The Association of Professional Engineers, Scientists and Managers, Australia v Ambulance Victoria

[2016] FWC 1544

[2016] FWC 1544

FAIR WORK COMMISSION

DECISION

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

The Association of Professional Engineers, Scientists and Managers, Australia
v
Ambulance Victoria
(C2016/113)

COMMISSIONER WILSON MELBOURNE, 10 MARCH 2016

Application to deal with a dispute - disciplinary proceedings under an enterprise agreement - Application for an interim order. Application refused.

[1] This decision concerns whether or not an interim decision should be made by the Fair Work Commission (the Commission) in the favour of the Applicant, the Association of Professional Engineers, Scientists and Managers, Australia (Professionals Australia) in relation to its member Mr Zlatko Balazic, presently employed by Ambulance Victoria. The effect of the interim decision, if granted, would be to prevent Ambulance Victoria from finalising an investigation into allegations of serious misconduct against Mr Balazic.

[2] The power of the Commission to make an interim decision is set out within s.589 of the Fair Work Act 2009 (the Act), which is in the following terms;

“589 Procedural and interim decisions

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(a) on its own initiative; or

(b) on application.

(4) This section does not limit the FWC’s power to make decisions.”

[3] For the reasons set out in this decision, the application for an interim decision is refused.

[4] The application made by Professionals Australia was first received in the Commission on 21 January 2016 and was made pursuant to s.739 of the Act. The application alleged a dispute arising under the Ambulance Victoria (Management and Administrative Staff) Enterprise Agreement 2014 1 (the Ambulance Victoria Agreement) and set forth certain alleged deficiencies on the part of Ambulance Victoria in investigating Mr Balazic’s conduct. The matter has been the subject of conciliation conferences conducted by the Commission during February 2016 which did not lead to the resolution of the dispute.

[5] The underlying dispute is that Professionals Australia argue that Mr Balazic has not been accorded the investigation process sanctioned within the Ambulance Victoria Agreement.

[6] The dispute comes to the Commission through the combination of the provisions of s.739 of the Act, which enables the Commission to deal with a dispute arising under an enterprise agreement, and the provisions of clause 9 of the Ambulance Victoria Agreement. In broad terms the dispute resolution procedure enables the progression of a dispute or grievance about a matter arising under the agreement or the National Employment Standards and contains the following within clause 9.1;

“9 DISPUTE RESOLUTION PROCEDURE

9.1 Resolution of disputes and grievances

(a) Unless otherwise provided for in this Agreement, a dispute or grievance about a matter arising under this Agreement or the National Employment Standards, other than termination of employment, must be dealt with in accordance with this clause. This includes a dispute or grievance about whether an Employer had reasonable grounds to refuse a request for flexible working conditions or an application to extend unpaid parental leave.

(b) This clause does not apply to any dispute on a matter or matters arising in the course of bargaining in relation to a proposed enterprise agreement.

(c) The Employer or an Employee covered by this Agreement may choose to be represented at any stage by a representative.”

[7] Under the procedures set out within the clause, and the parties having followed a step process it contains, a party may refer an unsettled matter to the Commission for further assistance. In this regard processes of conciliation and arbitration on the part of the Commission are set out within clause 9.7 – 9.9, which contain following provisions;

“9. 7 Conciliation

(a) Where a dispute or grievance is referred for conciliation, a member of FWC may do everything that appears to the member to be right and proper to assist the parties to agree on terms for the settlement of the dispute or grievance.

(b) This may include arranging:

(i) conferences of the parties or their representatives presided over by the member; and

(ii) for the parties or their representatives to confer among themselves at conferences at which the member is not present.

(c) Conciliation before FWC shall be regarded as completed when:

(i) the parties have reached agreement on the settlement of the grievance or dispute; or

(ii) the member of FWC conducting the conciliation has, either of their own motion or after an application by either party, satisfied themselves that there is no likelihood that within a reasonable period further conciliation will result in a settlement; or

(iii) the parties have informed the FWC member that there is no likelihood of agreement on the settlement of the grievance or dispute and the member does not have substantial reason to refuse to regard the conciliation proceedings as completed.

9.8 Arbitration

(a) If the dispute or grievance has not been settled after conciliation, either party may request that FWC proceed to determine the dispute or grievance by arbitration.

(b) Where a member of FWC has exercised conciliation powers in relation to the dispute or grievance, the member shall not exercise, or take part in the exercise of, arbitration powers in relation to the dispute or grievance if a party objects.

(c) Subject to sub-clause 9.8(d) below, the determination of FWC is binding upon the persons bound by this Agreement.

(d) An appeal can be made to a Full Bench of FWC, with the leave of the Full Bench, against a determination of a single member of FWC made pursuant to this clause.

9.9 Conduct of matters before FWC

Subject to any agreement between the parties to the dispute, in relation to a particular dispute or grievance and the provisions of this clause, in dealing with a dispute or grievance through conciliation or arbitration FWC may conduct the matter in accordance with Subdivision B of Division 3 of Part 5-1 of the Fair Work Act 2009.”

[8] Clause 9.7 provides that conciliation by the Commission may be regarded as completed in a situation where there is satisfaction that there is no likelihood that within a reasonable period further conciliation will result in settlement of the matter. I consider such situation to have arisen.

[9] On the one part Ambulance Victoria believe that there is a case for Mr Balazic to answer in respect of his conduct and they have sought his response to certain findings they say are established within the course of the organisation’s investigation into his conduct, and once they have received his response and taken it into account they propose to determine what sanction, if any, should then be applied to Mr Balazic. On the part of Professionals Australia, they and their member, Mr Balazic, resist the progression of the matter in this way, arguing that a failure to accord Mr Balazic the process set out within the Ambulance Victoria Agreement amounts to a failure to apply certain rights to Mr Balazic, for which Ambulance Victoria should be held to account.

[10] Once it was apparent that conciliation was at an end, Professionals Australia made application for the Commission to make an interim decision pursuant to s.595 of the Act preventing Ambulance Victoria from proceeding to determine the disciplinary proceedings against Mr Balazic until such time as the union’s application pursuant to s.739 be heard and determined by the Commission upon its merits. In order to facilitate an orderly hearing of the application for an interim decision, a temporary interim decision on the subject was made by the Commission as presently constituted on 29 February 2016. That decision requires that Ambulance Victoria take no further steps to either terminate Mr Balazic’s employment or to otherwise impose a sanction of any description upon him in respect of the allegations made against him until this decision is issued.

[11] The draft order sought by Professionals Australia is in the following terms;

“A. Pursuant to s.739 and s589 (2) of the Fair Work Act 2009 (Cth) (the Act), it is ordered that:

1. Until determination of the Applicant’s dispute in matter C2016/113 Ambulance Victoria take no further steps to finalise or further progress the investigation into allegations of serious misconduct against Mr Zlatko Balazic.

2. For the avoidance of doubt, the above Order;

a. Is made without prejudice to the rights of any party, either as to the jurisdiction of the Commission to deal with the alleged dispute; or to the determination of the merits of the alleged dispute; or to the commencement or outcome of any other proceeding that is, or may be contemplated, in relation to the matters that are the subject of this alleged dispute.

b. Is made in the expectation that Mr Balazic remain stood-down from his employment, noting that the permissibility of such stand-down is itself one of the matters in dispute between the parties;

c. Extends to there being no steps taken by Ambulance Victoria to either terminate Mr Balazic’s employment or to otherwise impose sanction of any description upon him in respect of the allegations made against him.

B. Liberty to apply generally on these matters is granted.”

[12] In the matter of Communications, Electrical And Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation 2, Vice President Lawler gave consideration to the issue of an interim decision, noting that the Commission has long exercised a jurisdiction to make interim awards or orders to preserve the status quo pending determination of matters before it. He considered that there was power within the then existing legislation to make an interlocutory order restraining the termination of certain remaining employees until the dispute was determined. He characterised such order as being in the nature of an interlocutory injunction.3 In doing so, it was noted that in the exercise of a particular power, it is always necessary for a proper case to have been made out for the exercise of that power, and that the Commission ought apply standard tests before deciding in favour of the application;

“[88] However, given that the order sought is in the nature of an interlocutory injunction, there is no reason not to require a party applying for such an order to establish the matters that a Court would require a party to establish before granting an interlocutory injunction. Those principles were summarised by Mason ACJ in Castlemaine Tooheys Ltd v South Australia:

In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.” 4 (reference omitted)

[13] The parties in this matter accept the proposition that the three elements referred to above are the tests to be applied in deciding the application before me. 5

[14] While such acceptance of the tests to be applied is made by Ambulance Victoria, it raises two preliminary objections of a jurisdictional nature as well, which if correct would mean that Professionals Australia’s application is not properly before the Commission and thereby incapable of being determined. The jurisdictional objections raised by Ambulance Victoria are;

• Firstly that the steps in the dispute resolution procedure have not been followed; and



• Secondly that the alleged dispute is not one arising out of the Ambulance Victoria Agreement. 6

[15] Before considering either whether there is jurisdiction for the matter to proceed or whether, if there is, an interim decision should be granted by the Commission, it is appropriate to consider the matters that are the subject of enquiry by Ambulance Victoria in relation to Mr Balazic’s conduct.

[16] Mr Balazic was first employed by Rural Ambulance Victoria in July 2002. That organisation merged in 2008 with its metropolitan based counterpart to become Ambulance Victoria. His employment with Ambulance Victoria is within Ambulance Victoria’s information technology department and he works at Wendouree, a suburb of Ballarat. He has two team leaders reporting to him, and there are, through those people, a total of 14 within his report.

[17] During May and June 2015 Mr Balazic submits that he was asked to dispose of some videoconferencing equipment that was no longer used. 7

[18] The investigation being conducted by Ambulance Victoria goes to whether Mr Balazic acted upon that request, which is characterised by the organisation as a “lawful direction” and whether at any stage he misled Ambulance Victoria when they asked him whether he had complied with the request or direction. Without resolving the question at this time about the status of what he was asked to do, I shall refer to it as a “direction”.

[19] Ambulance Victoria came to investigate this matter following a report from Victoria Police towards the end of November 2015 in which the police advised they had received information alleging Mr Balazic “was stealing equipment from AV”. 8 Until that point, it appears that Ambulance Victoria had no reason to question whether the earlier direction to Mr Balazichad been acted upon.

[20] Following the matter being reported to Ambulance Victoria by Victoria Police, Hayden Peucker, the Acting Chief Information Officer, and Errin Magee, HR Partner, met with Mr Balazic and Mr Balazic was informed that an investigation would be conducted in accordance with the organisation’s internal investigations policy and that he would be stood down on full pay while the investigation was conducted. 9 Ambulance Victoria’s evidence is that on 7 December 2015 the police returned certain equipment to Ambulance Victoria recovered from Mr Balazic’s home.10

[21] On 10 December 2015 a letter of allegations of serious misconduct was put to Mr Balazic requiring him to respond to four substantial allegations. The first was that he had “misappropriated” 8 classes of equipment; the second was that he had not disposed of 5 classes of equipment in accordance with Ambulance Victoria’s policies and procedures; the third was that he had failed to follow a lawful management direction; and the fourth is that he was deceptive and misleading in the course of his employment. 11

[22] Certain responses to the allegations were provided by Mr Balazic both in written and oral form. He provided a written statement to Ambulance Victoria on 17 December 2015 12 and he met with representatives of Ambulance Victoria for the purposes of the investigation on 18 December 2016.13 Following these steps, Ambulance Victoria formed its views about the allegations it had put to Mr Balazic and communicated its findings to him in two letters, both dated 18 January 2016. The first is a cover letter communicating a need to attend a meeting with Ambulance Victoria and the second sets out certain findings about Mr Balazic’s conduct. The letter advised him of the following findings;14

• The allegation that he had misappropriated certain equipment was partially substantiated, with the investigators finding that these aspects of the claims were substantiated;

“a) Misappropriated two Panasonic Plasma televisions on mobile stands
b) Misappropriated two solar panels
c) Misappropriated video Polycom video conferencing equipment including camera, control box, speakers and various cables.”

• The allegation that he had not disposed of equipment in accordance with Ambulance Victoria’s policies and procedures was partially substantiated, with the investigators finding that these aspects of the claims were substantiated;

“a) Failed to dispose of two Panasonic Plasma televisions on mobile stands
…
c) Failed to dispose of video Polycom video conferencing equipment including camera, control box, speakers and various cables.”

• The allegation that he had failed to follow a lawful management direction was found by the investigators to be substantiated, with the particulars of that allegation being;

“a) That on or around the 8 June 2015 you received a written management direction from your General Manager, Acting/ Chief Information Officer Hayden Peucker in relation to Asset Disposal and did not comply.”

• The allegation that he was deceptive and misleading in the course of his employment was found by the investigators to be substantiated, with the particulars of that allegation being;

“a) That on 9 June 2015, you provided an untruthful account, and knowingly mislead Hayden Peucker, Acting Chief Information Officer about the disposal of video Polycom video conferencing equipment including camera, control box, speakers, various cables and two Panasonic Plasma televisions on mobile stands.
b) That on 9 June 2015, you knowingly concealed that you were still in possession of video Polycom video conferencing equipment including camera, control box, speakers, various cables and two Panasonic Plasma televisions on mobile stands.”

[23] The same correspondence indicated to Mr Balazic the following about Ambulance Victoria’s views on the findings;

“The incidents listed above which have been found to have occurred as alleged, have resulted in the overall allegation of behaviour constituting serious misconduct being substantiated.

Hayden Peucker, A/Chief Information Officer, will be in contact with you to notify you of your required attendance at a counselling and disciplinary meeting. The purpose of this meeting will be to provide you with an opportunity to explain any mitigating circumstances for your behaviour.

You should be aware that the allegations which have been substantiated are considered to be very serious, and may result in disciplinary action up to and including termination of employment, in accordance with the AV Counselling and Disciplinary Procedure.” 15

[24] The meeting with Mr Balazic as “an opportunity to explain any mitigating circumstances” for his behaviour has not yet occurred, for the reason that the Professionals Australia application was filed on 21 January 2016, shortly after the meeting on which the results of the investigation were communicated to Mr Balazic.

[25] Mr Balazic’s response to the allegations include several defences set out within a comprehensive response he provided to Ambulance Victoria on 17 December 2015. His responses include the following; 16

• Agreement that he and another employee were given verbal instructions to “get rid” of certain out of date equipment;



• The usual procedure for disposing of decommissioned IT equipment was to throw it into a skip at his workplace;



• In June 2015, two skips, including one for electronic waste, had been taken away;



• He concedes that in June he took certain equipment to his home but for the purposes of disposing of it through a skip he intended to obtain. He had been undertaking a building project at his home for some time and needed a skip to take construction refuse away;



• When he was asked by his manager about the where the equipment was, for the reason that the manager had had a report of someone taking screens out of the Ambulance Victoria premises, he agreed he and his daughter had taken the equipment away, saying he intended to dispose of the equipment through his home skip;



• Problems associated with his building project meant that he could not afford to spend money on having the equipment taken away from his house and the equipment remained there until December 2015;



• In relation to certain items of equipment, potentially larger or seemingly of more value, he did not take those to his house to use himself or keep them for any purpose other than to dispose of it.

[26] Mr Balazic also denies giving misleading answers to his managers about what he had done with the equipment. While this is the case, his written responses from June 2015 provide an impression to Ambulance Victoria that he was following through on their policies and disposing of the equipment properly. At the same time events appear to have taken over what he had done or hoped to do, because of the circumstance described above in which he could no longer afford a skip to remove equipment from his property.

[27] As indicated above, Ambulance Victoria raised two jurisdictional objections against the continuation of this matter, with the first of those being that Mr Balazic has inadequately complied with the stepped procedure within the dispute resolution procedure in order to permit an alleged dispute be notified to the Fair Work Commission. Such argument is grounded upon the provisions of clauses 9.4 and 9.5 of the Ambulance Victoria Agreement which sets out following;

“9.4 Discussion of grievance or dispute

(a) The dispute or grievance must first be discussed by the aggrieved Employee(s) with the immediate supervisor of the Employee(s).

(b) If the matter is not settled, the Employee(s) can require that the matter be discussed with another representative of the Employer appointed for the purposes of this procedure.

9.5 Internal process

(a) If any party to the dispute or grievance, who is covered by this Agreement, refers the dispute or grievance to an established internal dispute or grievance resolution process, the matter must first be dealt with according to that process, provided that the process is conducted in a timely manner and is consistent with the following principles:

(i) the rules of natural justice;

(ii) provide for mediation or conciliation of the grievance;

(iii) provide that the Employers will take into consideration any views on who should conduct the review; and

(iv) be conducted as quickly and with as little formality as a proper consideration of the matter allows.

(b) If the dispute or grievance is not settled through an internal dispute or grievance resolution process, the matter can be dealt with according to the processes set out below.

(c) If the matter is not settled either Party may refer the matter to FWC.”

[28] The second of Ambulance Victoria’s jurisdictional arguments is that this is not a dispute or grievance about a matter arising under this Agreement or the National Employment Standards. In substance, this is an attack on the submissions of Professionals Australia that Ambulance Victoria has breached the requirements of clause 10 of the agreement, and in particular clause 10.2 and 10.5. The whole of clause 10 provides the following;

“10 DISCIPLINARY PROCEDURE

10.1 Where disciplinary action is necessary; the management representative shall notify the Employee of the reason(s). The first warning shall be verbal and shall be recorded on the Employee's personnel file. The Employee's chosen representative shall be present, if desired by either party.

10.2 Where further disciplinary action is necessary, the matter will be discussed with the Employee and a second warning in writing will be given to the Employee and recorded on the Employee's personnel file. The Employee's chosen representative shall be present, if desired by either party.

10.3 Where further disciplinary action is necessary, the matter will be discussed with the Employee and a final warning in writing will be given to the Employee and recorded on the Employee's personnel file. The Employee's chosen representative shall be present, if desired by either party.

10.4 Where further disciplinary action is necessary, then the Employee's employment may be terminated. No dismissals are to take place without the authority of the relevant General Manager.

10.5 Where it is determined that disciplinary action is necessary, and the issue is serious enough that a first verbal warning is inappropriate, yet does not warrant summary dismissal, the Employee may be given a first and final warning. The first and final warning shall be given in writing and shall be recorded on the Employee's personnel file. The Employee's chosen representative shall be present, if desired by either party.

10.6 Summary dismissal of an Employee's employment may still occur for acts of serious misconduct.

10.7 If, after any warning, a period of 12 months elapses without any further disciplinary action being required, all adverse reports relating to the warning(s) must be removed from the Employee's personnel file.”

[29] Professionals Australia argue that the clause sets out a series of cascading subclauses “which dictate the procedure that must be provided to an affected employee dependent upon the seriousness of the employee’s conduct” 17 and that any reasonable person who became apprised of the facts of Mr Balazic’s circumstance “should have provided Mr Balazic with a disciplinary process commensurate with the seriousness of his conduct as dictated by the agreement is (sic) subclauses 10.2 and 10.5”.18

[30] Against this, and pertinent to the question of jurisdiction, Ambulance Victoria argue that;

“30. The Respondent disputes the characterization at clause 11 of the Applicant’s submissions. What Clause 10 of the Agreement does is set out at clause 10.1 to 10.4 the sequence of warnings which must be issued before termination of employment may be effected in circumstances where a matter is not serious enough to justify a first and final warning as provided for at clause 10.5 or summary dismissal which is permissible (sic) by 10.6.” 19

[31] Further, it is argued on behalf of Ambulance Victoria that the clause is not to be construed as to give power to the Commission to “take over” investigations such as this. 20

[32] In relation to the questions of jurisdiction advanced by Ambulance Victoria, there is insufficient material before the Commission for me to determine at this time either that the requirements of the dispute resolution procedure have been complied with or that the disciplinary procedure is to be interpreted in the manner advanced by Ambulance Victoria.

[33] The first question, of whether the dispute resolution procedure has been complied with, is partly a matter of evidence of what was said to whom on what occasions and in what order, and I note that evidence of a sufficient standard is not presently before me on that point. While Ambulance Victoria invites me to find that Mr Balazic or Professionals Australia have not advanced their concerns as an internal grievance, and it appears at least that such may be the case, I would need direct evidence on the subject, and such is not before me. This first question of jurisdiction is also partly a matter that turns upon the proper construction of the dispute resolution procedure in clause 9. The principles in respect of construction of enterprise agreements are well settled, 21 and there is insufficient material before me on those matters of which I would need to take account in order to be confident of the construction of the clause.

[34] The second jurisdictional matter relates to the proper construction of the disciplinary procedure. In this particular matter resolution of the question advanced by Ambulance Victoria is more a matter of the construction of the clause than it is a matter of evidence. Again I am not presently in a position to determine the proper construction of the clause.

[35] In advancing these observations, I do not definitively determine either point put forward by Ambulance Victoria. The submissions may well be correct, however there is simply insufficient material before the Commission for these matters be determined at this time. Further, for the reasons set out below, is not necessary to determine either matter at this time.

[36] I turn to the tests that are required be considered before the making of an interim decision of the nature sought by Professionals Australia.

Serious question to be tried

[37] The approach endorsed by the Commission in CEPU v Telstra, referred to above, adopts the formula set out within Castlemaine Tooheys v South Australia to the effect that “there is a serious question to be tried or that the plaintiff has made a prima facie case, in the sense that if the evidence remains as it is there is a probability at the trial of the action the plaintiff will be held entitled to relief”. 22

[38] In this matter, the question advanced by Professionals Australia is to the effect that upon hearing the totality of the evidence, of necessity relevant to the question of whether or not Ambulance Victoria has properly applied the provisions of its enterprise agreement, the Commission would be persuaded that the rights of Mr Balazic have not been honoured. As set out within its submissions, Professionals Australia argue essentially that Ambulance Victoria has not followed the provisions of either or both of clause 10.2 and clause 10.5. Clause 10.2 requires a disciplinary matter to be discussed with an employee and a second warning in writing to be given to them. Clause 10.5 provides that an employee might be given a first and final warning where the issue is serious enough that the first verbal warning is inappropriate and may not warrant summary dismissal.

[39] Application of the clause in the manner favourable to Professionals Australia argument requires a finding by the Commission of a construction of the clause in the manner that they advance and which Ambulance Victoria contests, as well as a finding by the Commission that, objectively, the circumstances of the allegations against Mr Balazic and his responses are such that a particular result must follow. Professionals Australia argue that “any reasonable person who became apprised of the actual nature of the 'conduct' in which Mr Balazic had engaged, should have provided Mr Balazic with a disciplinary process commensurate with the seriousness of his conduct as dictated by the Agreement is subclauses 10.2 and 10.5”. 23

[40] I understand Ambulance Victoria to argue that this is a complaint about the unfairness of where Mr Balazic finds himself, rather than about whether the requirements of the Ambulance Victoria Agreement have been complied with.

[41] Irrespective, the construction of the clause in the manner favoured by Professionals Australia requires a finding that the clause applies to Mr Balazic’s circumstances, and that it requires application in a manner that does not allow progression from a particular stage until that stage has been completed. Against that proposition is the one advanced by Ambulance Victoria that the terms of clause 10 are a suite of outcomes to be applied in particular circumstances. I understand this to mean, for example, that if a matter warrants a verbal warning, then the term of clause 10.1 might apply; and if a matter warrants summary dismissal, then the term of clause 10.6 might apply.

[42] At this stage of the proceeding, while I do not need to determine the proper construction of the clause, I am required to form a view about whether the case advanced by Professionals Australia amounts to a prima facie case.

[43] At this stage of the matter, and without making any determination upon the evidence, it would appear that the construction advanced by Professionals Australia may well not be open to them. If I understand the Professionals Australia argument about the clause correctly, it advances the view that disciplinary action in all cases requires working through a series of escalating procedures even in the most serious case. The proposition advanced by Professionals Australia would call into question what could be done by the Respondent even about situations of the most serious misconduct. Adoption of the view put forward by Professionals Australia that the procedure must be provided “whether the relevant conduct is the first, second, third or fourth instance of such conduct or whether the conduct is serious enough to warrant a final warning” 24 likely stretches the clause beyond a point that it was intended or that it means upon its plain and ordinary meaning. Perhaps that interpretation is available upon the proper construction of the clause, established in accordance with the principles within AMIEU v Golden Cockerel25, however it appears unlikely.

[44] I turn to consider the extent to which Mr Balazic might have a prima facie case, on the evidence pertaining to him, if the construction of the clause favoured by Professionals Australia were to be established.

[45] The evidence presently before the Commission would indicate some degree of commonality on the essential facts of what equipment was taken from the premises and when. Beyond the proper construction of the clause, the dispute between the parties extends to the motives that should be ascribed to what happened. Did Mr Balazic act upon an instruction given to him? Did he mislead his supervisor Mr Peucker with his responses in June? Did he ever intend to dispose of the equipment once it was at his home?

[46] In relation to Mr Balazic’s conduct, I consider that he has similar difficulties in terms of the progression of the evidence. As referred to above, the question to be posed in relation to the application for any decision is whether “if the evidence remains as it is there is a probability at the trial of the action the plaintiff will be held entitled to relief”. At this stage of the evidence, the case put forward by Mr Balazic is essentially that his motives were well-intentioned but misunderstood, whereas the evidence put forward on behalf of Ambulance Victoria puts forward essentially the case that he removed the equipment knowing that it was wrong to do so; that he thought the equipment may well be of benefit to him; that he did not want to be honest with his manager when he was asked about the location of the equipment; and that he did not follow through with the commitments he made to his manager. Without in any way determining these matters of important evidence, it appears more likely that the weight of evidence will be against Mr Balazic and that it will be unlikely that Mr Balazic’s case will get better as the matter progresses.

Suffer irreparable injury

[47] The question of whether or not Mr Balazic may suffer irreparable injury if the investigation into his conduct proceeds relates ultimately to whether the rights and obligations that each party holds under the Ambulance Victoria Agreement have been afforded to them. In Mr Balazic’s case the asserted right is that the investigation into his conduct should have been conducted in a particular way, progressing through particular stages before moving to the point of findings and the potential for sanction.

[48] Ultimately, if that is the case, Mr Balazic may have the right of redress in other forums, including this Commission through an unfair dismissal action, or potentially through a court for contravention of the Agreement.

[49] Plainly in the circumstance in which Mr Balazic finds himself, the potential for injury to him is real and significant. Findings of serious misconduct have been made and a consequence of such may well be dismissal.

[50] Redress through any mechanism would likely take many months; would be challenging for him both evidentially and in respect of his health and finances; and a remedy in the event of findings in his favour would likely be incomplete, especially in the event that reinstatement was not ordered.

Balance of convenience

[51] The question of the balance of convenience in relation to this matter goes to two matters, one each from the respective parties.

[52] In relation to Mr Balazic, the potential for irreparable injury to him to be avoided through the issue of an interim decision is high. At this stage of the proceeding, it appears likely that Ambulance Victoria is considering a serious sanction against Mr Balazic which may well include dismissal. An interim decision would prevent the implementation of such sanction, at least until the point that the alleged dispute had been heard and determined to finality.

[53] On the other hand, from the perspective of Ambulance Victoria there is a balance of convenience question in its favour, which is for the early conclusion of proceedings such as this which calls into question the propriety of conduct of a public employee. It would be inimical to the interests of an organisation such as Ambulance Victoria for it not to be able to progress the investigation and potential sanctioning of public employees who may have contravened standards of acceptable behaviour.

[54] Ambulance Victoria argue, with some force, that a consequence of the issue of an interim decision in Mr Balazic’s favour would be that its disciplinary procedures, under this Agreement at least, would become open to routine challenge. Against that proposition is that the issue of an interim decision would be subject to determination of the proper construction of the Ambulance Victoria Agreement at a full hearing.

[55] Having considered all of the matters before me, and principally for reason of the views set out previously regarding the question of whether there is a serious matter to be determined as well as questions of the direction in which the balance of convenience lies, I am not persuaded it is appropriate in the circumstance for the Commission to make an order pursuant to s.589 of the Act.

[56] Having refused the application for an interim decision, the matter now may progress to a full hearing of the Professionals Australia originating application, made pursuant to s.739 of the Act.

[57] At that hearing, the issues canvassed in this matter would be heard in detail and determined to finality.

[58] One of the live issues in such a hearing would be the contention by Mr Balazic that the construction of the Ambulance Victoria Agreement favoured by Professionals Australia meant that he had not been afforded procedural fairness in the Ambulance Victoria investigation, either to date, or into the future as it progresses.

[59] Notwithstanding the matters to which I have referred above regarding the potential for the construction of the Agreement, there is sufficient material before me to express the view that it appears unlikely a finding would be made upon a full hearing of the application that Ambulance Victoria had not acted to date in its investigation into Mr Balazic’s conduct in a way that did not accord him with procedural fairness.

[60] However, a matter that Ambulance Victoria may care to be alive to as it moves to conclude its investigation and possibly impose a sanction against Mr Balazic is the argument he advances about the involvement of Mr Peucker in those stages.

[61] My understanding of the forward process is that one of the two proposed decision-makers for the purposes of imposition of a potential sanction, if such does not involve dismissal is Mr Peucker, who is presently within Mr Balazic’s direct management chain and has already been involved in the investigation itself. If the proposed sanction does not involve Mr Balazic’s dismissal I understand the sanction would be determined directly by Mr Peucker and another manager. However, if the proposed sanction is dismissal, then I understand that Mr Peucker and his colleague recommend the matter to the Ambulance Victoria Chief Executive Officer.

[62] Mr Balazic’s representative has made the point that Mr Peucker is involved in several ways in the facts of the circumstance about which a sanctions decision must be made. His is the direction that Ambulance Victoria say that Mr Balazic contravened, and it is he who Mr Balazic has been found by the investigation to have misled with his responses. 26 Mr Balazic also quotes Mr Peucker’s statements to him, and his in return, in his defence of his actions.27

[63] This concern on the part of Mr Balazic is one that may well be a significant factor in any future proceedings on these matters, whether in the Commission or elsewhere. The Ambulance Victoria representatives are requested to draw this likelihood to the attention of their Chief Executive Officer.

[64] As a result of the foregoing, the interim decision made by the Commission on 29 February 2016 requiring that Ambulance Victoria take no further steps to either terminate Mr Balazic’s employment or to otherwise impose a sanction of any description upon him in respect of the allegations made against him is now at an end. An order to that effect will be issued by the Commission at the same time as this decision.

[65] Should the Applicant, Professionals Australia, wish to proceed to have the substantive aspects of its application made pursuant to s.739 heard, together with the expectation that the jurisdictional objections raised by Ambulance Victoria will also be determined, it is to make that request to my Chambers within seven days of the date of this decision. Failing such request, Professionals Australia should file a Notice of Discontinuance.

COMMISSIONER

Appearances:

Ms M Anthony for Professionals Australia

Mr C Broadbent (Marsh & Maher lawyers) for Ambulance Victoria

Hearing details:

2016.

Melbourne:

9 March.

 1   AE411685.

 2   PR933892.

 3 Ibid [85].

 4   Ibid [88]; with reference to Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153, per Mason ACJ.

 5   See Exhibit A1, Applicant’s Outline of Submissions, [7]; Exhibit R3, Respondent’s Outline of Submissions, [42].

 6 Exhibit R2, Respondent’s Outline of Submissions – jurisdiction, [5]-[6].

 7   Exhibit A4, Witness Statement of Zlatko Balazic, [3].

 8   Exhibit R1, Witness Statement of Errin Magee, [3].

 9 Ibid [7].

 10   Ibid [8]-[9].

 11   Exhibit A4 Attachment ZB-5.

 12   Exhibit R1 Attachment EM-5.

 13 Ibid [13].

 14   Ibid Attachment EM-6.

 15   Ibid.

 16   Exhibit A4 Attachment ZB-6.

 17 Exhibit A1 [11].

 18 Ibid [13].

 19 Exhibit R3 [30].

 20 Ibid [36].

 21   See Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited[2014] FWCFB 7447, at [41].

 22 (1986) 161 CLR 148, 153, per Mason ACJ.

 23 Exhibit A1 [13].

 24 Ibid [11].

 25   [2014] FWCFB 7447.

 26   Exhibit R1 Attachment EM-6.

 27   Exhibit A4 Attachment ZB-6.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR577876>