and later produced a report concluding that Mr Giannone should be paid a market allowance that was equivalent to the salary attaching to a Band 8 role. The Panel did not recommend that Mr Giannone’s position be reclassified to Band 8 and did not make any recommendation to change the M rating previously accorded by Mr Brooks.

[7] Mr Cruttenden considered the Panel’s report but came to the conclusion that Mr Giannone was correctly classified as a Band 7 employee and he was not prepared to support any increase in Mr Giannone’s salary either as a market allowance or as a promotion to the next Band. Mr Giannone was advised in writing of Mr Cruttenden’s decision on 22 May 2012. Mr Giannone then filed this dispute with Fair Work Australia (now the Fair Work Commission).

Relief sought by Mr Giannone

[8] Mr Giannone’s application (Form F10 Application for FWA to Deal with a Dispute in accordance with a Dispute Settlement Procedure) states the relief sought from the Commission as:

“I refer the decision of the director to Fair Work Australia for binding recommendation and establish that the director in rejecting the recommendation of the appeal panel allowed extraneous or irrelevant matters to guide his decision and mistook the facts.

The Appeal panel unanimously agreed that I possess a special multi-skilling role and recommended the payment of a market allowance equivalent to a band 8 pt 35 position.

The director made an error in his decision to reject the recommendation of the Appeal panel.

The director should reverse his decision and endorse the recommendation of the Appeal Panel.”

Mr Giannone’s submissions

[9] In his written submissions, Mr Giannone summarised the background of his application. He went on to say that the decision by Mr Cruttenden to reject the outcome of the Appeal Panel process was flawed. He submitted that the Panel found that he had an unique case justifying a promotion to Band 8 based on complex multi-skilling and the mentoring of new ABC News24 Director/Switcher personnel. He went on to say that Mr Cruttenden’s conclusion that his work as an Ignite Director for the ABC’s Midday Report was Band 7 work was mistaken. Mr Giannone also relied upon his work as a Director of live Rugby Union coverage in 2011 and claimed that such work is normally undertaken by a Director classified at Band 8.

[10] In essence, Mr Giannone argued that the Panel came to the correct conclusion and Mr Cruttenden, in rejecting the Panel’s conclusions, fell into errors of the types contemplated in subclause 61.4.3f of the Agreement. Mr Giannone seeks that I make a binding recommendation that the Director “reverse his decision and endorse the recommendation of the Panel”.

The ABC’s submissions

[11] The ABC in its written submissions, argued that Mr Giannone has not established any matter that was mistaken, extraneous or irrelevant in Mr Cruttenden’s review of the Panel outcome. “In any event, it was open to the Director, Mr Cruttenden to form a view that was different to that held by others about Mr Giannone’s performance and appropriate classification.”

[12] The ABC’s submissions go on to argue that the Panel gave undue weight to the views of Mr Giannone’s two referees, neither of whom supervised him. It further argued that the views of Mr Crockford, Mr Giannone’s Manager at the time of the appeal, were not relied on by the Panel. In consequence the Panel, rather than Mr Cruttenden, took into account extraneous or irrelevant material when forming its final view. The submissions go on to argue further that the Appeal fell into further error by considering duties performed outside of the relevant appraisal periods, such as Mr Giannone’s work on live Rugby Union broadcasts in 2011.

[13] It was further argued by the ABC that it does not dispute the type of work being carried out by Mr Giannone but considers that his duties fall within Band 7 not Band 8. The submissions went on to say that the Panel itself did not decide that Mr Giannone’s role should be reclassified to Band 8. Rather, it decided that an allowance would be appropriate for the alleged multi-skilling performed by Mr Giannone.

Statement of Mr Cruttenden

[14] In addition to the ABC’s written submissions, an unsworn statement was filed from Mr Cruttenden.

[15] Mr Cruttenden stated that he has held the position of Director ABC Resources since March 2006 and prior to that held the position of Head Operations, Production Resources. In his current position he is responsible for some 800 employees. “I am responsible for considering appeals from employees within ABC Resources who are dissatisfied with their manager’s reconsideration of their performance appraisal rating.”

[16] Mr Cruttenden went on to set out the Panel process and outcome. He said that he read and considered the Panel’s report but came to the view that he could not support its recommendation as representing an accurate consideration of the facts in issue. He wrote to the Chairperson of the Panel indicating that he intended to reject the Panel’s report and seeking further comments or feedback in relation to his proposed action. No response was received from the Chairperson.

[17] Mr Cruttenden’s statement goes on to some detail concerning his reasons for not agreeing with the Panel’s recommendation that Mr Giannone should be awarded a market allowance equivalent to a Band 8 position. He said that Mr Giannone’s claim seemed to be more based “on seniority and length of service rather than a proper and meaningful application of the Work Level Standards.”

[18] Mr Cruttenden’s statement goes on to set out, again in some detail, other relevant issues which he took into consideration. I have paid regard to that material.

[19] Mr Cruttenden said: “The grading of employees under the work Level Standards is dependent on both the ABC’s operational requirements and an employee’s skills and experience. It is therefore necessary that an employee have both the skills to work at a higher level and be required by the ABC to perform work at that higher level in order to be advanced to that higher Band. I have been particularly diligent in attempting to ensure that staff within ABC Resources are correctly aligned with the Work Level Standards. To advance Mr Giannone to Band 8, notwithstanding the fact that he neither meets the requirements of Band 8 nor is required to perform work at that level, would be inequitable and not result in a proper and meaningful application of the Work Level Standards. I note that notwithstanding the fact that I did not agree with the Appeal Panel’s report, the Panel themselves did not conclude that Mr Giannone was required to work at the Band 8 level or that he should be promoted to Band 8. Instead they recommended the payment of a market allowance in recognition of multi-skilling.”

Conclusions and Determination

[20] My task in determining Mr Giannone’s application is constrained by the provisions of the Agreement found at clause 61.4.3f and g. The Agreement provisions only empower me to make a ‘binding recommendation’ if Mr Giannone can establish that Mr Cruttenden overlooked or breached a provision of this Agreement or allowed extraneous or irrelevant matters to guide his decision, mistook the facts or failed to take into account a material consideration. Furthermore, I may only have regard to the material that was before him at the time he made his decision and I can only make such determination as is necessary to correct any error which I have found to exist. I may not substitute a decision of my own for that of Mr Cruttenden.

[21] Effectively, the provisions of the Agreement mean that I am unable to grant the relief sought by Mr Giannone by making any binding recommendation that Mr Cruttenden “should reverse his decision and endorse the recommendation of the Appeal Panel”. If I were to determine that Mr Cruttenden had come to his final conclusion by relying on matters which were mistaken as to the facts or erroneous in some material regard then it would only be available to me to make a binding recommendation that Mr Cruttenden review his decision in the light of any errors discovered.

[22] I have paid close regard to all of the materials available to me and in particular, the report of the Panel. The Panel’s report dated 20 March 2012 is a curious document. It is apparent to me that the Panel, in its unanimous decision, paid overwhelming regard to the submissions of Mr Giannone backed up by a two hour interview with him. The report notes that the Panel also spoke with Mr Giannone’s two referees and with Mr Crockford. However, whereas there is extensive regard paid in the report to Mr Giannone’s interview and the views of his referees, there is nothing to indicate that the Panel paid any regard whatever to any views put by Mr Crockford. Such a report would in my view, be unlikely to cause Mr Cruttenden to have any reason to adopt its recommendation(s). In any event, the Panel did not recommend that Mr Giannone be promoted to Band 8 but rather that he be paid an allowance which would give him a salary outcome equivalent to that attaching to Band 8 while he would remain in his substantive Band 7 position.

[23] All in all, I am unable to discern any actions or omissions by Mr Cruttenden of the types set out in subclause 61.4.3f and g. In my view, and I determine, Mr Cruttenden reached a decision which went against the views of Mr Giannone and the Panel based on a full consideration of all factors. Under the Agreement, this was within his power and authority and I find no reason to interfere with the decision of which Mr Giannone complains. It is certainly not my role to substitute my view for that of Mr Cruttenden even if I was to disagree with his conclusion. The terms of the Agreement clearly provide that the Panel was only empowered to make a recommendation to Mr Cruttenden and he was within his powers to decline any such recommendation provided that he did not fall into the type(s) of error canvassed earlier in this decision when he did so.

[24] I therefore determine that Mr Giannone’s application, together with the relief he has sought, must be dismissed and I do so.

COMMISSIONER

Final written submissions:

25 March 2013.

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<Price code C, AE881909  PR538570>