United Voice v Valspar Paint (Australia) Pty Ltd

[2018] FWC 11

[2018] FWC 11

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

United Voice
v
Valspar Paint (Australia) Pty Ltd
(C2017/6934)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 JANUARY 2018

Alleged dispute about any matters arising under the enterprise agreement and the NES [section 186(6)].

[1] United Voice is in dispute with Valspar Paint (Australia) Pty Ltd about the termination of Mr Darren Brodie. The employment of Mr Brodie was covered by the Valspar Group Enterprise Agreement 2016.

[2] United Voice seeks orders that Mr Brodie’s employment be reinstated.

Background

[3] The facts that led to the termination of Mr Brodie’s employment are not in dispute.

[4] On 4 December 2017, Mr Brodie and Mr Shaun O’Dwyer, the site delegate, met with Mr Alex Power, the Human Resources Operations Manager, Mr Joe Thenamkodath, the Site Manager and Ms Lauren Jansink, the Human Resources Manager, to discuss concerns Valspar had with events that had occurred on 20 September 2017 and Mr Brodie’s unauthorised absence from work from 20 September 2017 to 27 November 2017. At that meeting, Mr Brodie was provided with a show cause letter. 1

[5] On 5 December 2017, Mr O’Dwyer spoke to Ms Jansink and asked if the follow up meeting could be delayed so that Mr Matthew Coggin, the United Voice Industrial Officer/Workplace Organiser, could be present as he was interstate. Mr O’Dwyer gave evidence that he told Ms Jansink that the matters raised should be dealt with under the disciplinary procedure as it was not serious misconduct. He told her that “they could have to go into dispute.” Ms Jansink told him she would speak to Mr Power.

[6] On 5 December 2017, Mr Coggin spoke to Mr Power and he told Mr Power that he considered that Valspar was breaching the Agreement.

[7] On 6 December 2017, Mr Jack Kenchington-Evans, an official with UV, wrote to Ms Jansink and advised her that Mr Brodie had not received any previous warnings about his capacity, conduct or work performance in accordance with Appendix F of the Agreement. The letter noted that Mr Brodie had not been accused of serious misconduct. Mr Kenchington-Evans referred to the conversation between Mr Coggin and Mr Power the previous day. The letter then noted that the Agreement did not provide any exemption from the warning procedure in the current circumstances. It advised that if Valspar terminated Mr Brodie’s employment Valspar would breach the Agreement and if this occurred then UV would issue proceedings to enforce the Agreement and would seek penalties for breach. The letter sought Valspar’s agreement to defer the meeting with Mr Brodie until Mr Coggin returned to Victoria. 2

[8] Another meeting took place on 6 December 2017 with Mr Kenchington-Evans and Valspar. Mr O’Dwyer said that Mr Kenchington-Evans went through the matters in the letter and asked questions. Mr Kenchington-Evans asked whether this involved serious misconduct. Mr Power said that Mr Kenchington-Evans raised issues about whether this should involve the warning process set out in the Agreement. It was Mr Power’s evidence that because of what occurred on 20 September 2017 and because Mr Brodie had been on unauthorised leave for two months, the provisions of the Agreement relied upon by Mr Kenchington-Evans did not apply.

[9] On 11 December 2017, a further meeting was held with Mr Brodie, Mr O’Dwyer, Mr Power, Ms Jansink and Mr Thenamkodath. Mr Coggin was also present. At that meeting, Mr Brodie was given a letter of termination which advised that his employment was terminated with notice for misconduct. 3

[10] Mr O’Dwyer gave evidence that he invoked the dispute resolution procedure the day after Mr Brodie was terminated.

[11] On 12 December 2017, Mr Coggin sent Mr Power an email in which he said:

“The delegate on site has evoked the dispute settlement procedure with reference to the disciplinary procedure not being follow, (sic)

The dispute settlement procedure provides that the status quo is to be evoked (sic) once there is a dispute, meaning that the decision that was made to start the dispute is withdrawn. That being the termination.

Could you provide by midday tomorrow if this is to occur. If not the union will ask the Commission to list the matter urgently, and ask for an order to reinstate Darren Brodie in accordance with the agreement while the dispute is being resolved.”

[12] On 14 December 2017, a dispute was notified to the Commission.

The Agreement

[13] The Agreement at clause 46 provides for a disciplinary procedure. It relevantly provides that:

“A delegate may access the disputes settling procedure on any matter which is being addressed through this disciplinary procedure and at that stage the disciplinary procedure will be discontinued.”

[14] The Agreement then sets out a staged disciplinary process with the usual carve out for serious misconduct.

[15] The Agreement at clause 47 provides for a dispute resolution procedure as follows:

47. DISPUTES SETTLEMENT PROCEDURE

a. The parties recognise that there is a need to put in place a procedure that will allow dispute issues to be dealt will in a timely and efficient manner. The parties further recognise that for any dispute resolution procedure to work the parties must approach settlement of the matter in issue in an open manner.

b. It is further recognised by the parties that once the dispute resolution procedure is invoked the status quo will remain until the dispute is settled. The status quo is defined as “the action giving rise to the dispute being withdrawn, and the situation immediately prior to the action giving rise to the dispute applying until the dispute is settled”.

c. At each stage of the dispute resolution procedure the parties involved will have the power to settle the dispute.

d. The following dispute settlement procedure will apply to any matter in issue between Valspar; its employees covered by this Agreement and the Union and will also apply to disputes over the National Employment Standards.

An employee who is a party to the dispute may appoint a representative for the purpose of the procedures in this term. Valspar may also appoint a representative.

i. Where a dispute arises, discussions will first take place between the site Union Delegate and the relevant site Manager or their nominees;

ii. If unresolved, discussions will then take place between a state union official and the Valspar site manager or their nominees;

iii. If still unresolved, discussions will take place between a national union official or nominee and a Senior Manager of Valspar or a nominated representative of Valspar;

iv. If still unresolved, the matter may be referred to Fair Work Commission for determination.

v. Other than a dispute on a genuine safety issue the parties are committed to the resolution of all disputes without interruption to normal work.

e. Where the dispute arises over a summary dismissal, Valspar will arrest the termination and place the employee concerned on paid suspension for up to 10 days while discussions will the Union occur, but only if there is no ban or stoppage of work at site. The employee will not attend the work site while suspended.

The submissions of United Voice

[16] In its application, UV sought an order that Mr Brodie be reinstated until the dispute is resolved in accordance with the Dispute Settlement Procedure.

[17] UV submitted that the issues in question were whether:

1. A dispute was invoked on 5 December 2017 prior to the termination letter given to Mr Brodie;

2. If the dispute was invoked, is clause 46(a) and 47(b) of the Agreement interpreted that the process was to discontinue until the dispute resolved; and

3. If there was a dispute and the clause interpreted that the process was discontinued until the dispute resolved, does that make the termination void?

[18] UV submitted that clause 46 of the Agreement sets out a clear procedure to be followed and it was not followed in this case. Further, UV submitted that as the dispute resolution procedure had been invoked the disciplinary procedure should have been stopped consistently with the Agreement. It submitted that as a result the termination of Mr Brodie’s was void. UV submitted that the Commission should order Valspar to comply with the Agreement and remove the show cause letter until the dispute is resolved. It submitted that the Commission should order that the dismissal is invalid.

The submissions of Valspar

[19] Valspar submitted that the dispute resolution procedure was not invoked until after the dismissal had taken effect and therefore there was no breach of the Agreement and no dispute before the Commission as the dispute resolution procedure cannot apply to an ex-employee.

Consideration

1. Was the disputes procedure invoked prior to the termination of Mr Brodie’s employment?

[20] It is clear that from Mr O’Dwyer’s evidence that he did not invoke the dispute resolution procedure until after Mr Brodie’s employment was terminated. As such, clause 46 had no work to do.

[21] However, I accept UV’s submission that the dispute resolution procedure was invoked prior to the dismissal. Valspar was on notice that there was a dispute about how it was disciplining Mr Brodie. Mr O’Dwyer had made it clear that he considered Mr Brodie’s conduct was not misconduct and the agreement procedure was not being followed. UV made it clear both in correspondence and in the meetings that it disputed Valspar’s approach to disciplining Mr Brodie. The Agreement does not set out a formal process for invoking a dispute. There is no requirement for the dispute notification to be in writing nor does it appear necessary for the dispute resolution procedure to be formally invoked. It requires an initial discussion with the union delegate and relevant site managers. This occurred. The dispute was unresolved and state union officials became involved in the discussion. It was clear to Valspar that there was a dispute about the disciplinary procedure it was applying to Mr Brodie prior to Mr Brodie being dismissed.

2. If the dispute was invoked, is clause 46(a) and 47(b) of the Agreement interpreted that the process was to discontinue until the dispute resolved; and

[22] I have already noted that clause 46(a) had no work to do because of the evidence of Mr O’Dwyer that he did not invoke the dispute resolution procedure under clause 46 prior to the dismissal. However, as I am satisfied that the dispute resolution procedure had been invoked prior to the dismissal, the status quo as per clause 47(b) was required to be maintained and I am satisfied that Valspar did not maintain the status quo when it proceeded to terminate Mr Brodie’s employment.

3. If there was a dispute and the clause interpreted that the process was discontinued until the dispute resolved, does that make the termination void?

[23] It may be that the Commission as a private arbitrator has the power to declare the termination of employment void and order reinstatement. However it is not necessary for me to determine this question in this matter. This is because I have formed the view that the dispute resolution procedure had not been completed prior to the dispute coming before the Commission.

[24] A Full Bench in the Australian Workers’ Union v MC Labour Services Pty Ltd 4 noted, if the preconditions in a dispute resolution procedure had not been complied with, the Commission does not have the discretion to deal with the dispute.5 The dispute resolution procedure here requires that if a dispute is unresolved at the state level, then discussions must take place between a national union official or nominee and a Senior Manager of Valspar or nominated representative. There was no evidence before the Commission that this occurred.

[25] I am therefore satisfied that until the dispute resolution procedure has been complied with, that the Commission does not have the power to resolve this dispute. Accordingly the application for the reinstatement of Mr Brodie must be dismissed.

DEPUTY PRESIDENT

Appearances:

M. Coggin and A. Lazdins for the Applicant.

A. Power for the Respondent.

Hearing details:

2017.

Melbourne:

December 18.

 1   Exhibit A3 and submissions of United Voice at [2]

 2   Exhibit A2

 3   Exhibit A3

 4   [2017] FWCFB 5032; see also Charles Sturt University v National Tertiary Education Union PR963494

 5   Ibid at [40]

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