Toby Tucker v State of Victoria

[2019] FWC 6671

[2019] FWC 6671

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Toby Tucker
v
State of Victoria
(C2017/3152)

COMMISSIONER BISSETT MELBOURNE, 26 SEPTEMBER 2019

Alleged dispute about any matters arising under an enterprise agreement – adjournment of application pending finalisation of proceedings in Supreme Court and/or Commission.

Background

[1] Mr Toby Tucker made an application to the Fair Work Commission (Commission) to deal with a dispute with the State of Victoria (State Revenue Officer) (State) on 13 June 2017 (the dispute). The dispute went to two issues – Mr Tucker’s classification and progression payments he says are due to him for the years 2014/15, 2015/16 and 2016/17. The progression dispute rests on the operation of clause 24 of the Victorian Public Service Enterprise Agreement 2016 and relevant predecessor Agreements. That clause, relevant to the progression dispute, provides that an employee is eligible to access progression except (amongst other things) if the employee is subject to proven misconduct during the course of the performance cycle.

[2] At the time of preparation for arbitration of the dispute Mr Tucker informed the Commission on 5 November 2018 that he wished that the progression dispute be held in abeyance pending the determination of a matter subject to proceedings in the Victorian Supreme Court. This request was granted.

[3] On 27 June 2019 I handed down a decision in relation to the classification dispute. 1

[4] On 16 July 2019 the Victorian Supreme Court brought down its judgement in relation to Mr Tucker’s claim in that jurisdiction. 2 That matter was concerned with two investigations that had been undertaken into Mr Tucker’s conduct. Mr Tucker sought injunctions from the Court prohibiting the State of Victoria from imposing disciplinary outcomes in relation to the two sets of allegations against him. The proposed disciplinary action arising from the first allegations was a formal warning and appropriate training. The proposed disciplinary action arising from the second allegations was dismissal.

[5] During the course of the Supreme Court proceedings Mr Tucker gave an undertaking as to damages and the State gave an undertaking that it would not finalise the proposed disciplinary outcomes until the Supreme Court action by Mr Tucker was determined. The Supreme Court ultimately found against Mr Tucker.

[6] Mr Tucker has apparently sought leave to appeal the costs decision of the Supreme Court in relation to the substantive proceedings.

[7] The undertakings as to damages matter is currently before the Supreme Court. It was due to be heard over a number of days commencing on or about 19 September 2019. Mr Tucker applied to have that matter stayed until after the determination of an application for unfair dismissal he currently has before the Commission. The application to stay the damages matter was dismissed 3 and it is now due to be heard on 24, 25 and 30 September and 16 October 2019.

[8] On 19 July 2019 Mr Tucker’s employment was terminated. On 30 July 2019 he made an application to the Commission seeking relief from unfair dismissal. 4 In that matter Mr Tucker challenges both findings of misconduct. The unfair dismissal application is due to be heard by the Commission on 20 – 21 November 2019.

[9] On 7 August 2019 I listed Mr Tucker’s dispute for mention for the purpose of determining if the progression dispute could be progressed. As a result of that mention I determined that the progression dispute would not be further programmed pending the trial in relation to damages. I listed the progression dispute for further mention on 23 September 2019.

Submissions as to programming

[10] At the mention on 23 September 2019 Mr Tucker opposed any further delay in hearing his progression dispute. He said that:

•  The progression dispute involves separate legal issues than the damages trial in the Supreme Court;

•  The Commission will not be bound by any findings in the Supreme Court (and vice versa);

•  Any further delay in dealing with the progression dispute will be prejudicial;

•  It is not appropriate to have one matter held in abeyance to allow another matter to proceed.

[11] Mr Tucker suggested that the progression dispute could be dealt with in two steps. First he suggests that the construction of clause 24.3 of the 2016 Agreement be resolved (which he suggests could be done on the basis of written submissions). Subject to that decision the factual dispute, including the issue of jurisdiction, could be dealt with.

[12] Mr Tucker also advised that the progression dispute now also involves a dispute in relation to the 2017/18 and 2018/19 years.

[13] The State sought that the progression dispute be adjourned until at least the end of 2019. It said so for the following reasons:

•  The trial as to damages in the Supreme Court has not yet been heard;

•  Mr Tucker’s unfair dismissal application should be resolved first as it will deal with whether or not he engaged in the misconduct, the misconduct is foundational to the question of progression and hence should be dealt with first;

•  Mr Tucker had sought (in late 2018) the deferral of the progression dispute pending the hearing in the Supreme Court. That Supreme Court matter is not yet finished as Mr Tucker has sought permission to appeal the costs decision and the undertakings as to damages trial is due to commence on 24 September 2019 but will go through until 16 October on the current scheduled dates.

[14] The State said that I should exercise my discretion to adjourn the progression dispute as there is no urgency in the matter, there is no prejudice to Mr Tucker and that, proportionately, there are greater amounts of money at issue in the Supreme Court proceedings than the progression dispute. Further, it says that it would be a more efficient use of the Commission’s resources to resolve the unfair dismissal first, given its implications, and prior to the progression matter.

[15] The State also submitted that the determination of the construction issue separate to the merits of the progression claim would not be the most efficient approach to the matter.

Consideration

[16] I have decided to adjourn the progression dispute with a further mention to be listed as detailed below. I have reached this decision for the following reasons.

[17] Mr Tucker sought that the progression dispute be held in abeyance pending the finalisation of his application before the Supreme Court. That matter is partially concluded but I consider that the decision in the damages matter may have a bearing on the resolution of the progression dispute.

[18] There are matters that Mr Tucker has put at issue in the unfair dismissal application before the Commission which may have a bearing on the progression dispute. I do not consider it an efficient use of the Commission’s time to have two members considering if conduct occurred in two separate proceedings at about the same time.

[19] Whilst the progression dispute was filed in 2017 the sequence of filing the various applications is a consideration but not determinative as to whether any particular application should be adjourned pending finalisation of another.

[20] I do not consider it an efficient use of the Commission’s time to make some determination as to the construction of the progression provisions of the Agreement is circumstances where the scope of the factual dispute remains unclear.

[21] A multiplicity of proceedings and the pressure this may put on witnesses and parties in preparation is not ideal. It is also not ideal to unduly delay the resolution of Mr Tucker’s progression dispute. I am satisfied however that given the potential effects of other proceedings on the progression dispute, that matter should be held pending finalisation of other proceedings. The Commission will be better placed to decide the progression dispute following the finalisation of the Supreme Court damages trial and/or the Commission unfair dismissal application.

[22] I do not consider there to be any prejudice – beyond a general prejudice – to Mr Tucker by the delay in dealing with the progression dispute.

[23] The progression dispute will therefore be held in abeyance. It will be listed for mention on advice from either party at the earlier of:

1. The decision as to damages in the Supreme Court; or

2. The decision as to the unfair dismissal application in the Commission.

COMMISSIONER

Appearances:

T. Tucker on his own behalf.

J. Forbes of counsel with C. Francis instructing for The State of Victoria.

Hearing details:

2019.

Melbourne.

September 23.

Printed by authority of the Commonwealth Government Printer

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 1   Toby Tucker v State of Victoria[2019] FWC 3896.

 2   Tucker v State of Victoria and anor [2019] VSC 420.

 3   Tucker v State of Victoria (Costs Ruling) [2019] VSC 481.

 4   U2019/8416.