The Civil Air Operations Officers' Association of Australia v Airservices Australia

[2021] FWC 6661

[2021] FWC 6661

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Civil Air Operations Officers’ Association of Australia
v
Airservices Australia
(C2021/3796)

DEPUTY PRESIDENT DEAN CANBERRA, 23 DECEMBER 2021

Application to deal with a dispute – application of enterprise agreement.

[1] On 5 July 2021, the Civil Air Operations Officers’ Association of Australia (CAOOAA) filed an application pursuant to s.739 of the Fair Work Act 2009 to deal with a dispute with Airservices Australia (Airservices) in accordance with clause 10 (Dispute Avoidance and Settlement Process) of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2020 - 2023 (the Agreement).

[2] The application involves a dispute about clause 50 (Performance, Conduct, Termination of Employment) of the Agreement.

[3] The questions for arbitration were as follows:

1. Consistent with clause 50 of the Agreement, where the Respondent either did investigate or decided not to investigate a complaint made against the Relevant Employee in 2017, can the Respondent now investigate the same allegations made by the Complainant against the Relevant Employee?; and

2. If the answer to Question 1 is yes, in the circumstances is the Respondent able to investigate pursuant to clause 50 of the Agreement the subject matter of the Complaint in that out of hours conduct is not a matter properly the subject of the management of an employee within the meaning of clause 50 of the Agreement?

[4] By consent, a confidentiality order was made to prevent the publication of the names of the two employees to whom the matter relates. In this decision, the employee who made the complaint is referred to as the Complainant, and the person complained about is referred to as the Relevant Employee. These references have also been used in substitution for their names in correspondence which is quoted later in this decision.

Background

First Complaint 2017

[5] In September 2017, the Relevant Employee was notified of a complaint against him for allegedly touching the breast of a colleague in a rideshare following a gathering which involved heavy consumption of alcohol (the First Complaint).

[6] On 4 September 2017, before the First complaint had actually been made and at the Relevant Employee’s request, he and his father attended a meeting with his Unit Tower Supervisor, Chris Murray. The Relevant Employee explained to Mr Murray that he attended a private function which was independent of Airservices, where the Complainant had made allegations of him touching her breast whilst in the rideshare vehicle.

[7] On 6 September 2017, Mr Bruce Dowdall, a senior manager, contacted the Relevant Employee advising that a formal complaint had been made against him for “inappropriate touching” and that the complaint was being assessed under the Code of Conduct.

[8] On 8 September 2017, Mr Dowdall allegedly contacted the Relevant Employee again and advised that Airservices had completed the Code of Conduct Initial Assessment and there:

•  were no grounds for formal investigation;

•  would be no ongoing investigation;

•  would be no impact on the Relevant Employee’s future career; and

•  a record of the decision would be kept on the Relevant Employee’s personal file.

[9] In December 2017 the Complainant was located to a tower as an air traffic controller. In that role she was not required to have contact with the Relevant Employee.

Second Complaint 2020

[10] In around March 2020, the Complainant obtained the position of National Check and Standardisation Supervisor (NCSS). Her role involved, among other things, oversight and compliance responsibilities in relation to air traffic control towers in regional Australia, including the Tower where the Relevant Employee was located. The consequence of the Complainant’s NCSS role was that the Complainant may have needed to have contact with the Relevant Employee.

[11] On 18 November 2020, the Complainant made another complaint to Airservices about the Relevant Employee (the Second Complaint). The Second Complaint involved the same events as the First Complaint made well over three years earlier. Airservices said the complaint was triggered and contextualised by the circumstance that in the Complainant’s role as NCSS for regional towers, she may be required to have contact with the Relevant Employee after he moved to his current location.

[12] The Second Complaint was the subject of an initial assessment by Kristina Chapman, Manager of Airservices’ recently formed Safe Place Team. This initial assessment was conducted pursuant to an amended version of the Code of Conduct Investigation Procedure, which differed in several ways from the Code of Conduct Investigation Procedure in place at the time of the First Complaint.

[13] At the time of the hearing, the investigation has not been completed and remains in progress. The Relevant Employee has not yet been interviewed or otherwise responded in substance to the Second Complaint.

Correspondence relating to the Second Complaint

[14] On 27 April 2021, the Relevant Employee was provided with a letter dated 23 April 2021 putting him on notice of a further Code of Conduct investigation in relation to the same 2017 complaint. The letter provided:

“Dear Relevant Employee

Re : Notice of Investigation into allegations of suspected breach of the Code of Conduct.

I’m writing to advise you that Safe Place has received allegations of misconduct against you. Safe Place has conducted an initial assessment and has determined that the allegations should proceed to formal investigation to determine whether your behaviour amounts to a breach of the Airservices Australia Code of Conduct (the Code).

Allegations

It is alleged that:

1. On the 2nd of September 2017 you touched the breast of the Complainant on three occasions without her consent.

If during the investigation, other information comes to light to indicate that the allegations need to be amended or added to, you will be provided with any amendments to the allegations in writing and will have further opportunity to respond to them.

Parts of the Code

The concerns raised are serious and, if proven, would breach the Code. In particular: HR-POL- 0016 Version 6 Code of Conduct Policy (effective since 22nd February 2015) which requires that in connection with your employment or engagement with Airservices you must:

•  Treat everyone with dignity, respect and courtesy.

•  Behave in a way that upholds Airservices’ vision, mission and values, and promotes the good reputation of Airservices

Breach Decision Maker

Safe Place has considered the allegations and determined the matter warrants formal investigation. I have appointed Safe Place Investigator, Virginia Reilly as the Breach Decision Maker to conduct the investigation and determine on the balance of probabilities, whether you have breached the Code. Your cooperation with the investigation is appreciated. Ms Reilly will be in contact with you in the near future to arrange a time for your interview. This will be your opportunity to provide a response to the allegations and any other information you believe is relevant. You may also provide a written response to the allegations if you choose.

Support Person

I understand this process may be stressful for you. You are entitled to bring a support person to your interview and any other meeting related to this process. The support person you choose should have had no involvement with any of the matters that are subject of the investigation. A support person is not a representative within the meaning of the employee representative clauses of an Enterprise Agreement. The role of the support person is to confer with you and raise process issues with you where necessary. The support person’s role is not to advocate or answer questions for you.

Possible Sanctions

Should you be found to have breached the Code, one or more of the following sanctions may be imposed:

•  remedial training/formal counselling; written warning;

•  conditions which the worker must comply with;

•  reduction in worker classification for a period of time or indefinitely; termination of employment (with or without notice); or

•  such other steps or actions appropriate to the circumstances of the case.

Confidentiality

It is important that total confidentiality be maintained throughout this process and you are reminded of your obligation to maintain confidentiality of all matters pertaining to this investigation. Employees (unless it is your support person) are not to be approached by you about this investigation or any of the aspects of the allegations that are covered in this letter. To do so without authorisation could, in itself, be a breach of the Code of Conduct Policy. I expect that you will be professional and courteous to all employees including those party to this investigation.

Safe Place Support Advisor

Safe Place has professionally trained Support Advisors available to provide you with support and advice regarding this process. Susan Penn-Turrall has been allocated as your Support Advisor [redacted].

Additional Support

I understand that, at this time, you may require some additional support and would remind you of your ability to access free confidential counselling through the Employee Assistance Program, on [redacted]. If there is additional support that we are able to provide, we welcome any suggestions for consideration.

If you have any questions in relation to this process, the contents of this letter or the details of the alleged breaches please contact me at any time via email: [redacted]

Yours Sincerely

Kristina Chapman
Safe Place Manager”

[15] On 30 April 2021, the CAOOAA sent an email to the investigator, which provided:

“Dear Virginia,

We refer to the above code of conduct and advise we represent the Relevant Employee.

We note that you are the appointed investigator and are organising an interview with the Relevant Employee to discuss the allegations made against him.

We understand that Airservices investigated and concluded the same allegations in 2017. The conclusion of the investigation in 2017 was a decision not formally investigate, to close the investigation and that the allegations would not have any impact on the Relevant Employee’s career going forward.

The new decision to further investigate raises obvious concerns under clause 50 of the Airservices Australia (Air Traffic Control and Supporting Services) Enterprise Agreement 2020-2023 and the general principles of procedural fairness.

In order for us to advise the Relevant Employee and in order for the Relevant Employee to respond properly to the allegations, it is imperative our member is provided with the entirety of the complaint history, including all historical and new information. We do not anticipate that there should be any issues with this request.

Once we have the requested information we will then be in a position to provide advice to the Relevant Employee and confirm an interview with you.

We look forward to your response.

Joel Winters
Civil Air Legal Officer”

[16] On 4 May 2021, the investigator replied to the CAOOAA’s email. This stated:

“Dear Joel

As set out in the notice of investigation provided to the Relevant Employee on 23 April 2021, Safe Place received a complaint from the Complainant in relation to an incident which is alleged to have occurred on 2 September 2017.

After receiving the complaint, Safe Place conducted an initial assessment and determined that the allegation should proceed to a formal investigation.

Consistent with your email, I confirm that the Complainant made a complaint to Airservices on 4 September 2017 in relation to the alleged incident on 2 September 2017. No formal investigation was conducted into that complaint. An initial assessment was conducted by the Relevant Employee and the Complainant’s manager once removed and it was decided not to proceed to a formal investigation.

I note that your email suggests that Airservices’ decision to conduct a formal investigation raises concerns with clause 50 of the ATC EA. As set out above, it is accepted that the allegations relate to conduct in 2017 which were previously the subject of an initial assessment. However, neither of these factors prevent the Relevant Employee from being provided with procedural fairness in relation to the current allegations against him.

The Relevant Employee has been provided with details of the allegations and has been invited to participate in an interview in which he will be given a full opportunity to respond to the allegations against him.

Please confirm whether the Relevant Employee is able to participate in an interview on the 11th of May.

Regards

Virginia Reilly”

[17] On 5 May 2021, the CAOOAA sent a letter to the investigator notifying of a dispute under clause 10 of the Agreement.

“Dear Virginia,

The Relevant Employee - Code of Conduct Investigation

We refer to the above investigation, our email correspondence of 30 April 2021 and your reply of 4 May 2021.

You have refused to provide us with the entirety of the complaint history, including all historical and new information. For the Relevant Employee to respond, it is imperative that the Relevant Employee have full particulars of the allegations alleged against him.

It is contrary to the principles of procedural fairness that matters previously dealt with be reactivated after assurances have been given otherwise, after they had concluded and in the absence of new and compelling evidence.

It appears that the alleged conduct is said to have occurred in a social context outside of the Relevant Employee’s employment. Clause 50 of the ATC EA does not permit Airservices to investigate an employee’s conduct in these circumstances. Please urgently provide all historical and new information that you rely on to assert the alternative.

We notify that we are in dispute under clause 10 of the Airservices Australia (Air Traffic Control and Supporting Services) Enterprise Agreement 2020-2023 (the ATC EA).

As we are in dispute, it is not appropriate for the Relevant Employee to meet for an interview until the dispute is resolved.

We have copied Michael O’Neil (Head of Employee Relations) as the relevant senior manager.

Yours faithfully,

Joel Winters
LEGAL OFFICER”

[18] On 24 May 2021, Airservices sent two letters to the CAOOAA:

•  The first letter was from the Head of Employee Relations, denying any basis for dispute; and

•  The second letter was from the investigator and confirmed, amongst other things, that it was the Complainant’s further complaint in relation to the same alleged conduct that was being investigated.

[19] On 27 May 2021, the CAOOAA sent a letter to the Head of Employee Relations and the investigator. The CAOOAA restated that the parties were in dispute and:

•  requested full particulars of the allegations, including “adverse information that is credible, relevant and significant to the decision to be made”, including any written complaint or written record of a complaint, both the 2017 historical complaint and the 2020 new complaint;

•  confirmed the parties hold different views relating to a second investigation of the same alleged conduct and stated in the absence of new and compelling evidence, Airservices could not reactivate matters previously raised in circumstances of assurances of conclusion were provided;

•  confirmed the parties take a different view relating to the right to investigate in the circumstances of the alleged conduct occurring in a social context and outside of an employees employment and that clause 50 of the Agreement does not permit Airservices to investigate in these circumstances; and suggested actions to resolve the dispute

[20] On 23 June 2021, Airservices sent two letters to the CAOOAA:

•  The first letter was from the Head of Employee Relations, continuing to dispute any basis for Civil Air’s dispute of clause 50 of the Agreement, stating the Relevant Employee has been provided with particulars of allegations for adverse findings, an opportunity to respond and that the investigation will proceed.

•  The second letter was from the investigator and further attached:

a. The written complaint of the Complainant dated 4 September 2017;

b. An email from Mr Murray to the HR manager dated 5 September 2017;

c. A redacted file note recording the Complainant’s further complaint in November 2020

[21] On 28 June 2021, the CAOOAA sent a letter to the Head of Employee Relations and the investigator confirming the parties were in dispute, that Airservices had again failed to provide the entirety of the complaint history, historical and current and again requested evidence that is credible, relevant and significant whilst itemising a non exhaustive list of this evidence.

Relevant provisions

[22] The clause in the Agreement that were identified by both parties as relevant to determining the dispute is as follows:

“50. PERFORMANCE, CONDUCT, TERMINATION OF EMPLOYMENT

50.1. The primary focus of managing an employee whose performance and/or conduct is unsatisfactory should be to constructively assist the employee to improve their performance and/or conduct to a satisfactory level within a reasonable time, giving such feedback and assistance as is appropriate. Initial or 'early intervention' processes may include, but are not limited to, providing an employee with a course of training or other remediation. Note taking by the relevant manager during counselling or feedback does not constitute making this a formal process.

50.2 Procedural fairness

Airservices will adhere to the principles of procedural fairness when managing an employee in relation to suspected under-performance or misconduct. This means that Airservices will:

(a) promptly advise the employee of its concerns;

(b) provide enough time to the employee to be represented or supported in relation to the performance and conduct management process;

(c) provide enough opportunity for an employee to respond to the concerns raised by Airservices and to genuinely consider that response;

(d) Airservices will be unbiased in the consideration of the employee’s views and will genuinely consider the matters put by the employee or by their representative; and

(e) Take actions and issue sanctions that are proportional to the employee’s performance and conduct.

50.3 Formal Process

Where Airservices has serious concerns with an employee's performance and/or conduct, Airservices will observe the principles of procedural fairness, advise the employee of its concerns in writing, setting out relevant particulars and arrange a meeting with the employee to discuss those concerns before taking any action against the employee. This process does not apply where the employee has engaged in serious misconduct that warrants summary dismissal.

Without exhaustively stating the actions that Airservices may take to manage an employee's poor performance and/or conduct, Airservices may:

(a) require the employee to undergo remedial training and/or counselling as appropriate to the circumstances of the case;

(b) give the employee a written warning appropriate to the circumstances of the case;

(c) set conditions with which the employee needs to comply;

(d) reduce the employee in classification for a period of time or indefinitely;

(e) terminate the employee's employment.

The case for the CAOOAA

The Dispute

[23] The CAOOAA contended that Airservices is unable to conduct a performance management process within the meaning of clause 50 of the Agreement in that the preconditions for the conduct of a performance review do not exist. In particular, the two preconditions which the CAOOAA submitted do not exist are:

•  that Airservices has serious concerns with the Relevant Employee’s conduct within the meaning of sub-clause 50.3, and

•  that the alleged conduct the subject of the proposed investigation is not a matter properly within the meaning of clause 50 of the Agreement. The Agreement only deals with matters which pertain to the relationship between Airservices and its employees covered by the Agreement (s.172 of the Act). The CAOOAA contended that the alleged conduct the subject of the complaint and formal investigation is not conduct relevantly pertaining to the employment relationship between the Relevant Employee and Airservices.

[24] In addition to the dispute about whether the preconditions of clause 50 have been met, the CAOOAA further contended that, in any event, the earlier steps taken by Airservices in 2017 in respect of the First Complaint about the alleged conduct and the representations made by Airservices to the Relevant Employee concerning the finality of steps to be taken in respect of the alleged conduct have the effect that it is contrary to the requirements of procedural fairness that Airservices further investigate the alleged conduct. Additionally, the CAOOAA contended that Airservices is in breach of its obligation in clause 50 to “promptly advise the employee of its concerns” as is required by sub-clause 50.2 of the Agreement. The CAOOAA submitted that procedural fairness requires timely action.

Is the Respondent able to investigate pursuant to clause 50?

[25] The CAOOAA submitted that in this case, Airservices is embarking upon a formal process within the meaning of subclause 50.3 of the Agreement, and a fundamental precondition to such a step is that Airservices must have ‘serious concerns’ with an employee’s conduct. The CAOOAA contended that in the circumstances, Airservices does not have serious concerns with the Relevant Employee’s conduct.

[26] The CAOOAA submitted that as to the meaning of ‘serious concerns’ the Commission is to apply the principles of interpretation of enterprise agreements as summarised, for example, by the Full Court of the Federal Court in WorkPac Pty Ltd v Skene (Skene) 1:

“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in away likely to be understood in the relevant industry rather than with legal nicetiesand jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).” 2

[27] The CAOOAA submitted that applying those principles, described by the Full Court in Skene in recognising the ‘practical bent of mind’of the makers of the Agreement and the adoption of a purposive approach to the meaning of ‘serious concerns’ within the meaning of sub-clause 50.3, Airservices must genuinely hold the belief or view that the alleged conduct is such as to give rise to concerns of a type greater than concerns which might ordinarily arise in the course of employment. The CAOOAA submitted that the meaning of ‘serious’ in this context, includes grave, heavy, consequential, significant. It is something greater than concerns simpliciter.

[28] Consequently, the CAOOAA submitted that in the circumstances of this case it cannot be said that Airservices has ‘serious concerns’ concerning the Relevant Employee’s conduct, as he has continued to be employed without restriction. The CAOOAA submitted that a precondition that Airservices has serious concerns about the Relevant Employee’s conduct has not been made out and, accordingly, Airservices is unable to conduct a formal process within the meaning of clause 50 of the Agreement.

Out of Hours conduct and Clause 50

[29] The CAOOAA submitted that clearly the enterprise agreement is only in respect of matters pertaining to the employment relationship between those employees covered by it and the Respondent. An obvious consequence of it is that to the extent that conduct does not have any requisite connection with the employment relationship then it falls outside of the subject matters which can be investigated under the Agreement.

[30] The CAOOAA contended that in the circumstances of this case it cannot be said that the alleged conduct, viewed objectively, is likely to cause serious damage to the relationship between the employee and employer when that relationship has continued for over three years since the employer first became aware of the allegations and investigated them. Moreover, CAOOAA submitted that there is no identifiable damage to Airservices’ interests and nor can it be said that the conduct is incompatible with the Relevant Employee’s duty as an employee.

Procedural fairness

[31] Having regard to the general obligation on employers to accord procedural fairness, the CAOOAA submitted that the Agreement should not be interpreted as excluding obligations to accord procedural fairness in the absence of any express provision to that effect. The CAOOAA submitted that this is consistent with the approach to the interpretation of legislation to the effect that absent an express exclusion, where a party is obliged to accord procedural fairness it must do so in the full circumstances of the case.

[32] The CAOOAA submitted that in this case Airservices advised the Relevant Employee that the subject matter of and the First Complaint made in 2017 had been dealt with to finality. In those circumstances the CAOOAA contended that Airservices is in breach of its obligation to accord procedural fairness where it is effectively estopped from conducting any further investigation.

[33] It was submitted by the CAOOAA that there has been no suggestion that the Airservices has developed serious concerns over the course of the time since it first became aware of the allegations being the subject matter of the proposed investigation. The CAOOAA submitted that there is no allegation that there is now a concern different from that which was held in 2017, nor is there any suggestion that the conduct to be investigated is any different than that investigated in 2017. The CAOOAA’s submission was that in fact, Airservices accepts the conduct to be investigated is the same.

Material in its possession relevant to the Investigation

[34] The CAOOAA submitted that the content of the rules of procedural fairness require that the investigative material to which the decision maker (the employer) has access ought be provided to an employee. The CAOAA contended that not only is Airservices obliged to provide all adverse credible information in its possession but also, in the circumstances of this case where it has made previous representations as to the finality of investigation, it should provide the material recording the earlier investigation.

The case for Airservices Australia

Is the Respondent able to investigate pursuant to clause 50?

[35] Airservices submitted that the CAOOAA’s contentions are founded on a series of misconceptions. Airservices contended that they reduce to the proposition that a decision not to investigate a previous complaint, made on an initial assessment only, precludes Airservices now from investigating a separate and subsequent complaint about the same conduct. It is this complaint, made in November 2020, that Airservices seeks to investigate. It was submitted by Airservices that nothing in clause 50 of the Agreement prevents it from doing so. On the contrary, Airservices submitted that they have obligations under the Agreement, its policies and the general law to properly evaluate complaints made by its employees and to formally investigate them where appropriate.

[36] It was submitted by Airservices that the CAOOAA’s contentions regarding procedural fairness are premature, because Airservices has not yet made any decision as to whether there has been a breach of the Code of Conduct, and have only commenced an investigation. Airservices submitted that the Relevant Employee will be afforded procedural fairness as required under clause 50, and will be able as part of the investigation to raise his concerns regarding whether the alleged misconduct falls within the meaning of the Code of Conduct and any other matter arising from the handling of the previous complaint.

[37] Airservices contended that an initial assessment of the First Complaint was made and it was concluded that the First Complaint would not be referred for formal investigation, on the basis, in effect, that there was an insufficient connection between the alleged misconduct and the employment of the Relevant Employee or the Complainant with Airservices. As a result, the First Complaint was not formally investigated.

[38] Airservices submitted that on 18 November 2020, the Complainant made another complaint to Airservices about the Relevant Employee, and while the Second Complaint was about the same events as the First Complaint, it was triggered and contextualised by the circumstance that in the Complainant’s role as NCSS for regional towers, she may be required to have contact with the Relevant Employee.

[39] It was Airservices’ submissions that the Second Complaint was the subject of an initial assessment by Ms Chapman, and this initial assessment was conducted pursuant to an amended version of the Code of Conduct Investigation Procedure, which differed in several ways from the Code of Conduct Investigation Procedure in place at the time of the First Complaint.

[40] Airservices submitted that the initial assessment of the Second Complaint, pursuant to this modified procedure, resulted in a decision to refer the Second Complaint for formal investigation, and the investigation has not been completed and remains in progress. The Relevant Employee has not yet been interviewed or otherwise responded in substance to the second complaint.

[41] Regarding the CAOOAA’s reliance on Skene, Airservices submitted it is not implicit in those principles that an enterprise agreement must be given an interpretation beneficial to employees. Further, Airservices submitted that it would not be correct to approach the task of construction on the basis that the parties intended to prioritise the interests of employees over those of the employer. The questions of practicality, inconvenience and injustice must be viewed from the perspective of both.

[42] Airservices submitted that there was an initial assessment that determined the First Complaint would not proceed to an investigation. Accordingly, there has not been any prior investigation of the subject matter of the Second Complaint for the purposes of clause 50 of the Agreement.

[43] It was submitted by Airservices that there is nothing expressed in clause 50 that precludes Airservices from investigating a complaint merely because the same subject matter has been raised in a previous complaint which was the subject of an initial assessment by Airservices. Further, Airservices contended that there is no reference to concepts of investigation or initial assessment at all in clause 50.

[44] Airservices contended that ‘serious concerns’ should not be read as preclusionary words, preventing Airservices from following its processes or taking any action if they are not satisfied. Airservices submitted that the evident purpose of those words, reading clause 50 as a whole, is to require Airservices to observe the formalities specified in clause 50.3 (which go beyond the ordinary requirements of procedural fairness specified in clause 50.2) in circumstances in which Airservices has ‘serious concerns’. That is, Airservices having ‘serious concerns’ triggers additional protections for an employee. Airservices submission was that it does not follow that Airservices can do nothing in relation to performance or conduct concerns unless it has ‘serious concerns’. For example, Airservices submitted that it remains open to Airservices to manage performance or conduct issues for which it does not have ‘serious concerns’ under clause 50.1, including by providing counselling or feedback as contemplated by that subclause.

[45] Airservices submitted that the fact that conduct has been the subject of a previous complaint or initial assessment does not necessitate a conclusion that Airservices could not have held ‘serious concerns’ about the Relevant Employee’s conduct. The question of whether Airservices has ‘serious concerns’ for the purposes of clause 50.3 is a question of fact determined at the point that Airservices commences the investigation, which in this case is the investigation of the Second Complaint (not the initial assessment of the First Complaint). It was Airservices submission that given that they are a body corporate, the ‘serious concerns’ must be held by an individual representing or having the authority of Airservices for that purpose. In accordance with the Code of Conduct Investigation Procedure, that person is the initial assessor. In the case of the Second Complaint, that individual was Ms Chapman.

[46] It was submitted by Airservices that even if it were accepted that Airservices could not hold ‘serious concerns’ about conduct that had previously been the subject of an initial assessment in circumstances in which ‘nothing had changed’, that was not the situation facing Airservices. There were three material changes in circumstances since the First Complaint:

(a) a second complaint was made about the Relevant Employee’s conduct, which triggered a requirement for a fresh assessment in accordance with the Code of Conduct Investigation Procedure;

(b) changes in the employment arrangements for the Complainant and the Relevant Employee, which meant the Complainant may have to come into contact with the Relevant Employee as part of her employment when she previously would not have; and

(c) changes to the Code of Conduct Investigation Procedure, including a lowering of the standard of satisfaction for proceeding to a formal investigation.

[47] That is, Airservices faces a new complaint, which requires assessment in accordance with a new Procedure, having regard to new factual circumstances. To the extent that some ‘change’ was necessary to justify the course taken by Airservices (which is denied), that had occurred.

Out of hours conduct and Clause 50

[48] Airservices contended that it cannot be said, at a threshold or prima facie level, that out of hours conduct cannot be the subject of investigation or action pursuant to clause 50 of the Agreement. At the time of the alleged events between the Relevant Employee and the Complainant, the Airservices Code of Conduct Policy required employees to do certain things ‘in connection with your employment or engagement with Airservices.’

[49] Airservices submitted that these obligations do not depend on whether conduct is ‘out of hours’ or within work hours, and depend only on whether the conduct has a connection with the employee’s employment with Airservices. Airservices further contended that it is clear, that out of hours conduct may have such a connection depending on the context in which it occurred.

[50] Airservices further submitted that the Code of Conduct also included certain obligations that applied ‘at all times’, including to ‘Behave in a way that upholds Airservices Vision, Mission and Values and promotes the good reputation of Airservices’. This obligation was not qualified by a requirement for a separate connection with the employee’s employment. The connection is supplied by the conduct being contrary to Airservices’ Vision, Mission and Values or its reputation. Again, Airservices submitted that the matter is not determined by whether or not conduct was ‘out of hours’.

[51] It was submitted by Airservices that these matters are confirmed by the Airservices Code of Conduct Management Instruction, which supports the Code of Conduct. The Management Instruction confirms that the Code of Conduct obligations which apply 'in connection with your employment or engagement with Airservices’ may also apply outside work, including if the conduct ‘affects the way you or other people at Airservices perform their duties’, ‘affects working relationships between Airservices employees’ or ‘has a real effect on Airservices’ reputation’. The Management Instruction also states that the other obligations under the Code of Conduct ‘apply whether the conduct occurs at work or outside work’.

[52] Airservice submitted that it follows that the mere fact that the Relevant Employee’s conduct occurred ‘out of hours’ does not preclude it from being made the subject of the processes in clause 50 of the Agreement, including by reason of s 172 (or s 253(1)(a)) of the Fair Work Act. Further, Airservices contended that there is no occasion for the Commission in this proceeding to determine the question of whether the Relevant Employee’s conduct was, in fact, ‘in connection with’ his employment with Airservices or fell within the scope of the broader obligation because those matters are properly the subject of Airservices’ investigation of the Second Complaint.

[53] Airservices contended that the full factual context necessary to determine these matters is not before the Commission and will only be known after the investigation is completed. There will be mechanisms available to the Relevant Employee if he is aggrieved by Airservices’ decision after that occurs, including in this Commission.

[54] Airservices submitted that to the extent that any determination has been made about the connection between the Relevant Employee’s alleged conduct and his employment, that has occurred only in the context of an initial assessment of the Second Complaint. Airservices contended that this is a matter about which Airservices has managerial prerogative and with which the Commission should not interfere.

Procedural fairness

[55] Airservices submitted that the First Complaint was not ‘dealt with finally’, and it was not even investigated.

[56] Airservices submitted that the use of closed language in clause 50.2 of the Agreement (‘This means that ...’) indicates that this subclause exhaustively specifies the requirements of procedural fairness for the purposes of clause 50. Further, it was contended that if the drafters of the Agreement had intended otherwise, they would have indicated that by using open language such as ‘includes’.

[57] Further, it was submitted by Airservices that additional formalities in cases involving ‘serious concerns’, it specifies those requirements in addition to a requirement to ‘observe the principles of procedural fairness’, not as part of that requirement.

[58] Airservices contended that they did not fail to meet any of the requirements in clause 50.2 merely because the subject matter of a complaint has been the subject of a previous complaint or initial assessment. Further, Airservices submitted that even if the requirements of procedural fairness in clause 50 extend beyond those set out in clause 50.2, the CAOOAA has not explained how procedural fairness would require Airservices not to investigate a complaint where its subject matter has been the subject of a previous complaint or initial assessment.

[59] Airservices submitted that the requirement asserted by CAOOAA is not about ensuring a fair hearing or a fair investigation of the Second Complaint. It seeks, pre-emptively, to prevent any hearing or investigation from occurring. It does not assert a grievance with the fairness of the procedure to be followed by Airservices with respect to the Second Complaint, but with the fairness of any procedure being followed at all. Airservices submitted that that complaint is really a complaint about the merits of the decision to investigate, not the fairness of the procedure followed in making that decision or in conducting the investigation, and a complaint of that kind is not encompassed by the concept of procedural fairness.

[60] It was submitted by Airservices that the fact that Airservices told the Relevant Employee that there would not be a formal investigation of the first complaint does not mean an investigation of the second complaint is incapable of being procedurally fair, in the sense that the procedures in clause 50 are followed.

[61] Airservices submitted that clause 50.2(a) of the Agreement provides that, as an element of procedural fairness, Airservices will ‘promptly advise the employee of its concerns’. Read in the context of clause 50, ‘concerns’ must be the concerns with an employee’s performance or conduct in relation to which Airservices proposes to investigate or otherwise take action.

[62] Airservices submitted that the concerns that Airservices is investigating are the concerns arising from Ms Chapman’s initial assessment of the Second Complaint. Those concerns arose only when that initial assessment was finalised in December 2020.

[63] Airservices submitted that there is no reason in the text or context of cl 50 to limit ‘concerns’ or ‘serious concerns’ to concerns arising contemporaneously with the events that are the subject of the complaint.

[64] It was submitted by Airservices that even if there were some prejudice to the CAOOAA by delay, it would not make a subsequent investigation inevitably unfair. Prejudice of this kind is properly addressed as part of the investigation, bearing upon whether the investigator is satisfied of the relevant facts to the appropriate standard. It may also bear upon the appropriateness of any sanction. Airservices contended that it would be contrary to industrial sense to construe clause 50 as preventing Airservices forever from investigating a complaint of serious misconduct merely because of a delay in notifying the relevant employee of the complaint, when that delay can be addressed fairly as part of the investigation and sanction processes.

[65] Airservices submitted that in those circumstances, even if the Commission considered that Airservices had not promptly notified the Relevant Employee of its concerns as required by cl 50.2(a) of the Agreement, it does not follow that Airservices should be required to cease its investigation.

Material in its possession relevant to the Investigation

[66] Airservices emphasised that the investigation has not been completed and no decision has been made. Further, Airservices contended that an investigator is not obliged to disclose all adverse material that will be considered at the very beginning of the investigation; that would render the investigation process nugatory. Airservices’ submission was that what is required is that the investigator gives the person under investigation a fair opportunity to be heard before any decision is made and there is no reason to think that Airservices will not do this.

[67] Airservices submitted that it is not the case that Airservices must disclose to the Relevant Employee every document that he or the CAOOAA may request in connection with the investigation. What Airservices must do under the Agreement is to disclose to the Relevant Employee ‘relevant particulars’ of its concerns.

[68] Airservices accepted that a higher level of disclosure may be required in a disciplinary context, but, as the cases relied upon by the CAOOAA demonstrate, the extent of disclosure required will depend on what is necessary to achieve practical justice in the particular circumstances of the case, including having regard to issues of confidentiality for witnesses. Further, Airservices stated that this cannot be determined by this Commission in the abstract. It is properly a matter to be assessed by Airservices’ investigator as part of the investigation.

[69] Airservices provided that the Relevant Employee and the CAOOAA have been given documents in response to their particular requests, despite there being no necessity to do so at this stage for the reasons set out above.

[70] Airservices submitted that even if the Commission were satisfied that Airservices should make further disclosure at this stage of the investigation, the appropriate determination would be for Airservices to make that disclosure, not to cease its investigation.

Consideration

[71] Having considered the evidence and the submissions made by the parties, I reluctantly find that clause 50 does not prevent Airservices from investigating the Second Complaint.

[72] There is no dispute that the conduct the subject of both the First and Second Complaints, made almost 3 years apart, is exactly the same. There is no new evidence that has come to light or new allegations that have been made against the Relevant Employee.

[73] What follows, and what is not in dispute, is that all the details of the alleged conduct of the Relevant Employee was within the knowledge of Airservices in 2017 when the First Complaint was made and considered by Airservices. It is also not in dispute that the Airservices manager who made the decision not to further pursue the matter was authorised to do so. The evidence of the Relevant Employee, which was not challenged in cross examination, includes that he was advised that after completing an assessment of the First Complaint, Airservices decided that there were no grounds for a formal investigation and there would be no impact on his future career.

[74] I do not agree with the submissions of Airservices to the effect that the outcome of the consideration of the First Complaint is somehow diminished because it was only subject to a preliminary assessment rather than a formal investigation. Again, with all the relevant information available to it, Airservices made a decision that the alleged conduct would not be a breach of its Code. That it formed this view without the need for a formal investigation does not in any way negate its decision. In fact the opposite is probably the case, being the outcome was apparently so clear that there was no breach of the Code that a formal investigation was unnecessary. In this regard, I consider the First Complaint was dealt with to finality.

[75] It is difficult to see how a decision to investigate the Second Complaint in these circumstances could be considered fair. It may well be that Airservices is estopped from coming to a different outcome in terms of the Second Complaint, including because of the representation it made to the Relevant Employee that there would be no impact on his future career. However, the Commission’s role in this application is limited to answering the questions that are set out in paragraph 3 above in order to determine the dispute.

[76] While I consider that an investigation into the Second Complaint may well result in substantive unfairness for the Relevant Employee (in the event it results in a different outcome to the outcome of the First Complaint), clause 50 is only directed to procedural fairness. In other words, it is the process rather than the outcome that is the focus of clause 50.

[77] I do not agree with the CAOOAA’s view that Airservices must have ‘serious concerns’ before it can conduct an investigation. While the clause could be better drafted, it is apparent that Airservices can manage performance or conduct issues for which it does not have ‘serious concerns’ under clause 50.1, including by counselling or feedback which are both contemplated by the clause.

[78] Clause 50, in my view, does not prevent Airservices from investigating a complaint because the allegation potentially involves out of hours conduct.

[79] I agree with the submissions of Airservices that CAOOAA’s expressed grievances are not about ensuring a fair hearing or a fair investigation of the Second Complaint, but rather it seeks to prevent an investigation from occurring. It does not assert a grievance with the fairness of the procedure to be followed by Airservices with respect to the Second Complaint, but with the fairness of any procedure being followed at all. I further agree with Airservices’ characterisation of CAOOAA’s complaint as a complaint about the merits of the decision to investigate, not the fairness of the investigation procedure, and a complaint of that kind is not encompassed by clause 50.

[80] On a plain reading of the words of clause 50, there is no limitation imposed on Airservices in conducting a procedurally fair investigation. Nor is there any limitation on Airservices in investigating a complaint that may relate to out of hours conduct, as an investigation may be necessary to determine whether the alleged conduct has the requisite connection to the employee’s employment obligations.

[81] The answer then to both questions is yes. The dispute is so determined.

DEPUTY PRESIDENT

Appearances:

E White of Counsel for the Civil Air Operations Officers’ Association of Australia.
E Raper of Counsel for the Airservices Australia.

Hearing details:

2021.
Canberra (via Microsoft Teams):
September 15.

Printed by authority of the Commonwealth Government Printer

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 1 [2018] FCAFC 131; (2018) 280 IR 191.

 2 Ibid at [197].