Toby Tucker v State of Victoria
[2020] FWC 3159
•29 JUNE 2020
| [2020] FWC 3159 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Toby Tucker
v
State of Victoria
(C2017/3152)
COMMISSIONER BISSETT | MELBOURNE, 29 JUNE 2020 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
[1] On 27 June 2019 I handed down a decision 1 in which I dismissed Mr Toby Tucker’s claim for re-classification (Classification Decision).
[2] Mr Tucker was a Senior Solicitor (VPS Grade 5 VR 2) in the Customer Services and Debt Management Branch (CSDM Branch) at the State Revenue Office (SRO) in the Department of Treasury and Finance (DTF). He had applied to the Fair Work Commission to deal with a dispute in accordance with the dispute resolution procedure of the Victorian Public Service Enterprise Agreement 2016 2 (2016 Agreement). The application was made pursuant to s.739 of the Fair Work Act 2009 (FW Act) and was made on 13 June 2017. The Respondent to the dispute is the State of Victoria (State).
[3] In his notification of dispute to the Commission Mr Tucker raised two issues on which he said he was in dispute with SRO, the first being the correct classification of the position he occupied and the second going to his pay progression in conjunction with misconduct processes.
[4] Prior to the hearing of his application Mr Tucker wrote to the Commission and indicated that he sought only to have the classification matter dealt with first and that the progression dispute should be held in abeyance pending the finalisation of a related matter before the Supreme Court of Victoria.
[5] Since the handing down of the Classification Decision Mr Tucker’s action in the Supreme Court of Victoria has been finalised with a decision issued on 16 July 2019. 3 Mr Tucker had his employment terminated on 19 July 2019 subsequent to that decision. An unfair dismissal application in relation to the dismissal was filed in the Commission by Mr Tucker. That application is not yet finalised.
[6] Mr Tucker now seeks to have his progression dispute determined. The matter was heard on 29 April 2020.
PERMISSION
[7] At the commencement of proceedings Mr Tucker indicated that he opposed the State being granted permission (or permission continuing) to be represented by lawyers.
[8] I was satisfied that the requirements of s.596(2)(a) were met and determined that permission should continue for the State to be represented by a lawyer.
RELEVANT WORKPLACE INSTRUMENTS
[9] Again, and for completeness, I repeat some background set out in the Classification Decision as is relevant to the remainder of the dispute now before me.
[10] Mr Tucker commenced his employment with SRO on 28 November 2011. At that time the Victorian Public Service Enterprise Agreement 2006 (as extended and varied) (2006 Agreement) applied to his employment.
[11] On 23 July 2012 the Victorian Public Service Workplace Determination 2012 (2012 Determination) came into operation and from that time applied to Mr Tucker’s employment.
[12] On 18 May 2016 the Victorian Public Service Enterprise Agreement 2016 (2016 Agreement) came into operation and applied to Mr Tucker’s employment.
[13] Clause 12 of the 2016 Agreement and clause 11 of the 2012 Determination allow for matters arising under each to be dealt with in accordance with the detailed dispute settlement procedure. Each clause indicates that a dispute includes a grievance. A grievance is not otherwise defined.
[14] Clause 6.4 of the 2016 Agreement states that:
6.4 A dispute or grievance that is being considered pursuant to clause 11 of the Victorian Public Service Workplace Determination 2012 at the time this Agreement commences operation may continue to be considered pursuant to clause 12 of this Agreement.
[15] The effect of clause 6.4 of the 2016 Agreement is that a dispute properly raised in accordance with clause 11 of the 2012 Determination that is being considered can continue to be dealt with under clause 12 of the 2016 Agreement.
[16] The effect of the savings clause is not to preserve the old dispute resolution clause or any aspect of the old agreement or determination but rather to allow the dispute to continue to be dealt with under the later dispute resolution procedure. The effect of each of these clauses is that a dispute properly raised under the 2012 Determination may be “preserved” and able to be dealt with under the 2016 Agreement.
MATTER IN DISPUTE
[17] Clause 22 of the 2012 Determination and clause 24 of the 2016 Agreement 4 relate to eligibility for progression payments within a grade or value range and are in the same terms. A copy of clause 24 of the 2016 Agreement is at Attachment A to this decision.
[18] By reference to the 2016 Agreement, provision is made in clause 24 for progression to occur within a Grade/Value Range. Progression is not automatic but occurs when an employee is assessed at the annual performance review as meeting the “progression criteria” (clause 24.1(d)).
[19] The performance cycle occurs on a financial year basis with each performance cycle ending on 30 June (clause 24.3(a)). (Note that any references in this decision to the 20XX performance year is a reference to the performance cycle ending on 30 June 20XX.)
[20] The progression criteria is agreed at the commencement of the performance cycle (clause 24.3(c)) with a review undertaken at the end of the cycle with eligibility for progression requiring the employee to meet all of the elements of their performance plan (clause 24.3(f)). The progression criterial are to be developed using the performance standards in clause 24.4
[21] There are some exceptions to the general rule on progression eligibility including circumstances where “the employee is subject to proven misconduct as per clause 21 during the course of the performance cycle” (clause 24.3(g)(iv)).
[22] Performance standards “may be weighted and combined… to make up an individual Employee’s “progression criteria” (clause 24.4(a) with performance standards for all grades being achieving performance targets, demonstrating public sector values and behaviours and applying learning and development (clause 24.4(b)(i)-(iii)).
[23] On 6 March 2018 in accordance with a request of the Commission, Mr Tucker identified the questions to be answered in relation to his progression dispute. By further correspondence he seeks to extend those questions:
1. Was the Applicant entitled to progression pay for the year ending 30 June 2015 in accordance with Clause 22 of the VPS Determination 2012?
2. Was the Applicant entitled to progression pay for the year ending 30 June 2016 in accordance with Clause 24 of the VPS [2016] Agreement?
3. Was the Applicant entitled to progression pay for the year ending 30 June 2017 in accordance with Clause 24 of the VPS Agreement?
4. Was the Applicant entitled to progression pay for the year ending 30 June 2018 in accordance with Clause 24 of the VPS Agreement?
5. Was the Applicant entitled to progression pay for the year ending 30 June 2019 in accordance with Clause 24 of the VPS Agreement?
[24] The questions posed by Mr Tucker arise pursuant to the 2012 Determination and the 2016 Agreement. To that extent I am satisfied that they are matters arising under the 2012 Determination and the 2016 Agreement. I am therefore satisfied that I do have jurisdiction, subject to specific findings below, to deal with the with the dispute.
MATTERS TO BE DETERMINED
[25] In order to resolve the matters raised by Mr Tucker the parties agreed that there were four issues to be dealt with:
1. Does the Commission have jurisdiction under the 2016 Agreement to arbitrate Mr Tucker’s claim for progression in relation to the 2015 progression year (year ending 30 June 2015). Matters relating to the 2015 progression year arise under the 2012 Determination;
2. Does the Commission have jurisdiction to deal with Mr Tucker’s claim for progression in the 2019 progression year (that is the year ending 30 June 2019);
3. The construction of the progression pay clause (clause 24), in particular:
a. The circumstances under which an employee will be entitled to progression; and
b. The circumstances when an employee will not be entitled to progression in particular when misconduct is found to have occurred;
4. The merits of Mr Tucker’s claim to progression. (Related to this is a range of objections raised by the State to material filed by Mr Tucker and an objection by Mr Tucker as to how the State’s those objections should be dealt with.) 5
[26] Having heard from the parties in relation to the matters that required consideration I indicated that I would deal with the jurisdiction of the Commission to deal with the 2015 and 2019 progression years, the interpretation of the progression clause, the State’s objection to the material filed by Mr Tucker in March 2020, the objection of Mr Tucker to dealing with the States objection to additional material and Mr Tucker’s objection to the State being given the opportunity to file further evidence. I would not deal with the merits of Mr Tucker’s claim for progression as it was dependent on rulings in relation to the objections raised.
[27] Items 1 and 2 in paragraph [25] above both go to the jurisdiction of the Commission and relate to whether the matters in dispute raised by Mr Tucker (in relation to progression) were properly raised pursuant to the dispute settling procedure of the 2012 Determination or the 2016 Agreement.
[28] Mr Tucker gave notice that he abandoned and no longer sought to rely on submissions filed by him in reply in November 2018.
2015 PROGRESSION DISPUTE
Submissions
[29] If Mr Tucker did properly raise a dispute pursuant to the 2012 Determination in relation to his progression pay for 30 June 2015 then that dispute is saved by the operation of the savings clause in the 2016 Agreement and can continue to be dealt with by the Commission.
[30] Mr Tucker submits that in November 2015 he was told by his manager, Mr Graham George, that he would not be getting his progression pay for that year (i.e. ending 30 June 2015). He says that he protested this with Mr George at the time. This was followed by a meeting with Mr Paul McKee, the Branch Manager also attended by a CPSU representative.
[31] Mr Tucker submits that he then emailed Mr McKee on 18 December 2015 6 in which he formally raised a dispute as to the non-payment of progression for the 2015 year.
[32] Mr Tucker submits that clause 11.7.1 of the 2012 Determination sets out how a dispute must be raised for the purpose of that instrument – the dispute is first discussed by the employee with his or her immediate supervisor. He says he did that and then, by the email of 18 December 2015, he formalised that dispute.
[33] Mr Tucker says that there is nothing that indicates that the SRO undertook any review of the progression matter such that the dispute could be considered to have been dealt with.
[34] Mr Tucker submits therefore that the dispute was properly raised under the 2012 Determination and is preserved by clause 6.4 of the 2016 Agreement.
[35] The State (properly) identify that the issue for determination is if there was a dispute being considered pursuant to the 2012 Determination at the time the 2016 Agreement commenced to operate.
[36] The State agree that Mr Tucker raised the issue of progression for the 2015 year in his email of 18 December 2015. However the matters raised by Mr Tucker in relation to Mr George’s decision were reviewed by Mr McKee following the meeting with Mr Tucker on 17 December 2015 and that Mr Tucker was advised that Mr McKee, on review, considered the overall rating given to Mr Tucker was appropriate. 7 Mr McKee’s evidence is that he did not hear any more of the issue from Mr Tucker until January 2017.
[37] At the request of the CPSU Representative in late February 2016 Mr David Heywood, the HR Manager reviewed Mr Tucker’s concerns and rating. He advised the CPSU Representative that he had reviewed the rating given to Mr Tucker and considered it appropriate. 8 Mr Heywood said he heard no more of the matter.
[38] The State submits that it is not enough for Mr Tucker to have raised the matter and then take no positive steps to progress the issue. It says that while it is true that Mr Tucker raised his grievance in 2015 with Mr George, then Mr McKee and Mr Heywood he did no more with the dispute after Mr Heywood provided a response to CPSU Representative in February 2016. The State submits that the obligation is on Mr Tucker to take some positive action to activate or keep active the dispute settling process. Once commenced the dispute does not remain ongoing indefinitely without some positive action by Mr Tucker to keep it so. For this reason the State submits that the 2012 dispute settling procedure was not engaged.
Consideration
[39] The dispute settling procedure in the 2012 Determination is the relevant procedure in relation to the 2015 dispute. It relevantly provides that:
11. RESOLUTION OF DISPUTES
11.1 For the purposes of this clause 11, a dispute includes a grievance.
11.2 Unless otherwise provided for in this Determination, a dispute about a matter arising under this Determination or the National Employment Standards set out in the FW Act, other than termination of employment, must be dealt with in accordance with this clause. For the avoidance of doubt, a dispute about termination of employment cannot be dealt with under this clause.
11.3 This clause does not apply to any dispute regarding a matter or matters arising in the course of bargaining in relation to a proposed enterprise agreement.
11.4 A person covered by this Determination may choose to be represented at any stage by a representative, including a Union representative or Employer’s organisation.
11.5 Obligations
11.5.1 The parties to the dispute and their representatives must genuinely attempt to resolve the dispute through the processes set out in this clause and must cooperate to ensure that these processes are carried out expeditiously.
11.5.2 Whilst a dispute is being dealt with in accordance with this clause, work must continue in accordance with usual practice, provided that this does not apply to an Employee who has a reasonable concern about an imminent risk to his or her health or safety, has advised the Employer of this concern and has not unreasonably failed to comply with a direction by the Employer to perform other available work that is safe and appropriate for the Employee to perform.
11.5.3 No person covered by this Determination will be prejudiced as to the final settlement of the dispute by the continuance of work in accordance with this clause.
11.6 Determination and Dispute Settlement Facilitation
11.6.1 For the purposes of compliance with this Determination (including compliance with this dispute settlement procedure) where the chosen Employee representative is another Employee of the Employer, he/she must be released by the Employer from normal duties for such periods of time as may be reasonably necessary…
11.7 Discussion of Dispute
11.7.1 The dispute must first be discussed by the aggrieved Employee(s) with the immediate supervisor of the Employee(s).
11.7.2 If the dispute is not settled, the aggrieved Employee(s) can require that the dispute be discussed with another representative of the Employer appointed for the purposes of this procedure.
11.7.3 …
11.11 Arbitration
11.11.1 If the dispute has not been settled when conciliation has been completed, a party to the dispute may request that FWA proceed to determine the dispute by arbitration.
[underlining added]
[40] In the Classification Decision I found that:
[26] Whilst employees may legitimately have a chat at the pub or around the office of matters on which they are not satisfied within the workplace a more formal approach needs to be taken if an employee wishes some formal and considered action to be taken about that matter on which they are aggrieved. I am not satisfied that Mr Tucker did so and am therefore satisfied that the classification matter raised in late 2011 was resolved in 2013. I certainly reject any notion that raising the matter at the pub as described by Mr Tucker constitutes raising a grievance.
[41] In this case I am satisfied that, on 18 December 2015 following a meeting on 17 December 2015, Mr Tucker did formally raise “some objections with comments in [his] PDPP” and, after detailing a range of matters, said that he saw “no reason why [his] progression payment should be withheld.” 9
[42] I am satisfied that Mr McKee acknowledged the objections raised by Mr Tucker and responded to them. 10 I am also satisfied that Mr Tucker’s CPSU representative further raised the issues with Mr Heywood in February 2016 who provided a response.
[43] The next apparent mention of Mr Tucker’s concern with the failure to be awarded progression pay for the year ending 30 June 2015 is in a series of emails between Mr Tucker, Mr McKee and Mr Heywood that commence on 23 January 2017 11 – 11 months after the last activity on the matter. That series of emails is in relation to the progression payment for 30 June 2015 and 30 June 2016 and occurred after the 2012 Determination had ceased to apply and had been replaced by the 2016 Agreement.
[44] The dispute settling procedure in the 2012 Determination as set out above requires that the parties “genuinely attempt to resolve the dispute” and that the process is “carried out expeditiously”.
[45] Beyond his correspondence of 18 December 2015 (and a discussion that it seems was instigated by the CPSU Representative in February 2016) Mr Tucker does not appear to have attended to his 2015 progression pay dispute for almost 12 months and then not until issues arose with respect to his 2016 progression pay.
[46] If Mr Tucker was genuine in his attempts to resolve the 2015 dispute he would not have sat on his hands for almost 12 months and done nothing about the dispute, but this is what occurred. A failure to take any action to progress the matter does not suggest a genuine attempt was made by him to resolve the issue.
[47] The lack of action also counts against Mr Tucker attempting to have the matter resolved expeditiously – that is, promptly or efficiently. 12
[48] I am satisfied that Mr Tucker received a response to his grievance/dispute of 18 December 2015. He cannot now say that SRO undertook no review of the matters he raised. Even if his managers had not, there is still no explanation as to why Mr Tucker did not follow up the matter if it remained in dispute.
[49] Is this failure of Mr Tucker enough to suggest he has not complied with the dispute settling procedure of the 2012 Determination such that his dispute, in relation to the 2015 progression year, is not within jurisdiction?
[50] As I observed in the Classification Decision, Mr Tucker is a practising lawyer, well studied and clearly competent. He is not a novice in reading and understanding legal documents or legislation. Yet he has provided no explanation for his failure to attend to the 2015 dispute. By allowing the matter to lapse I am satisfied that the dispute settling procedure in the 2012 Determination concluded at the time Mr Heywood responded to the CPSU Representative in February 2016.
[51] In May 2016 the 2012 Determination ceased to apply. The dispute raised in accordance with the dispute settling procedure in the 2012 Determination by Mr Tucker in relation to his 2015 dispute was not “saved” by provisions of the 2016 Agreement.
[52] I therefore find I have no jurisdiction to deal with the 2015 dispute.
THE 2019 PROGRESSION DISPUTE
Submissions
[53] Mr Tucker submits that his dispute with SRO properly extends to the progression payment he says was due to him for the year ending 30 June 2019.
[54] Mr Tucker says that this application for the Commission to deal with his dispute as notified in his application to the Commission was lodged in June 2017 with respect to progression payment up until the year ending 30 June 2016. In conferences before Deputy President Hamilton that dispute was extended to include the years ending 30 June 2017 and 30 June 2018.
[55] Mr Tucker says that the SRO has not paid him a progression payment for the year ending 30 June 2019 and he now seeks that the dispute be extended to include that year, just as it was extended to include the years ending 2017 and 2018. Mr Tucker submits that, with respect to the year ending 30 June 2019, he had engaged the dispute settling procedure. In this regard he refers to an email sent to Ms Peta Jennings at the SRO on 17 June 2019 in relation to an email he had received from Mr Heywood in which Mr Heywood said, in part and in response to correspondence from Mr Tucker:
You were previously advised that, given your suspension from duty at the SRO, it is not possible to finalise your performance review for the cycle ending 30 June 2017 at this time. Progression criteria were not set for the 2018 and 2019 financial year performance review cycles and therefore have not been met. If and when you return to work, your performance review processes will be competed as appropriate.
[56] Mr Tucker said in the email to Ms Jennings:
Please note that if I do not receive answers to these matters, I may be required to escalate these matters to Paul Broderick and David Martine (the relevant ‘public sector body heads’).
[57] On 28 June 2019 Mr Tucker sent an email with respect to the matters raised with Mr Heywood and Ms Jennings to Mr Broderick and Mr Martine (Dept of Treasury and Finance):
Dear Mr Broderick and Mr Martine
I refer to the below requests to Ms Jennings.
Unfortunately, I have not had any reply before Ms Jennings departed the SRO.
As a courtesy, please see below email thread which brings these disputes under the Enterprise Agreement to your attention.
Regards
Toby Tucker
[58] Mr Tucker also says that he advised the Commission of the expansion of the progression dispute to include the 2019 year on 30 July 2019.
[59] Mr Tucker relies on the decision of the Commission in Brierley & Another v Victoria Police 13 (Brierley)as authority for the proposition that the Commission has power to expand a dispute from that originally notified.
[60] The State says that the Commission does not have jurisdiction to deal with the Mr Tucker’s dispute for the year ending 30 June 2019. It submits that no performance criteria were established for that year against which Mr Tucker’s performance could be measured. On this basis it says that there are no grounds to find a dispute exits.
[61] Further, the State submits that there is no evidence that Mr Tucker has engaged the dispute settling procedures in relation to his claim for the 2019 year, it is insufficient to engage the jurisdiction of the Commission by sending an email to the Commission indicating that he wishes to expand the dispute and that Mr Tucker was not an employee of SRO or covered by the 2016 Agreement at the time he sought to enliven the 2019 year dispute.
[62] The State also submits that Mr Tucker had been suspended from his employment in June 2017 with his employment terminated on 19 July 2019. In this respect the State says that Mr Tucker was not employed by SRO when he sought to enliven the dispute with the Commission by his email of 30 July 2019.
[63] The State relies on the decisions in New South Wales Local Government, Clerical, Administrative, Energy Airlines & Utilities Union t/a United Services Union v Essential Energy 14 (Essential Energy) and Freeman v State of Victoria15 (Freeman) in support of the proposition that, while Mr Tucker can continue to have his pre-dismissal dispute dealt with after the termination of his employment, he cannot initiate a new matter. Further, it submits that the decision in Essential Energy also stands for the proposition that, if an express term of an enterprise agreement requires various steps to be taken before a dispute can be brought to the Commission, then those steps must occur. It says that, in this case, there is no evidence that the steps have occurred.
[64] The State rejects Mr Tucker’s argument that it would be more efficient for the Commission to deal with his 2019 dispute at the same time as the progression dispute for other years as it says there is no basis on which he could bring the 2019 dispute within the jurisdiction of the Commission.
Consideration
[65] In the decision in Brierley, Commissioner Wilson said that:
[31] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. 16 The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.17 Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.18 The character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.19 However, the relief sought may cast light on the true nature of the dispute in some cases.20
[66] In Essential Energy Deputy President Sams was dealing with a matter where an employee of Essential Energy “lodged a grievance about the matter on 1 August 2014, which was ultimately taken as a dispute to the Commission…[That] dispute was listed for conciliation …on two occasions and the matter was closed on 5 October 2016. The dispute was not agitated again by Mr Walker or the Union, prior to his termination of employment and not until this notification (16 November 2018).” In dismissing the application in the matter before him, the Deputy President considered the relevant authorities in relation to the jurisdiction of the Commission to deal with a dispute. In particular the Deputy President referred to the decision in Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd 21 where the Full Bench discussed the relevant authorities and reaffirmed the proposition cited from ING Administration Pty Ltd v Jajoo22 (ING). The Deputy President concluded that in the circumstances before him he did not have jurisdiction to deal with the application.
[67] In ING the majority of the Full Bench of the AIRC said:
[58] In our view, the dispute settlement process should be viewed as a single process agreed by the parties to resolve disputes, rather than a series of separate rights and obligations which should be viewed conjunctively. That being so, an employee who had commenced to deal with a grievance or dispute while employed is not precluded, in our view, from continuing to progress that matter if it remains unresolved, notwithstanding that in the interim period they may have ceased to be employed by the employer.
[68] In Freeman I was required to determine if the Commission had jurisdiction to deal with a matter in circumstances where the applicant had not completed the steps in the dispute settling procedure of the relevant agreement. I ultimately found that the Commission did not have jurisdiction even though the required steps had been completed under an earlier agreement. I would note that I did observe that a dispute will evolve as it is “subject to negotiations between the parties and conciliation before the Commission. It is inevitable that a dispute will develop in some aspects and disappear in others as discussion continues and solutions are found” and that it is “the dispute, properly characterised at the time the Commission is asked to arbitrate, that is relevant.” 23
[69] In this case I would note that, beyond his emails to Ms Jennings and Mr Broderick and Mr Martine in June 2019 there is no evidence of Mr Tucker taking any other action in relation to the dispute.
[70] That the Commission has characterised the current dispute as one relating to the operation of the progression clause of the 2016 Agreement does not provide general license to broaden the dispute beyond the years where it has been properly instituted. In this case I am satisfied that Mr Tucker did raise the 2019 dispute as a formal dispute prior to the termination of his employment and, shortly thereafter, with the Commission. On its face this would be enough to bring the matter within the framework of the dispute before the Commission.
[71] The dispute settling procedure requires that a dispute be first discussed with an employee’s immediate supervisor (clause 12.7(a)) and then referred to a representative of the employer if required by the employee. Beyond this there appears to be no other requirement that any steps be taken prior to the referral of the matter to the Commission.
[72] I am satisfied that Mr Tucker was an employee of the State when he raised the issue of the 2019 progression payment with Ms Jennings and then Mr Broderick in June 2019.
[73] The dispute settling procedure of the 2016 Agreement (set out above) requires that discussion occur between the employee and employer. I am satisfied that, by the email exchange between Mr Tucker and various officers of SRO, Mr Tucker attempted to have such discussion. He should not lose access to the various stages of the dispute settling procedure because those discussions or invitations to discuss were not taken up by the SRO.
[74] Further, the dispute settling procedure allows a party to the dispute to request that FWA (the Commission) proceed to determine the dispute. That is what Mr Tucker now seeks to do.
[75] Although Mr Tucker has asked that the Commission deal with that dispute after his employment was terminated but only a matter of weeks after not receiving a response that he considered resolved the dispute, I do not consider this an impediment to the Commission considering the matter. It was apparent to Mr Tucker that he was not going to receive a response to the matters raised so, correctly, sought to escalate the dispute, as was his right.
[76] I am therefore satisfied that Mr Tucker has properly enlivened the jurisdiction of the Commission such that a dispute over the failure to make a progression payment for the 2019 year is properly before the Commission.
[77] The dispute as notified to the Commission and as extended to the 2017 and 2018 years at conference is therefore extended to the 2019 year.
[78] My conclusion would have been different had Mr Tucker sought to make a fresh application to the Commission to deal with a dispute (assuming he was still employed by the State) in relation to the 2019 year.
[79] The situation that confronts me is not analogous to that in Freeman or Essential Energy. In both of those case the applicants had not engaged with the dispute settling procedure as required in the relevant agreement whilst employed with the Respondent. Both sought to rely on disputes previously properly commenced but, in both cases, this was dismissed as not meeting the requirements in relation to the dispute before the Commission as that time.
[80] There does, of course, remain a question of whether there is any utility in dealing with the 2019 dispute because Mr Tucker was stood down in June 2017 and did not return to work for SRO or the State in any capacity from that point until the termination of his employment, suggesting that he could not have reached any agreement with the SRO in relation to the performance cycle criteria. There is, in this respect, no dispute before the Commission in relation to such a failure.
[81] It may be that this question of utility needs to be revisited later in this decision.
CLAUSE 24 – PROGRESSION WITHIN A VALUE RANGE
Submissions
[82] Mr Tucker submits that the provisions of clause 24 of the 2016 Agreement are clear on their face. Clause 24.3(g) provides that an employee is eligible for progression except in specified circumstances, including where “the Employee is subject to proven misconduct per clause 21 during the course of the performance cycle.” 24
[83] Mr Tucker submits that clause 24 ought to be applied in accordance with the following:
• the progression criteria must be clearly identified and agreed to with respect to each performance cycle;
• progression should be applied by the employer fairly and in a way that encourages the high performance of employees. Conversely, the employer should not apply the clause narrowly to pressure or otherwise bully a high performing employee to depart the workplace voluntary.
• if the employer relies on a misconduct process to deny progression to an otherwise eligible employee, then the allegations of misconduct must be genuine, have substance and have a rational basis.
• an employee is only subject to “proven misconduct as per clause 21” when the relevant misconduct process concludes, and not when the alleged conduct was said to have occurred nor when the employer’s “findings” are made. The clause 21 misconduct process concludes when the employer advises that the employee that findings have been accepted and implements the disciplinary outcome (e.g. a warning, termination, progression to be withheld etc). 25
[84] Mr Tucker submits that it is clear by clause 21 that the misconduct process concludes once clause 21.12 of the misconduct process is complete and that is when the employer advises the employee of the outcome of the process and delivers the penalty for that conduct.
[85] Mr Tucker put in his submissions, in response to a question from the Bench, that the misconduct proceedings in his matter did not conclude until 19 July 2019 when he was dismissed from his employment. He also said that “the clause 21 process concludes…when the employer sends out the letter” that specifies the disciplinary action.
[86] Mr Tucker rejects the construction of clause 24 as proposed by the State as, he says, it would allow the employer to “inequitably sit of allegations of workplace misconduct” to “spring them…to retrospectively deny progression for years passed.” Such an approach, he submits, would be contrary to the requirements of clause 21 which require allegations to be dealt with expeditiously.
[87] Mr Tucker says that the State’s construction of clause 24.3(g)(iv) is “illogical and impractical.” If it was allowed to stand Mr Tucker suggests it would allow a department to claw back progression payments granted on the basis of misconduct not established until later years.
[88] Mr Tucker further submits that the State chose to suspend him and now cannot rely on that to deny a progression payment as suspension is not one of the grounds for ineligibility of progression pay specified in clause 24.3(g) of the 2016 Agreement.
[89] Mr Tucker submits that he merited progression payments in each year from 2016 to 2019 as he satisfied the progression criteria and he was a high performing employee.
[90] The State submits that eligibility for progression pay is subject to both of the following:
(i) an employee meeting all the elements of their individual performance plan in the given performance cycle; and
(ii) that none of the exceptions in clause 24.3(g) apply.
[91] The State submits that clause 24.3(g)(iv) excludes an employee from progression pay who has been “subject to proven misconduct as per clause 21 during the course of the performance cycle.”
[92] Clause 21 sets out the process in relation to the management of misconduct. Clause 21.3 provides a non-exhaustive definition of misconduct and clause 21.10(d)-(f) details the process for any investigation of misconduct.
[93] Clause 21.10 of the 2016 Agreement states:
21.10 Investigation of alleged misconduct
…
(d) In relation to each allegation of misconduct, the investigator will make findings as to whether:
(i) the allegation is substantiated; or
(ii) the allegation is not substantiated.
(e) Where the investigator makes a finding that an allegation is not substantiated, which is accepted by the Employer, the misconduct process will conclude in relation to any such allegation and the Employee will be informed accordingly.
(f) Where the investigator makes a finding that the allegation is substantiated, the Employer will consider this information and propose a discipline outcome.
[94] The State submits that the “proven misconduct” referred to in clause 24.3(g)(iv) is a reference to a finding that the alleged misconduct is substantiated under clause 21.10(d)(ii) of the 2016 Agreement.
[95] Further the State submits that “subject to proven misconduct” and “during the course of the performance cycle” are a reference to the performance cycle in which the misconduct occurred rather than the performance cycle in which the finding of misconduct was made. This, it submits, avoids the unintended consequence of an employee receiving progression pay in a performance cycle just because the findings of misconduct were not made until after the performance cycle was competed.
Consideration
When is misconduct “proven” under Clause 21 of the 2016 Agreement?
[96] Clause 24.3(g)(iv) provides that an employee is not entitled to a progression payment where “the Employee is subject to proven misconduct as per clause 21 during the course of the performance cycle”.
[97] This raises a question as to when misconduct is “proven…as per clause 21.”
[98] Clause 21 of the 2016 Agreement deals with managing misconduct.
[99] At clause 21.3 the meaning of misconduct is specified to include a contravention of the Public Administration Act 2004 (Vic), the related regulations, a binding code of conduct or a provision of any statute or regulation that applies to the employee’s employment; improper conduct; contravention of a lawful direction; improper use of a position for personal gain; and improper use of information to cause detriment to the VPS or public sector.
[100] Clause 21.7 provides that, where misconduct is alleged, the employer must make an initial assessment of the alleged misconduct before commencing a formal process; determine if it is appropriate to commence an immediate investigation of the misconduct; direct the employee to perform alternative duties; direct the employee not to speak to other employees of the matter or visit certain workplaces; and/or stand the employee down with pay.
[101] Clause 21.10 sets out matters relevant to the investigation of allegations of misconduct. It allows for the investigation to be carried out by the employee’s immediate manager or a person appointed to do so who has not had prior personal involvement in the matter. The employee is to be given an opportunity to speak to the investigator and the investigator may collect relevant materials; speak to witnesses; speak to the employee concerned; provide the employee with further particulars of the alleged misconduct and so on.
[102] The investigator will, in relation to each allegation of misconduct, find that the allegation is substantiated or not substantiated. On a finding that an allegation is substantiated the employer is required to consider that information and propose a discipline outcome.
[103] Clause 21.11 requires that an employee is to be given an opportunity to respond to the findings of an investigator and the proposed disciplinary action prior to determining the disciplinary outcome. The purpose of this clause must be to allow the employee concerned to effect any final conclusion as to whether the misconduct did occur and what, if any, penalty should be imposed.
[104] Clause 21.12(a) specifically provides that:
21.12 Determination of discipline outcome
(a) The Employer will consider:
(i) the findings of the investigator; and
(ii) any recommendations as to the appropriate disciplinary outcome; and
(iii) any response of the Employee (including any admission of misconduct under clause 21.9); and
(iv) any prior disciplinary outcomes,
and then determine the discipline outcome that is to apply to the Employee. The discipline outcome must not be disproportionate to the seriousness of the matter.
[105] Clause 21.12(b) sets out the proposed disciplinary outcomes ranging from no action to termination of employment.
[106] The employer is required to advise the employee in writing of the disciplinary outcome (clause 21.12(c)).
[107] Clause 21.14 allows a dispute arising under the clause to be dealt with in accordance with the dispute settling procedure of the 2016 Agreement in limited circumstances. Clause 21.14 states:
21.14 Disputes
Any dispute arising under this clause may only be dealt with in accordance with clause 12 (Resolution of Disputes) when any of the following are placed on the Employee’s personnel file in accordance with this clause (this may include whether clause 21.6 has been complied with in the Employer coming to a decision):
(a) a record of formal counselling;
(b) a formal written warning;
(c) a final written warning; or
(d) a record of discipline outcome.
[108] It seems to me that an employee is subject to proven misconduct under clause 21 of the 2016 Agreement when the employer has completed a consideration of the response of the employee under clause 21.11. This step can be said to have been completed when the employer determines the discipline outcome under clause 21.12(a) (which I take as a different and distinct step to clause 21.12(c)). For the misconduct to have been “proven” any earlier than this stage makes the opportunity of the employee to respond to the findings under clause 21.11 otiose. The invitation to respond to findings must be, from a procedural fairness perspective, an opportunity to put material and/or submissions that might influence the final decision. The misconduct cannot be “proven” in this respect until the decision-maker takes all of the information, including response of the employee, into account. To consider the misconduct proven any earlier would be a denial of procedural fairness.
[109] It is informative that the exception in clause 24.3(g)(iv) does not refer to the completion of any particular, or all, processes under clause 21. Importantly, the exception in clause 24.3(g) does not relate to the completion of any other proceedings that an employee may take in relation to a finding of misconduct and disciplinary outcome. The exception relates to the point at which the misconduct is proven.
[110] A penalty cannot be imposed until a misconduct finding is made – that is an allegation is substantiated. A dispute cannot be instigated until a record of counselling or a written warning or a record of a discipline outcome is placed on a file. This suggests that the misconduct must be proven prior to the discipline action being finally determined and imposed.
[111] For this reason I cannot find that misconduct is proven for the purposes of the exception in clause 24.3(g)(iv) only at the point where the discipline outcome is provided to the employee. Mr Tucker’s submission on this point must be rejected.
[112] While it may appear unusual that the misconduct may be considered proven prior to any appeals or other actions being taken, clause 24.3(g)(iv) is clear – the exception is enlivened when the conduct is proven per clause 21 – not post clause 21 or after appeals from clause 21 but “per clause 21”.
[113] The capacity to impose a penalty on an employee following an investigation into misconduct would have no basis unless the findings in relation to the misconduct had already been made. Those findings could only be made after a consideration of the evidence and a decision as to whether this did, on the balance of probabilities, allow for a decision to be made as to whether the conduct was substantiated (or “proven”) or not. It is only having reached this conclusion that a penalty in relation to the conduct can be considered.
[114] In this case Mr Tucker took action in the Supreme Court of Victoria. He suggests that, as the State gave a voluntary undertaking not to impose any penalty on him pending the hearing of his application, the time when his misconduct was “proven” was 19 July 2019 when the penalty (of termination of employment) was imposed.
[115] For the reasons given above I reject this submission of Mr Tucker. The exception is clause 24.3(g) does not refer to when the processes under clause 21 are exhausted. Had it been the intention that the exception would only come into effect once the final decision on penalty had been decided and given effect, the exception in clause 24.3(g) would be more explicit on this point. It is not, the submissions of Mr Tucker must therefore be rejected.
[116] From this it is clear that I do not accept the submissions of the State that the misconduct is proven when the Investigator, appointed under clause 21 makes his or her findings.
[117] Clause 21.11 entreats the employer, as soon as possible after the Investigator makes their findings, to advise the employee of the findings and proposed penalty. I am satisfied that it is on receipt of the views of the employee (and a consideration of them) that the employer has determined that the misconduct is proven and that some penalty should be imposed in relation to that misconduct.
[118] For these reasons I am satisfied that the misconduct with respect to Mr Tucker was proven at the time the SRO determined the disciplinary outcome as required under clause 21.12(a) of the 2016 Agreement.
Does the exception in clause 24.3(g)(iv) of the 2016 Agreement apply retrospectively?
[119] Mr Tucker submits that the exception to eligibility for progression payments in clause 24.3(g)(iv) can only apply from the time that the misconduct is proven and that this is at the point the employee is advised of the disciplinary outcome under clause 21.12(c) of the 2016 Agreement. Mr Tucker suggests that it would otherwise be unfair for an employee, having received progression payments in good faith, to have this retrospectively recouped, potentially years later, on a finding of misconduct.
[120] The State says that the exception applies to the year in which the misconduct occurred as opposed to the year in which the misconduct is proven. It submits that it would otherwise be unfair that an employee would receive or be excluded from a progression payment based on the timing of findings. It posits the circumstances of two employees engaged in the same misconduct at the same time where the investigation takes longer for one than the other with the employee, the findings in respect of whom are delayed, becoming entitled to a progression payment for this reason only.
[121] The emphasis on the exception granted in clause 24.3(g)(iv) is on the conduct having been proven. This might support a conclusion that the progression payment is therefore barred in the year the finding in relation to the conduct is made. However, to stop there is to ignore the context of clause 24.3 in the 2016 Agreement.
[122] Clause 24 relates to eligibility for progression pay in relation to the just completed performance cycle.
[123] Clause 24.3 tells us that the performance cycle runs for 1 July to 30 June. By clause 24.3(f), a performance review is undertaken at the conclusion of the performance cycle. An employee is eligible for progression pay at the end of the cycle if they meet the requirements of their performance plan for that cycle.
[124] The exceptions to eligibility for performance pay in clause 24.3(g) provide a number of points in time at which the exception is to be determined. Paragraphs (i) and (ii) of clause 24.3(g) provide an exception in relation to certain events at the time the performance review is undertaken; and paragraph (iii) an event being in existence as at 30 June and paragraph (iv) to an event during the course of the performance cycle.
[125] The performance cycle the subject of clause 24.3 is that just completed (i.e. ending 30 June) for which performance is subject to review for the purpose of determining progression payment.
[126] Given that clause 24.3 is in relation to the performance cycle for which progression pay is being considered, the performance cycle in clause 24.3(g)(iv) must be that same cycle. There is no other performance cycle under consideration.
[127] If it was intended that the exception in clause 24.3(g)(iv) should be in relation to proven misconduct at the explicit time the performance review was undertaken then, given the use of considered and differing terms in the exceptions in clause 24.3(g) it could reasonably be expected that a specific term would have been used. For example the exceptions in clause 24.3(g)(i) and (ii) apply at the time the review is undertaken.
[128] Whilst I acknowledge Mr Tucker’s concern that my conclusion as to in which year progression payment is barred may lead to an “over payment” to an employee that is a consequence which needs to be managed by the employer. That it may result in such an overpayment is no reason to conclude other than I have.
Is an employee eligible for progression pay if suspended?
[129] Mr Tucker was suspended from duty on 9 June 2017 until the termination of his employment on 19 July 2019.
[130] On 2 March 2018, in Supreme Court proceedings, undertakings were recorded whereby Mr Tucker provided undertakings as to damages and the State gave an undertaking not to finalise the proposed disciplinary outcomes set out in correspondence to Mr Tucker of 25 October 2017 and 7 February 2018. 26
[131] Mr Tucker submits that, for the period of his suspension, he was ready and available to work. Further, he submits that he had raised this issue with the SRO to no avail.
[132] Mr Tucker also submits that there is no “carve out” for suspended employees from the eligibility for participation in, and the benefits of, progression pay.
[133] The State concedes that “suspension” is not a specific ground of ineligibility for progression pay in clause 24. However, it submits that Mr Tucker did not qualify for progression pay in the 2018 and 2019 performance cycle because he did not perform any work against which his performance could be assessed. That State submits that if Mr Tucker’s ineligibility is a consequence of his suspension for alleged misconduct, subsequently substantiated, it is likely the draftspersons of the clause intended that to be so.
[134] The State also submits that, although Mr Tucker was not ineligible to receive progression pay under clause 24.3(g) in the years during which he was suspended, that does not mean that he is by default entitled to progression pay. Rather, it says he remains eligible, but by virtue of his suspension, he could not satisfy any requirements for progression.
[135] To be eligible for progression an employee is required to participate in the development of a performance plan, expect formal and informal feedback and participate in performance discussions and review, including the end of cycle review.
[136] Eligibility for progression pay must be considered as more than just an absence of ineligibility. There are things that must be done to be eligible for progression pay.
[137] Mr Tucker was stood down in accordance with clause 21.7(a)(v) of the 2016 Agreement on the basis that it was alleged he had engaged in misconduct. I am not aware that Mr Tucker has, at any stage, sought to challenge that stand-down.
[138] Whilst Mr Tucker says that he was ready and available to work, he was not at work nor was he required to engage in any work in return for his salary during the stand down period. In this respect it is not clear how Mr Tucker could have participated in performance development such that he could meet the requirements of a performance plan. Whilst it may be that Mr Tucker could have reached some agreement with the SRO in relation to development he could undertake whilst stood down (for example further study or professional development) it is not apparent that this could meet the requirements specified in clause 24.2(e) of the 2016 Agreement. Clause 24.2 (e) states that central to progression is the need to determine “what should, and can, be delivered to warrant progression through a combination of increasing capability, productivity, performance and professionalism” at a time when he was being investigated for misconduct.
[139] The Agreement neither supports nor detracts from either view put to me. On balance however, it is difficult to see how an employee, suspended from work, could meet the standards of professionalism, capability and productivity which form the core of progression requirements, particularly in circumstances where Mr Tucker’s stand down was on the grounds of misconduct subsequently substantiated.
[140] Whilst there may be some limited opportunity for a qualified professional to meet some criteria through professional development this would not be the case for employees not working in areas or professions that lend themselves to such opportunity. A differential application of the provisions based on job roles would not, on its face, lead to consistent application of the 2016 Agreement.
[141] On balance I cannot see that an employee could participate in progression whilst suspended. This is a matter that may well need to be addressed where an employee is reinstated following an investigation with no finding of misconduct, but a lack of a process for this does not detract from my finding.
[142] This finding is only relevant in the period leading up to the undertaking being given in the Supreme Court as set out above. It is clear that the undertaking of the State was limited to not to finalising the discipline outcome on Mr Tucker. The undertaking was not to hold him in a position that he would otherwise have been in had his employment not been suspended. I do not see how the progression system could possibly be applied in such circumstances.
[143] For this reason I do not consider that Mr Tucker was able to meet the eligibility requirements to participate in progression from the time he was stood down with pay in 2017.
[144] For the reasons given above I am satisfied that misconduct is proven for the purposes of clause 24.3(g)(iv) at the point in time when the employer determines the discipline outcome pursuant to clause 21.12(a) of the 2016 Agreement.
[145] Further, I am satisfied that clause 24.3(g)(iv) operates such that, where there is proven misconduct, the employee is ineligible for progression payment in the year the misconduct occurs. Whilst I accept that this may result in an employee receiving a progression payment for which they are otherwise not entitled this does not detract from my finding. Any overpayment should be managed in the way such matters are although I would observe that it may be considered unfair to recover such payments made and accepted in good faith.
[146] I am also satisfied that, whilst clause 24.3(g) operates to otherwise deny an employee a progression payment, the remainder of the clause operates to make an employee eligible for progression pay.
[147] To the extent that Mr Tucker was not at work, he was not be eligible for progression pay as he could not participate in those steps necessary to determine a progression plan within the requirement of clause 24.
MERITS
[148] The fourth matter to be determined at this stage of proceedings is if the Commission should admit further evidence as sought by Mr Tucker and/or allow the State to file further evidence in reply to that of Mr Tucker in relation to whether Mr Tucker did engage in misconduct such that he would not be eligible for progression pay in accordance with my findings above. The evidence in question goes to the merits of Mr Tucker’s claim to progression payments. The extent to which that evidence is relevant is affected by my findings above.
[149] After some delay caused by matters in the Supreme Court and Mr Tucker’s request that the progression dispute not be dealt with until the Supreme Court proceedings had concluded, on 22 January 2020 the Commission wrote to the parties and requested:
1. the dates the parties (or Counsel) would not be available for hearing in April 2020;
2. the estimated length of hearing (with the Commission’s estimate being no more than one day); and
3. if either party sought to provide supplementary submissions to those already filed [in 2018] and/or would object to such.
[150] The State responded and advised it did not consider it necessary for the parties to file further submissions.
[151] Mr Tucker responded on 22 January 2020 as follows:
In relation to Commissioner Bissett's questions:
1 I will make myself available for any date in April 2020. If I am not in Melbourne I will seek to appear via phone/video link up.
2. 1 day.
3. I seek leave to file short submissions by end of March 2020 essentially running through each year 2005-2019 (incl) setting out basis relied on by SRO to deny progression and my bullet point submissions in return. I will also very briefly run through jurisdictional issue relevant to the 2005 year (i.e. a dispute was lodged which is preserved in the new EA).
Thank you.
Regards
Toby Tucker
[152] Mr Tucker subsequently amended the error of 2005 to 2015.
[153] As a result of the replies received I issued the following further directions on 24 January 2020:
Thank you for your replies in relation to hearing the final part of this matter.
The following directions are issued in relation to the matter:
1. The Mr Toby Tucker (Applicant) is given leave to file with the Fair Work Commission (Commission) and serve on the State of Victoria (Respondent) further submissions as detailed in his (corrected) correspondence of 23 January 2020 by noon Wednesday 25 March 2020;
2. The Respondent may file with the Commission and serve on the Applicant any submission in reply by noon Wednesday 8 April 2020;
3. The application will be listed for hearing in Melbourne at 10.00 a.m. Wednesday 29 April 2020.
Given the advance notice the Commissioner expects all parties to attend in person.
[154] Thereafter there was an exchange between the parties and my chambers as to whether Mr Tucker could argue that he was entitled to progression pay for the year ending 30 June 2019 (discussed above). As a result of that exchange, on 29 January 2020 my chambers sent an email to parties which stated:
I refer to the below email received from the lawyers for the State of Victoria in the above matter.
The Commissioner has carefully considered the matter raised in that correspondence. She has decided that the issue raised is one that is best addressed in the context of the total dispute currently before the Commission in relation to progression payments.
The Commissioner expects the matter of the extension of the claim to the 2019 financial year be dealt with in submissions and/or evidence in accordance with the directions issued on 24 January 2020.
[155] Arising from the directions issued Mr Tucker filed with the Commission a witness statement and further submission with substantial embedded documents such that it amounted to over 2,700 pages. The documents include:
• the Classification Decision, transcript and materials considered in dealing with that part of the current dispute;
• all submissions and witness statements filed by Mr Tucker in relation to his application pursuant to s.394 of the FW Act for relief from unfair dismissal including statements of third parties;
• submissions of the State and Mr Tucker in relation to the claim of the State in regard to undertakings as to damages given by Mr Tucker in Supreme Court proceedings;
• Correspondence of Mr Tucker to the Premier of Victoria and State Opposition Leader;
• A witness statement which was marked as relating to both this application and Mr Tucker’s unfair dismissal application, dated 25 March 2020 with 230 pages of attachments including transcript from Supreme Court proceedings.
[156] To the extent it might be argued by Mr Tucker that he filed a witness statement and submissions only, the volume of material was incorporated into those documents by hyperlink. There is no indication that Mr Tucker does not seek to rely on all of the material so filed in the matter currently before the Commission.
Objections
State of Victoria
[157] The State seeks a ruling on the admissibility of additional material filed by Mr Tucker in March 2020. Related to that it says is a question as to whether the matter can proceed fairly on the basis of the current material if I determine that Mr Tucker’s further material be admitted.
[158] The State objects on the basis of whether the material filed should be accepted and, separately, the nature of the material filed.
[159] The State submits that to accept the material filed will create an injustice to the State. The State says that, in filing its material in October 2018, it answered the case it was required to meet by Mr Tucker’s evidence and submissions at that time. Mr Tucker now seeks to change that case. The State submits that if the Commission does accept the material filed by Mr Tucker it should be given an opportunity to file a reply to that material.
[160] Specific details of the State’s objections are set out below.
1. Unfair dismissal material – confidentiality and implied Harman undertaking
[161] The State objects to the admission in these proceedings of the materials filed by Mr Tucker in relation to his unfair dismissal application.
[162] The State objects for three reasons. Firstly, it says that there is a confidentiality order on the material that has not been lifted. That confidentiality order was issued by me in separate proceedings following a hearing of the parties. At the conclusion of the hearing I issued my decision:
…In terms of the question of orders for non-publication, it's my intention to grant the orders on an interim basis only. I think that there are some matters in there that require fulsome consideration, and I think that that can be done more appropriately by the Presiding Member, who can hear argument and will have access to all of the materials and the evidence and will be able to make a much better, clearer call on that. I am concerned, and I say this purely on an interim basis, Mr Tucker, the submissions of the respondent raise some issues. I'm not prepared at this point to leave the file potentially open, if I can use that expression, and for that reason I will issue the interim orders in the form sought by the state with respect to paragraphs (a), (b) and (c). 27
[163] Mr Tucker applied to have that Confidentiality Order set aside. This was rejected by Deputy President Young on the grounds that, at the time the application to set aside the Order was made, the unfair dismissal application had not been resolved (either by final settlement or decision) such that the circumstances that pertained when the Order was made remained.
[164] Second, the State submits that the material subject to the Order is subject to an implied Harman undertaking. 28
[165] The State submits that the implied undertaking remains until such time as the materials are received into evidence in open court. This has not occurred as Mr Tucker has entered into settlement discussions of the unfair dismissal application.
[166] Third, the State submits that Mr Tucker has the opportunity to test the fairness of the disciplinary action taken by the State against him in his application for unfair dismissal. Mr Tucker did make an application for relief from unfair dismissal but chose to settle that matter without having the validity of the reason for the dismissal (that is, his conduct at work) tested. It is an abuse of process for him to seek to have what is essentially an unfair dismissal issue ventilated through these proceedings.
[167] The State also objects to the nature of this material. It submits that the material seeks to adduce evidence based on material filed in other proceedings where those witnesses are not being called in these proceedings.
2. The material filed is outside the directions issued by the Commission
[168] The State submits that the permission granted to Mr Tucker was explicit in terms of the material that he could file. The material filed by Mr Tucker extended well beyond the directions issued by the Commission in January 2020. The apparent purpose of the filing of the additional material by Mr Tucker is a collateral attack on the findings of misconduct made some time ago.
3. Mr Tucker has not sought to challenge the findings of misconduct
[169] application for relief from unfair dismissal but chose to settle that matter instead of having the
[170] The State submits that it has, to date, done no more than meet the case as put by Mr Tucker. It submits, in particular, that Mr Tucker has at no stage to date sought to challenge the validity of the findings of misconduct made against him.
[171] The State submits that it specifically raised this in its submissions of October 2018 when it submitted:
In the Applicant’s Submissions and evidence, the Applicant has failed to disclose the various misconduct findings against him – a notable material omission.
The Respondent has queried whether the Applicant, at the hearing, intends to challenge the validity of the misconduct findings in the course of advancing his claims for Progression Pay. To date, the Applicant has not provided a clear response to this enquiry.
Given the above, the Respondent’s evidence and submissions have been prepared on the assumption that the Applicant does not intend to challenge the validity of the misconduct findings against him. The Respondent reserves the right to make further submissions and file further evidence in the event that the Applicant clarifies his position on this issue. [Footnote omitted]
[172] The State submits that one line in the submissions of Mr Tucker where he denies the misconduct is not evidence that goes to the issue. Rather, it submits that Mr Tucker has now sought, in March 2020, to put substantial material before the Commission in support of what he now seeks to argue.
[173] The State submits that it relies on the fact of the misconduct to deny Mr Tucker progression payments in accordance with clause 24 of the 2016 Agreement.
[174] The State also submits that there is also an issue of issue estoppel. It submits that Mr Tucker had sought to attack the investigation and findings in relation to his dismissal in the Supreme Court proceedings and he ought to be estopped from bringing the same attack in the Commission. The State submits that Mr Tucker’s actions give rise to “potential embarrassment for the Commission if it was to reconsider the matter [dealt with by the Supreme Court] and deal with matters that have already been dealt with.” 29
Mr Tucker
[175] Mr Tucker submits that the progression dispute goes to two matters – the interpretation of clause 24 of the 2016 Agreement and then whether there was a valid basis on which the State could hold that he had engaged in misconduct.
[176] Mr Tucker submits that it would be a denial of procedural fairness to not allow him to challenge the basis on which the State has denied him progression pay – that is, the validity of the allegations and the findings with respect to those allegations. Mr Tucker submits that he has directly challenged those findings in his witness statement dated 30 August 2018. 30
[177] Whilst there have been proceedings in other places and an application for unfair dismissal, Mr Tucker submits that there has not been a finding as to credibility of the allegations or findings with respect to the misconduct. In this respect he submits that there can be no “embarrassment” for the Commission in coming to different findings to the Supreme Court or other Commission proceedings as there have been no findings on this issue in the Supreme Court and the unfair dismissal proceedings are subject to settlement negotiations (although Mr Tucker “expressly reserves” his right to reinstate those proceedings 31). Mr Tucker submits that it would be “a vitiating error” to “avoid…the big elephant in the room of whether these allegations have any substance or not.”
[178] Mr Tucker also submits that the basis for the allegations are relevant to the matters currently before the Commission.
[179] Mr Tucker accepts that there were no directions issued that invited the material he filed on 20 March 2020 but submits that the Commission has a broad discretion to accept additional material and the Commission has the power to inform itself as it sees fit.
[180] Of the confidentiality order that exists in relation to the unfair dismissal material filed in these proceedings (which replicates material filed by Mr Tucker in the unfair dismissal proceedings), Mr Tucker submits that it is “perfectly permissible” to have the unfair dismissal material filed in these proceedings as the parties are the same and there is no prejudice to either party. Further, Mr Tucker submits that he would not oppose a confidentiality order on the unfair dismissal material filed in these proceeding should the State make such an application.
[181] Mr Tucker also submits that the confidentiality order “surely wouldn’t apply” to the same party filing the same material before the “same” Commission.
[182] With respect the Harman undertaking Mr Tucker submits that there is no case that suggests such an undertaking applies in the Commission but, in any event, it would not apply to a document he creates himself. Further he submits that such an undertaking could not possibly apply to transcript from his Supreme Court matter and the State has not demonstrated that it does.
[183] Mr Tucker indicated that he would not object for the State to be given the opportunity to file material in reply to that filed by him in March 2020 as long as he is given an opportunity to file material in reply.
Post-hearing communications
[184] In correspondence to the Commission post the hearing of this application Mr Tucker took issue with the submissions of the State on the issue estoppel. In particular, Mr Tucker suggested that the comments of the State were inaccurate. 32
[185] Mr Tucker submits that in the Supreme Court matter Ierodianconou AsJ “expressly denied any analysis of the merits of the allegations and findings” in reaching her decision. Mr Tucker therefore submits that the “State’s attempts to raise a last minute judicial estoppel is entirely baseless.” 33
[186] The State responded to Mr Tucker’s email and said:
1. The State’s case for denying Mr Tucker progression pay for relevant years is premised on the objective fact that findings of misconduct have been made against him.
2. The proceedings before the Supreme Court of Victoria involved an attack by Mr Tucker on the investigative process adopted by the SRO. By virtue of this, the findings made at the conclusion of the investigations were also challenged (because if the process was found to be defective the findings could not be relied upon). The Supreme Court proceedings did not involve consideration of the merits of the allegations or the substance of the investigation or findings.
3. The Supreme Court did not find that the investigative process was defective, and therefore, the findings made by the State remain undisturbed.
4. In his unfair dismissal claim, Mr Tucker had the opportunity to challenge both the investigative process, and the merits of the allegations and findings, if he wished to. Instead, Mr Tucker chose to agree to settle that proceeding, thereby leaving the findings made by the SRO undisturbed.
5. Because those findings of misconduct have not been disturbed, despite that being a possibility in both the Supreme Court proceedings and the unfair dismissal proceeding, the State submits that Mr Tucker is estopped from now seeking to challenge the validity of the misconduct findings in the context of the progression pay dispute.
6. To do so would give rise to a risk of inconsistency in findings as between the Supreme Court and the Fair Work Commission and would permit Mr Tucker to litigate in substance his unfair dismissal claim, which he elected to settle. 34
[187] Mr Tucker further responded to the State’s email. He said:
• The Commission is seized with determining whether or not Mr Tucker engaged in misconduct as defined in clause 21.3 the 2016 Agreement;
• The onus rests with the SRO to substantiate if Mr Tucker engaged in that misconduct;
• It is wrong of the State to rely on the objective fact of the making of a finding of misconduct. Such an argument would allow the SRO to “conjure baseless findings of misconduct to terminate and discipline employees”;
• By claiming Mr Tucker is estopped the State “continues to mislead the Commission” in its description of the Supreme Court matter as Mr Tucker did not challenge the findings of the SRO in the Supreme Court and did not seek to have the findings otherwise set aside or quashed. In any event Mr Tucker submits that no issue of estoppel arises from decisions of the Commission;
• It would be a denial of procedural fairness if Mr Tucker was deprived of the opportunity to challenge the SRO’s findings.
[188] Mr Tucker says that no issue of estoppel arises, or could arise, in this matter.
Consideration
Was the material filed in accordance with the leave granted?
[189] The leave granted by the Commission to Mr Tucker in relation to the filing of additional material was limited based on the leave sought. The leave sought by Mr Tucker was to “file short submissions…essentially running through each year [2015]-2019 (incl) setting out basis relied on by SRO to deny progression and my bullet point submissions in return. I will also very briefly run through jurisdictional issue [sic] relevant to the [2015] year...”
[190] Mr Tucker has taken substantial liberty with the leave granted to him. The material is well beyond the permission granted. The submissions filed were not “short” and did not do as he described. The volume of material is, to the extent he seeks to rely on it and it is to be taken into account, counter intuitive to his plea that “this matter [be] determined by the Commission as expeditiously as possible, given the well known maxim: “justice delayed is justice denied” (Tilley v The Queen [2008] HCA 58, [8] per Hayne J).”
[191] It is difficult to disentangle the material filed by Mr Tucker such that I could say what should and should not be accepted except that the material in relation to the 2015 and 2019 progression years, to the extent it is discernible, is accepted. The remainder of the material is not accepted. It was not filed in accordance with the leave granted to Mr Tucker. Mr Tucker has no one to blame for this but himself.
Unfair Dismissal material and the Confidentiality Order
[192] Whilst this material is included in that generally rejected above, I will comment on this material in relation to the Confidentiality Order.
[193] I granted, in sperate proceedings to these, an interim Confidentiality Order on the material filed by Mr Tucker in his application for unfair dismissal. That Order was issued on an interim basis as I was not the member who would preside over the unfair dismissal application. It was appropriate that final argument on the confidentiality of that material be left to the Presiding Member who could “hear argument and…have access to all of the materials” prior to making a decision.
[194] That Order has not yet been lifted. By decision, Deputy President Young declined Mr Tucker’s application to do so. The Deputy President noted that the filed documents subject to the Order had “not been received into evidence, they do not form part of the record of the hearing and the Commission has not ruled on the SRO’s objections to Mr Tucker’s materials.” 35
[195] I do not accept the arguments of Mr Tucker that it is the same parties in this matter as the unfair dismissal matter such that the materials may be used. Mr Tucker could have filed the witness statements and so on that he did file in the unfair dismissal matter in this matter. Had he chosen to do so the appropriate time was August 2018 when he was required to file in relation to the application subject to this decision. He instead chose to wait until 2020 and file the material in his unfair dismissal application. That material is subject to a Confidentiality Order that must mean something, and Mr Tucker’s decision as to when he would file it and in which proceedings must amount to something.
[196] I would also observe that the Commission as presently constituted to deal with the dispute is not the same Commission as constituted to deal with Mr Tucker’s unfair dismissal application.
[197] I am not satisfied that I should accept in this matter the material filed by Mr Tucker in his unfair dismissal application of these reasons.
Denial of misconduct
[198] The State submits that it has prepared its case on the basis that Mr Tucker had not denied the conduct said to have amounted to misconduct. Mr Tucker says he has denied the conduct since filing submissions and evidence in 2018.
[199] In his witness statement filed on 30 August 2018, 36 under the heading of “Observations on ‘Professionalism’ at the SRO”, Mr Tucker gives evidence that:
From on or about October 2015 to present I have been subjected to criticisms from SRO management regarding my alleged “inappropriate” behaviours in the workplace.
I deny that I have engaged in inappropriate behaviour at the SRO.
The SRO alleges that these behaviours infringe the VPS’s “Code of Conduct” and “Public sector Values”. I have been admonished for ‘behaviours’ including:
(a) the ‘tone’ of my written internal legal advices and professional opinions;
(b) taking my tie off in the office when returning from Court;
(c) my wearing of ‘Zara’ brand footwear and woollen jumpers in winter months; and
(d) being observed, on one occasion, having a beer outside SRO core hours at a bar on Bourke St during late December 2015.
Whilst these criticisms appear trivial or ill-founded, they have been used to deny me progression. 37
[200] This is not a denial of the misconduct Mr Tucker is alleged to have engaged in. It is no more than a suggestion that some matters were trivial and unfounded and, presumably should not have been the basis of a denial of progression.
[201] I understand that it is in the material filed on 20 March 2020 where Mr Tucker has provided an expanded attack on the allegations against him and findings of misconduct. Whilst this might be remedied by allowing the State to provide submissions and evidence in reply to that material I am of the view that Mr Tucker should be required to file in accordance with the leave granted and the State should be granted leave to respond to that material.
Supreme Court proceedings
[202] As to the issue estoppel I have considered the outcomes sought by Mr Tucker in the Supreme Court. In that matter I understand that Mr Tucker sought:
• Injunctions prohibiting the State and/or SRO reaching a final decision as to the discipline outcomes in relation to two investigations carried out;
• Declarations that the State and/or SRO breached clauses 21.6, 21.8, 21.10(a) and 21.11(a) of the 2016 Agreement;
• Declarations that the State and/or SRO breached specific provisions of the Public Administration Act 2004 (Vic).
[203] The Supreme Court did not deal with, and specifically rejected that it was dealing with, the merits of the claims of misconduct.
[204] I am not satisfied that the proceedings before me, to the extent they deal with the conduct issue directly, seek to traverse the issues dealt with in the Supreme Court although I recognise a consideration of the merits of Mr Tucker’s application before me is directed to that which he did not achieve in the Supreme Court matter. This final issue I am being asked to determine is whether there were grounds for the finding of misconduct. Should Mr Tucker seek to stray into the area of matters considered by the Supreme Court (for example, procedural issues) he will not be so permitted.
[205] I am not satisfied that Mr Tucker is estopped by the Supreme Court proceedings from pursing the findings of misconduct.
Unfair dismissal proceedings
[206] As mentioned above Mr Tucker has made an application seeking relief from unfair dismissal. That proceeding will determine if the decision to dismiss Mr Tucker was harsh, unjust or unreasonable, taking into account, amongst other things, if there was a valid reason for his dismissal based on his conduct. In order to make such a determination the Commission as constituted in that matter will need to determine, on the basis of the evidence presented, if the misconduct occurred. That matter has yet to be finalised.
[207] In the matter before me Mr Tucker seeks the “opportunity to challenge the SRO’s allegations and findings” with respect to the misconduct.
[208] To undertake such a task I understand I will be asked to consider if the conduct occurred. To that extent I will be asked to determine the same matter before the Presiding Member in the unfair dismissal matter. While I understand that settlement discussions are occurring in the unfair dismissal matter it is still on foot and has not been discontinued such that I can make no assumption as to its outcome.
[209] Mr Tucker therefore has two separate proceedings in the Commission. In each of these the Commission is required to determine (in part) if the conduct Mr Tucker is said to have engaged in did, in fact, occur. Beyond that question the proceedings go on different paths. Whilst the final outcomes differ (was he entitled to progression pay/was he unfairly dismissed) both require a determination of whether the conduct occurred.
[210] On its face it is not appropriate that two members of the Commission be asked to determine the same question in relation to the same factual circumstances. The unfair dismissal application is still on foot. Mr Tucker needs to decide where he wants the issue of the merits of his claim determined – in the unfair dismissal proceedings or in this proceeding but not both. One or the other should be discontinued.
[211] Alternatively, I might accept that the unfair dismissal proceedings continue on the basis of settlement discussions not yet finalised. It is open to me to adjourn further consideration of the merits question currently before me pending the finalisation of that matter which will then allow a consideration as to whether that settlement presents any bar to these proceedings or otherwise resolves the merits question also before me.
[212] This issue has not been put squarely before the parties so each will be given an opportunity to provide submissions on this question.
Utility
[213] A further issue arises given my comments above which I consider requires further attention and submissions of the parties and that is the question of the utility of these proceedings.
[214] On Mr Tucker’s submissions, if I find in his favour, he would be eligible for a payment of approximately $26,700.
[215] As a result of an undertaking as to damages in the Supreme Court matter, Mr Tucker has orders against him for almost $200,000 38 in favour of the State.
[216] Further submissions are sought from the parties as to whether a question of utility arises and, if it does, what should be considered in resolving that question.
[217] It is apparent from my findings and comments in relation to the merits that there are matters yet to be resolved or further considered in conjunction with the finalisation of the merits. I deal with these below.
CONCLUSION
[218] For the reasons and decisions given above I consider that the following course of action is appropriate:
1. The State is to identify all misconduct findings against Mr Tucker that effect progression pay including the date the misconduct occurred and the date of the determination of the discipline outcome under clause 21.12(a) of the 2016 Agreement.
2. The State is to identify year by year the cumulative effect of the misconduct findings and other matters detailed in this decision on progression pay otherwise due.
3. The parties are to provide further submissions in relation to the unfair dismissal proceedings and the utility questions as posed above.
4. Mr Tucker is to file brief submissions and evidence with the Commission in line with the leave previously granted on 24 January 2020. The evidence and submissions should not extend beyond 40 pages in total.
5. The State will be given an opportunity to file material in reply.
6. Submissions and material from parties in relation to items 1, 2, 3 and 4 (Mr Tucker only) are to be filed with the Commission and served on the other party by 4.00pm Monday, 20 July 2020.
7. Reply submissions in relation to the material filed is to be filed with the Commission and served on the other party by 4.00pm Monday, 10 August 2020.
8. Mr Tucker may provide brief reply submissions in relation to the State’s submissions in reply in relation to item 4 by 4.00pm Monday, 24 August 2020.
[219] Upon receipt of this material a further decision will be issued as to the course of the proceedings.
COMMISSIONER
Appearances:
T. Tucker on his own behalf.
J. Forbes, counsel, for the State of Victoria.
Hearing details:
2020.
Melbourne by telephone:
April, 29.
Printed by authority of the Commonwealth Government Printer
<PR720250>
Attachment A
24. Progression within a Value Range
24.1 Progression Steps and Amounts
(a) Within each Value Range of Grades 1 to 4 there are progression steps (expressed salary points) as detailed in the table at Schedule B.
(b) Within Grades 5 to the Senior Technical Specialist Grade there are standard progression amounts as detailed in the table at Schedule B. The progression amounts are expressed in terms of dollars and are common to all Employees within a given Grade/Value Range.
(c) Progression steps or amounts within Value Ranges are not points of defined work value. Progression within the salary structure will not be automatic, consistent with wage fixing principles.
(d) Progression between progression steps or amounts will occur when an Employee is assessed at his or her annual performance review as meeting the “progression criteria” outlined in the Employee’s performance plan.
24.2 Top of Grade or Value Range payment
(a) An Employee at the top of their Grade or Value Range will receive a top of Grade or Value Range payment where the Employee is assessed at their annual performance review as meeting the “progression criteria” outlined in the Employee’s performance plan.
(b) The top of Grade or Value Range payment will be equal to one per cent of the Employee’s salary as at 30 June of the relevant performance cycle.
(c) Top of Grade or Value Range payments will commence from the 2016/17 performance cycle.
24.3 Performance Cycle and Review
(a) The performance cycle is twelve months (1 July to 30 June).
(b) All Employees must participate in the performance development and review process, including in the development of performance plans and conduct of performance discussions and reviews.
(c) The “progression criteria” are to be agreed with each Employee at the start of the performance cycle or upon the Employee’s commencement in a role. The “progression criteria” may be adjusted by agreement during the performance cycle.
(d) The “progression criteria” for an individual Employee are to be developed using the performance standards outlined in clause 24.4 (Performance Standards).
(e) All Employees can expect informal and formal feedback about their performance throughout the performance cycle with their supervisor or manager.
(f) A performance review is undertaken at the end of each performance cycle. The Employee’s performance against the “progression criteria” is assessed by their supervisor or manager at that time. Employees must meet all of the elements of their individual performance plan to be eligible for progression or a top of Grade or Value Range payment.
(g) An Employee will be eligible to access progression or a top of Grade or Value Range payment, if the Employee has been in his or her role for 3 months or more, except in the following circumstances:
(i) the Employee has been appointed on probation under clause 15.4 and has been in his or her role for less than 6 months at the time the performance review is undertaken;
(ii) the Employee has been appointed to a role with a new Employer and has been in his or her role for less than 6 months at the time the performance review is undertaken;
(iii) the Employee has completed a formal underperformance process or subject to one under clause 20 at 30 June;
(iv) the Employee is subject to proven misconduct as per clause 21 during the course of the performance cycle; or
(v) subject to the terms of clause 8.9 of Schedule C for Community Corrections Practitioners.
(h) Higher duties - Progression payments
(i) Where an Employee has been acting in a higher position for a period of twelve months, the Employee will be eligible for consideration of progression or a top of Grade or Value Range payment for continued performance of the higher duties beyond 12 months.
(ii) In the event an eligible Employee acting in a higher position is progressed to the next progression step/ amount in that higher position, on returning to their substantive position they will be deemed to have progressed to the next progression step/ amount within their substantive Grade (if applicable).
24.4 Performance Standards
(a) The performance standards detailed below may be weighted and combined, appropriate to the role, to make up an individual Employee’s “progression criteria”.
(b) Performance standards for all Grades are as follows:
(i) achieving the performance targets;
(ii) demonstrating public sector values and behaviours; and
(iii) applying learning and development.
(c) Management should facilitate an individual Employee’s ability to undertake appropriate learning and development. An individual Employee must actively pursue appropriate learning and development to meet their performance standard.
(d) An Employee will not be disadvantaged where learning and development opportunities are not available. It is acknowledged that within Grades 1 to 4 the progression criteria will not be as onerous as those which will be required for Grades 5 to Senior Technical Specialist. Whilst Grades 3 and 4 are clearly seen as transition points to higher levels of management within the structure and carry additional responsibility, this does not mean work at all lower levels will not be important and demanding. However, it is expected that in setting agreed progression criteria the overwhelming majority of persons within Grades 1 to 4 will achieve the objectives and should move through the salary points. This is to be contrasted with persons in Grades 5 to Senior Technical Specialist. In these Grades agreed objectives will include measures of excellence and skill acquisition commensurate with the high level of responsibility. It is expected that progression at these levels will be both more challenging and difficult to achieve.
(e) Central to progression is the need for supervisors and managers, in consultation with Employees, to determine what should, and can, be delivered to warrant progression through a combination of increasing capability, productivity, performance and professionalism. This interaction between managers and Employees gives authority and integrity to the structure and its sustainability in the long term.
1 [2019] FWC 3896.
2 AE418873.
3 Tucker v State of Victoria [2019] VSC 420.
4 References to clause numbers will be to clauses in the 2016 Agreement unless otherwise stated.
5 See generally transcript, 29 April 2020, PN10-25, 29-30.
6 Exhibit A2, attachment TT29.
7 Exhibit R2, attachment PM34.
8 Exhibit R4, paragraphs 20-21.
9 Exhibit A2, attachment TT29.
10 Exhibit R2, attachment PM34.
11 Exhibit R4, attachment DSH24.
12 Macquarie Dictionary online. Accessed 20 May 2020.
13 [2018] FWC 4305.
14 [2019] FWC 4265.
15 [2018] FWC 212.
16 AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [23].
17 Ibid [47].
18 MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [19], [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884.
19 MUA v Australian Plant Services Pty Ltd PR908236; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [21]-[22].
20 United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20].
21 [2017] FWCFB 269.
22 PR974301.
23 [2018] FWC 212 at [45]-[46].
24 Victorian Public Service Enterprise Agreement 2016, clause 24.3(g)(iv).
25 Mr Tuckers submissions, 25 March 2020, paragraph 23-26.
26 See Tucker v State of Victoria (Undertaking as to Damages) [2020] VSC 121, [3]-[4].
27 Transcript of interim orders hearing, quoted in Tucker v State of Victoria (State Revenue Office)[2020] FWC 2593 at [24].
28 Home Office v Harman [1983] 1 AC 280.
29 Transcript, 29 April 2020, PN375.
30 Exhibit A2.
31 Transcript, PN398.
32 Email of Mr Tucker to the Fair Work Commission dated Tuesday, 12 May 2020.
33 Email of Mr Tucker to the Fair Work Commission dated Friday, 8 May 2020.
34 Email of the State to the Fair Work Commission dated Monday, 11 May 2020.
35 [2020] FWC 2593, [26].
36 Exhibit A2.
37 Exhibit A2, paragraph 227-230.
38 [2020] VSC 121, [135].
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