United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board

[2015] FWC 3263

[2015] FWC 3263

The attached document replaces the document previously issued with the above code on 13 May 2015.

In paragraph [47] of the decision, the matter number referred to in the proposed wording of the order to be issued should read C2015/2572, not C2015/2527.

Associate to Commissioner Wilson

13 May 2015

[2015] FWC 3263

FAIR WORK COMMISSION

DECISION

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

United Firefighters' Union of Australia
v
Metropolitan Fire & Emergency Services Board
(C2015/2572)

COMMISSIONER WILSON DARWIN, 13 MAY 2015

Application to deal with a dispute; disciplinary proceedings under an enterprise agreement; request for an interim order

[1] The United Firefighters’ Union of Australia (UFU) has filed two applications in the Fair Work Commission substantially relating to the same subject matters. The first, C2015/2306, was commenced on 30 March 2015 and the second, C2015/2572 was commenced on 17 April 2015. Both matters relate to disciplinary proceedings being taken against the same employee by the Metropolitan Fire and Emergency Services Board (MFB) pursuant to the provisions of the Metropolitan Fire Brigades Act 1958 (Vic) (MFB Act). The employee is referred to throughout this decision as Employee E.

[2] Each application refers to potential breaches of the Metropolitan Fire and Emergency Services Board and United Firefighters Union Operational Staff Agreement 2010 (the Agreement) and is an application pursuant to s.739 of the Fair Work Act 2009 (the FW Act) for the Commission to deal with a dispute arising under the Agreement. The two matters referred to have been the subject of conciliation conferences before me held respectively on 31 March 2015 and 4 May 2015.

[3] The UFU has indicated that the matter on which it seeks to proceed is the second application that was filed, namely C2015/2572, in which the following relief is sought;

“The assistance of the Commission in resolving the dispute via conferences and conciliation.

Further, that there be an order made that the MFB not further pursue disciplinary procedures in relation to [name redacted] before the delegate but in lieu thereof pursue same before the Commission.”

[4] In a request to the Commission on 11 May 2014, the UFU sought an urgent hearing and determination of the question of whether the MFB was precluded from obtaining orders in the nature of termination in the disciplinary proceeding on the basis that such relief would be inconsistent with clause 27 of the Agreement. After consideration of the Applicant’s request the Commission determined to convene a hearing at short notice for that purpose.

[5] The original matter number C2015/2306 is the subject of a Confidentiality Order from the Commission, made by me on 1 April 2015. For the reason that the second matter, C2015/2572, relates to the same subject material, a Confidentiality Order will be issued dealing with that application as well.

[6] In the course of the hearing that preceded this decision, the parties made submissions to me regarding whether this decision should also be confidential. I have had regard to those submissions and have decided the entirety of this decision will be public. I have made this decision for the reason that the matter relates to the implementation of an enterprise agreement applying to many people, and not just one individual, and that there is a public interest in ensuring that the work of the Commission is undertaken, so far as is possible, publicly. Even so, the decision will not name the employee involved, or otherwise identify him. For the avoidance of doubt, the publication of this decision is exempt from the Confidentiality Orders made in matter numbers C2015/2306 and C2105/2573.

[7] The hearing in this matter clarified that the UFU’s purpose in requesting an urgent hearing was that it seeks an interim order from the Commission, pursuant to the provisions of s.589 of the FW Act, which enables the Commission to make an interim decision in relation to a matter before it. The matter progressed as a request by the UFU for such orders, with the focus of submissions on the questions of the balance of convenience for the issuing of interim orders, together with the likely prospects of success for Employee E and the UFU upon a full hearing of the application. Counsel for both parties submitted that the orders sought by the UFU were within the Commission’s jurisdiction to make.

[8] The UFU proposed the Commission make the following Draft Order;

“1. Until determination of the Applicant’s disputes in matters C2015/2306 and C2015/2527, the Respondent take no further steps in the current disciplinary proceedings commenced under the Metropolitan Fire Brigades Act 1958 against [name redacted] in so far as those steps involve the termination or proposed termination of the employment of [name redacted].”

[9] The application is substantively an application under s.739 of the FW Act, which provides for the FWC to deal with a dispute if a term such as clause 19 of the Agreement requires or allows such dealing. Subsection 739(6) requires that the FWC may only deal with a dispute on application by a party to the dispute, which threshold is met by the UFU’s application. In addition, s.739(3) requires the FWC not exercise any powers limited by the Dispute Resolution Procedure; and s.739(4) provides the FWC may arbitrate the dispute in accordance with the term if the parties agreed that such may be done. Subsection 739(5) provides the FWC must not make a decision that is inconsistent either with the FW Act or with the Agreement.

[10] The circumstances surrounding this matter include that in late 2014 and early 2015, the conduct of Employee E was investigated by the MFB, with the result being that he was charged with alleged breaches of the MFB Act. The factual material before me does not canvass the detail of the allegations made against Employee E, other than they relate to allegations he “forwarded pornographic, racist and otherwise inappropriate emails”. I have limited material before me about the investigation that was conducted; the decision to lay charges; or the charges themselves. Such material as I do have is set out in the UFU application and a chronology provided by the MFB. The surrounding circumstances as set out in the applications suggests the following broad history;

● In about late July 2014 MFB identified inappropriate emails on the MFB email system alleged to have been received and sent by Employee E;

● An investigation was undertaken during August and September 2014;

● Allegations were put to Employee E in September 2014, if not before, that emails in contravention of the MFB’s policies held been found on E’s email account.

● Correspondence referred to in the UFU application alludes to Employee E having been told by the MFB in December 2014 that the emails came to the MFB’s attention “through a routine search of the Brigade’s emails system by the ICT department, and as a result of emails found, further searches were conducted”.

● Also in December 2014, Employee E was advised that the MFB proposed to charge him with breaches of the MFB Act, and was told that a consequence might be dismissal.

● In January 2015, the UFU notified the MFB of a grievance about the investigation and the proposal to lay charges.

● On 23 February 2015 Employee E was charged and informed of the date of a hearing, and that the hearing would be undertaken by a delegate of the MFB’s Chief Executive Officer.

[11] In correspondence from the UFU to the MFB dated 8 January 2015 and contained within the union’s application, the UFU contested whether the MFB had complied with its policies and alleged the MFB had “subverted the entire policy” by not following certain unspecified steps, as well as not affording Employee E procedural fairness. At the time, the UFU put the MFB on notice that it considered its actions to be an “abuse of statutory power”, and alleged a collateral purpose for the MFB in pursuing its investigation, and in particular of the MFB being motivated by a desire to take disciplinary action against Employee E “because of his observations made in an email dated 16 July 2014”. In furtherance of its assistance for its member, the UFU sought in the letter that the MFB provide it with 5 classes of documents.

[12] The same correspondence from the UFU on 8 January 2015 also advised the MFB that the union pressed the circumstance as a grievance under the Agreement, firstly seeking a discussion with the Chief Fire Officer, Mr Rau at “Step 1” of the Agreement’s dispute resolution process, and secondly drawing the MFB’s “attention to the status quo provision of the agreement that the MFB discipline process must not continue while the matter is being resolved”.

[13] In addition to these matters, the UFU application to the Commission advises the union considers the alleged dispute relates to the interaction of the Agreement’s disciplinary and dispute resolution processes with the disciplinary processes under the MFB Act; and whether the Employee E “has been dealt with in a discriminatory way compared with other MFB personnel”.

[14] The MFB Act enables charges to be laid and dealt with by a Delegate of the Chief Executive Officer, whose responsibility includes establishing whether the charges have been established, and if so, making a recommendation to the Chief Executive Officer about the nature of any penalty. My understanding from the limited submissions that have been made on the subject is that under the MFB Act it is the Chief Executive Officer who has the responsibility of deciding whether the recommendation is to be adopted or not.

[15] The parties submit that a Delegate has been so appointed, and is due to hear the substance of the charges commencing on 13 May 2015. Neither the terms of the delegation, the charges that have been laid, or any evidence pertaining to them have been provided to me, save for some transcript from an early stage of the proceedings and a decision issued by the Delegate on 7 May 2015 in which he determined not to recuse himself from hearing the matter for reason of apprehended bias.

[16] Notwithstanding the UFU’s criticisms of the Delegate or the disciplinary proceeding he is about to conduct, including that they sought the Delegate recuse himself on the ground of apprehended bias and adjourn the disciplinary proceedings to allow agitation of this application before the Commission, there is nothing before me that would allow a finding that the disciplinary proceedings will not be conducted fairly or properly, or otherwise in a manner inconsistent with the MFB Act.

[17] At the core of the UFU’s application to the Commission is the allegation that the MFB has not complied with certain parts of the Agreement in determining that the disciplinary proceedings under the MFB Act should continue. In particular, the submission is made that the MFB has not complied with what is said to be the interoperability of the processes allowed for in the undertaking of disciplinary matters under the MFB Act and that are provided for in the Agreement in clauses 26 (Counselling and Discipline) and 27 (Termination of Employment). In particular, the UFU argue that the collective effect of the Agreement’s provisions with the MFB Act is to provide a disciplinary “code” that binds the MFB and which cannot be satisfied through following the MFB Act alone. It would be these matters that would be the focus of a full hearing of the UFU’s application to the Commission pursuant to s.739 of the Act.

[18] Clause 26 sets out a range of procedures relating to the counselling, discipline and termination of employees. Importantly it provides that the Agreement applies to those matters “whether or not any other instrument (including State legislation) also purports to apply to counselling and discipline outcomes”. It also requires the parties, within 6 months of approval of the agreement, to have developed the Employee Code of Conduct, also referred to in cl.27. Since an Employee Code of Conduct has not been developed, the Agreement provides that any counselling or discipline of an employee shall be in accordance with the MFB Act and the terms of the Agreement.

[19] Clause 26 is set out below in full (other than for the last sub-clause, cl.26.6, which is not relevant to the determination of this matter);

“26. COUNSELLING AND DISCIPLINE

26.1. This agreement applies to matters relating to the counselling, discipline and termination of employees, whether or not any other instrument (including State legislation) also purports to apply to counselling and discipline outcomes.

26.2. Within the first 6 months of this agreement, the parties will develop an Employee Code of Conduct that deals with counselling and discipline outcomes. Until that Code of Conduct is agreed, any counselling or discipline shall be in accordance with the Metropolitan Fire Brigades Act 1958 and the terms of this agreement.

26.3. Once the Code of Conduct has been developed and agreed, any counselling or discipline of an employee shall be dealt with in accordance with the Employee Code of Conduct. No counselling or discipline of an employee, including an adverse report, and whether for reasons to do with conduct or performance, may occur until the Code of Conduct has been followed and been complied with.

26.4. The reference to counselling or discipline outcomes of employees in this clause includes the counselling and discipline outcomes for a specific employee.

26.5. To avoid doubt nothing in this clause or in the code of conduct shall have the effect of altering the minimum employment period for access to unfair dismissal protection or reduce in any way the rights of an employee to unfair dismissal protection contrary to Section 194(c) and (d) of the Fair Work Act 2009.

26.6. Adverse Reports

[this part of the clause has been omitted].”

[20] The operative parts of cl.26 for the purposes of this decision include that the Agreement applies to counselling, discipline and termination of employees, and that counselling and discipline of employees shall be in accord with the MFB Act and the terms of the Agreement.

[21] The UFU argue that the final part of cl.26.2, which provides that until the Code of Conduct is agreed, “any counselling or discipline shall be in accordance with the Metropolitan Fire Brigades Act 1958 and the terms of this agreement” (added emphasis) is particularly important to the disposition of this matter. The union submitted that there is a long history of dispute between the parties about the interaction of the disciplinary procedures provided for in the Agreement and that provided in the MFB Act. In that regard, the union pointed to a decision of the Federal Court in 2003, in which the dispute was apparent. In the matter, United Firefighters' Union of Australia & Ors v Metropolitan Fire and Emergency Services Board & Ors, 1 Goldberg J explicitly referred to such interaction, albeit under different Agreement provisions.2 The UFU submits that the terms now in the Agreement, approved in 2011, were an endeavour by the parties to move beyond the historical disputes. I have insufficient material before me at present to find that this was or was not the case.

[22] Clause 27 sets out a scheme of procedures, notifications and payments relating to the dismissal of an employee. Only the first part of the clause was the subject of submissions, and that part provides as follows;

“27. TERMINATION OF EMPLOYMENT

27.1. An employee’s employment may not be terminated unless:

27.1.1. the Employee Code of Conduct has been complied with in accordance with clause 26.3;

27.1.2. the employee and the union have been notified that the employer intends to terminate an employee’s employment; and

27.1.3. any dispute notified by the employee or the union has been resolved.

… 27.2 – 27.4.1 omitted”

[23] Clause 27 is relevant to these proceedings since it requires that an employee’s employment may not be terminated unless the “Employee Code of Conduct” provided for in cl.26.3 has been complied with. While termination might be anticipated as a product of the hearing under the MFB Act, Employee E has not yet been dismissed or notified of a dismissal.

[24] The product of these provisions, as I understand the UFU submissions, is that while the MFB Act contains explicit provisions for the investigation of allegations of conduct breaches and then the laying and determination of charges, the current and ongoing implementation of the MFB Act is that it sits within the disciplinary “code” now provided for by the Agreement. Part of that code is the MFB Act; however the code extends beyond the legislation. It might have included what could have been contained within the Employee Code of Conduct, if one was ever agreed. In the absence of the Employee Code of Conduct provided for in cl.26.2 and cl.26.3, the disciplinary “code” extends to include the commitment provided for in c.27.1 that no termination take place until the UFU has been notified that the MFB intends to terminate an employee’s employment and any dispute notified by the employee or the union has been resolved. In any case, the “code” extends to include the right of an employee to raise a dispute under the Agreement’s dispute resolution provision.

[25] I understand the UFU to argue that collectively these matters combine to form a body of rights, and potentially obligations, of an employee notified of disciplinary action or impending dismissal. Such rights and obligations are not drawn solely from the MFB Act, nor are they drawn entirely from the Agreement.

[26] Clause 19 of the Agreement provides a comprehensive dispute resolution process; applying to all matters arising under the Agreement, which is defined to include those matters expressly provided in the agreement; all matters pertaining to the employment relationship, whether or not expressly provided for; and all matters pertaining to the relationship between the MFB and the UFU, again whether or not expressly provided for in the agreement. The clause provides a process by which such matters, or grievances, may be raised, progressed and hopefully settled at successively higher levels of engagement within the MFB and then the Commission. The Commission is authorised to use all its powers in conciliation and arbitration to settle disputes that arise, and a decision of the Commission may be appealed.

[27] The clause also provides a continuation of work procedure, to the effect that while the procedure referred to above is “being followed”, “work must continue and the status quo must apply in accordance with the existing situation or practice that existed immediately prior to the subject matter of the grievance or dispute occurring”.

[28] The UFU argues that it apprehends a clear risk of injury or damage to Employee E if the disciplinary proceeding under the MFB Act continues in the way that it has been formed and framed so far. The union argued that there would be a substantial likelihood, although not one that rises to the point of inevitability, of Employee E’s dismissal following from the proceedings. Those proceedings are not likely to be lengthy; they are set for a further day of hearing on 13 May and while they might take another day or so, a decision can be expected quickly. The union’s apprehension stems, it appears, from several aspects of the proceedings. The UFU is concerned about the penalty the MFB seeks from the Delegate in the event the charges are proved and that the MFB is arguing strongly and unambiguously that the evidence leads to the penalty of dismissal. The UFU also fears that such penalty as determined would be swiftly implemented by the MFB without further consideration. The dispute notification by the UFU also refers to questions of the MFB’s motives in commencing an investigation and pursuing it to disciplinary charges, and indicates that the union considers the MFB has dealt with Employee E in a discriminatory way compared with other employees.

[29] While the UFU has obvious concerns about the format and conduct of the disciplinary hearing under the MFB Act, it is presently unclear what the union says would need to be changed for it to be satisfied of a fair hearing for Employee E. Much of what the union puts on the subject gives the impression that it and Employee E resist any hearing of the charges, no matter how fair the process.

[30] For its part, the MFB argue that the processes of the MFB Act are clear as well as being fair. Employees who are the subject of hearings under that Act are entitled to be represented by a lawyer and may cross-examine witnesses and provide submissions. The Act provides for rights of appeal, which is by way of re-hearing. The conjunction of the MFB Act with the undertaking given by the MFB in the hearing that it would not move to implement the recommendation of the Delegate within 14 days of receiving it, together with the content of the Agreement, mean that Employee E will have a fair hearing. He has been on notice about the Delegate’s hearing for some time, and chose not to attend the MFB Act hearing for reasons of his own. The submission is made, in effect, that the rights and obligations of the MFB Act can co-exist with those that stem from the Agreement; and there is nothing in the Agreement that would warrant an intervention by the Commission of the type proposed by the UFU.

[31] Counsel for both parties, Mr R Kenzie QC for the UFU, and Mr R Niall QC for the MFB, submitted that there is no jurisdictional impediment to the Commission in making the orders sought by the UFU, even though the consequential effect of granting the order sought by the Applicant would be to halt, at least temporarily, a proceeding established under another Act. The nature of these proceedings, being an application for interim orders pursuant to s.589 of the FW Act, leads me to rely upon such assurances in the absence of the greater argument that could be expected in a full hearing. Accordingly, I accept there is jurisdiction to make the order sought.

[32] Both Counsel submitted that the decision to be made by the Commission requires having regard to the balance of convenience of the parties, together with regard to the strength of the employee’s case (as the one who seeks the order).

[33] In relation to the MFB, granting the order will stymie a proceeding that has been on foot since inquiries were first made in July last year, and which has been the subject of charges under the MFB Act since February 2015. There is no doubt that such result will be prejudicial to the endeavours of the MFB to implement its workplace behaviour policy, and to hold to account a person it considers to have engaged in unacceptable activities. It may well be that granting the order does not just postpone the MFB Act proceedings, but end them. The Delegate is, on the basis of the content of his 7 May 2015 decision, plainly frustrated at what has occurred to that date, and may chose to no longer be involved. The MFB may well take the view that progressing the action after the grant of an order by the Commission is not worth the bother.

[34] However, those decisions, and others that are foreseeable, are decisions within the province of the MFB and would likely be reactions to the grant of an order, rather than the actual product of an order. The order might halt the proceeding subject to a full hearing of the UFU’s application, but will not, as an interim order, permanently stop or damage the proceeding. It is not argued that evidence that is presently available will no longer be able to be brought forward, or that there is a limitation on the time in which an action may be brought under the MFB Act.

[35] In relation to Employee E, the effects of not granting the order sought by the UFU include that he will be called to defend the charges. While potentially prejudicial to the employee, there is no question that such eventuality is in the MFB’s interest, and most likely the interests of the Victorian public. However, with the need to defend the charges comes the uncertainty about whether those matters have been formulated properly and fairly and whether the proceedings will allow a fair defence to be put forward. Counsel for the UFU claim the format of the proceedings will not allow a fair defence, whereas Counsel for the MFB argues such problem is not present.

[36] Analysis of the material before the Commission shows at least several concerns that might be conceivably held about the conduct of the MFB Act hearing that are, or may well be, connected with a capacity to raise a dispute under the Agreement, together with the potential that, left unresolved, Employee E’s interests may be prejudiced. These include the desire to be afforded procedural fairness in the investigation of his conduct and the hearing of the consequential charges under the MFB Act; the desire on the part of the employee and the UFU to be provided with additional information about the allegations and their genesis and the investigation that was conducted; and the concern on Employee E’s part and that of the UFU that the MFB may not have been consistent in its actions or decision-making about either the investigation of the employee’s conduct or what should follow.

[37] Although the Commission does not yet have the benefit of information about what Employee E or the UFU would seek in a full hearing of the matter, it is likely these issues, or matters similar to them, would be central to the argument. Each, if granted on full argument, has the potential to assist Employee E, or to at least not make his situation any worse.

[38] A decision on the part of the Commission to not grant the order sought by the UFU will not assist Employee E. The processes that are presently in train can be expected to conclude, and likely soon and before a full hearing of the UFU application. If that is the case, and the UFU Counsel is correct and Employee E is dismissed, any decision on the part of the Commission after a full hearing that is in his favour will be an ultimately unhelpful decision, since by that time he will have been found to have breached the MFB Act and dismissed (noting however that an appeal may well still be on foot).

[39] Consideration of these matters leads me to conclude that the balance of convenience resolves in favour of Employee E. His prejudice would be personal and enduring, in comparison with that of the MFB, which would likely be temporary and not irretrievable.

[40] It is also necessary to take into account the likely prospects of success for the employee if an interim order were to be granted. Such prospects divide into two parts – the likelihood of success for Employee E in defending the charges under the MFB Act, as well as the likelihood of success in persuading the Commission that the Agreement has not been complied with in relation to the disciplinary procedures it establishes.

[41] I have no meaningful capacity to determine the question in the first category, since I do not know either the charges that have been brought or the nature or strength of the evidence that will be brought to the MFB Act hearing. I also do not know what defence, if any, will be put forward by Employee E, if he attends to defend the charges. While this situation is an unusual one for a decision maker considering the making of an interim decision, it is the situation I face. Other than the oral arguments of the Counsel that their respective clients have the strongest case, I have no material before me of any standard that would allow a weighing of Employee E’s case. As a result, in the absence of any or sufficient material on the subject, I make no findings about the strength of Employee E’s case in the MFB Act hearing.

[42] In relation to the question of the strength of Employee E’s case, and that of the UFU, in the s.739 proceedings, it appears that there is at least an arguable case.

[43] I referred to above, in the context of analysis of the question of balance of convenience, that there were at least several concerns that might be held about the conduct of the MFB Act hearing that are, or may well be, connected with a capacity to raise a dispute under the Agreement, together with the potential that left unresolved his interests would be prejudiced. While I make no findings about those matters, and am yet to see what evidence may be brought forward on the subject, the Agreement is quite specific in cl.26.2 that counselling or discipline shall be in accordance with the MFB Act and the terms of the Agreement. Similarly cl.27.1 is plain that an intention to terminate may not be turned into a termination until any dispute notified by the employee or the UFU has been resolved.

[44] Those provisions plainly have work to do, and within the context of the counselling and disciplining of the employee concerned, it is an unlikely circumstance that the proper construction of the Agreement is that the MFB Act stands starkly independent to the Agreement. Subject obviously to the particularisation by the UFU and Employee E of their case on these subjects, I consider there is at least an arguable case that the provisions of the MFB Act and the Agreement combine to be a code in relation to counselling, discipline and termination of employees. I consider that case to extend to an argument that the framing and conduct of the matter under the MFB Act could well be influenced by agreement reached as a product of the Agreement’s dispute resolution procedures, or the outcome of proceedings under the FW Act.

[45] Taken together, I find that the balance of convenience for the grant of an interim order as sought by the UFU favours the employee, and that he has at least an arguable case that the rights conferred on him by the enterprise agreement in relation to the framing and conduct of the MFB Act disciplinary hearing have not been sufficiently followed.

[46] I propose therefore to grant an interim order, being satisfied it is appropriate to do so, and that the making of such order is within the Commission’s jurisdiction.

[47] The UFU’s proposed draft order is set out above. While the MFB argued against the form of the order, in the event the Commission held against the Respondent, it did not argue the form of order was unworkable, or that it would not achieve the purpose identified by the Applicant. I therefore propose to grant the order substantially as sought by the UFU, with an amendment only in respect of the potential identification of the individual concerned. The order made will be in the following terms and will be issued separately to this decision;

“Until determination of the Applicant’s disputes in matter number C2015/2572, the Respondent take no further steps in the current disciplinary proceedings commenced under the Metropolitan Fire Brigades Act 1958 against the person identified as Employee E in those proceedings in so far as those steps involve the termination or proposed termination of his employment.”

COMMISSIONER

Appearances:

R Kenzie QC, D Langmead and Ms T Sakkas for the Applicant

R Niall QC and C Hartigan for the Respondent

Hearing details:

2015.

Darwin (video link to Melbourne and Sydney):

12 May 2015

 1 [2003] FCA 480

 2   Ibid, at [54]

Printed by authority of the Commonwealth Government Printer

<Price code C >