Yoel Morag v Department of Health and Human Services

[2016] FWC 8318

[2016] FWC 8318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Yoel Morag
v
Department of Health and Human Services
(C2016/3111)

State and Territory government administration
COMMISSIONER BISSETT	MELBOURNE, 21 NOVEMBER 2016

Application to deal with a dispute – dismissed.

[1] Mr Yoel Morag made an application pursuant to s.739 of the Fair Work Act 2009 (FW Act)for the Fair Work Commission (Commission) to deal with a dispute in accordance with the dispute settlement procedures of the relevant HACSU Department of Human Services Disability Services Enterprise Agreement 2012-2016 (the Agreement).

[2] Mr Morag commenced working for Department of Health and Human Services (DHHS) as a Disability Development and Support Officer Level 1 (DDSO1) as a casual employee in March 2013. He was engaged in caring for ‘highly vulnerable people with disabilities’ living in group homes. 1 During his employment DHHS says Mr Morag was subject to a number of performance and disciplinary matters.

[3] On 31 July 2016 Mr Morag was advised of allegations of misconduct against him in relation to an incident in January 2015 (‘January allegation’) and an incident in July 2015 (‘July allegation’). Mr Morag was suspended with pay whilst these allegations were being investigated.

[4] On 17 August 2016 Mr Morag was advised that, following an investigation, an allegation in relation to an incident in April 2015 (‘April allegation’) had been substantiated. As a result of this he was requested to attend a meeting where he was advised that he would be issued with a formal warning as an outcome of the April allegation.

[5] Mr Morag was also advised that the January and July allegations were to be dealt with under the misconduct stream of the Agreement and that his suspension on pay as a result of those allegations would be rescinded. (Under the Agreement an employee cannot be suspended whilst allegations are being investigates if the allegations are being dealt with under the misconduct stream.) He was also advised however that, on return to work, some restrictions would be placed on the casual work he would be offered and could accept. The outcomes presented at this meeting were conveyed to Mr Morag in a letter from Ms Janey Muir-Smith, the Manager Residential Services, Inner Eastern Melbourne Area dated 26 August 2015. 2

[6] The letter outlined the ‘January allegations’ and the ‘July allegations’ and that these would be managed under the misconduct stream of Part 3 of the Agreement.

[7] The letter went on to state:

Due to the nature of the allegations you may return to work, however there will be some restrictions placed in the shifts you work. These are as follows:

• all shifts allocated through shift replacement



• complete day shifts



• work with a house supervisor or senior staff member



• not work in group homes where people require hoisting or support with manual handling for personal care. 3

[8] The impact of these restrictions were that Mr Morag could not contact houses directly for work – he was required to work through ‘Shift Replacement’, an on-line system for allocating work to casual employees – and there was a limit on the houses he could work in.

[9] The July allegation was subsequently substantiated and Mr Morag issued with a final warning. No action was taken in respect of the January allegation because the investigation into that matter had not been complete within the three month time frame stipulated in the Agreement.

[10] The restrictions set out in the 26 August 2015 letter remained in place.

[11] Mr Morag worked under the restrictions until 27 November 2015 when he was suspended with pay whilst further allegations (‘November allegations’) were investigated. His pay, during this stand down period, was calculated on the basis of his average salary over the previous 14 weeks. This included a period prior to the restrictions being imposed and a six week period after the restrictions were imposed.

[12] As a direct result of the restrictions imposed in August 2015 Mr Morag says that he did not receive the same pay during the stand-down period as he had generally received in the period prior to the restrictions being put in place. This was because of the type of work he could not perform during the restriction, some of which attracted a higher rate of pay and imitations on the amount of work he could perform.

[13] Mr Morag says that he was penalised for the July allegation (given a final warning), no penalty was imposed in relation to the January allegation, but he was further penalised by the maintenance of the restrictions on the work he was allowed to perform after the finalisation of the January and July allegations. Mr Morag says that there is no ability, under the Agreement, to maintain the restrictions with respect to his work. As a consequence Mr Morag says he should be paid the difference between his average pay calculated on the basis of the restricted work and what his average pay was prior to the restrictions being put in place. He says this equates to about $1,000 per pay.

[14] Mr Morag remained suspended on pay whilst the November allegations were being investigated until his employment was terminated in mid-2016.

Matters for determination

[15] The crux of the matter before me requires that two questions be answered. These were succinctly put by DHHS and I have adopted this formulation. The questions are:

1. Was DHHS entitled to limit the type of shifts to be offered to Mr Morag after 26 August 2015; and

2. Was Mr Morag entitled to a higher rate of pay during his period of suspension from 3 December 2015 until 27 July 2016 (when his employment was terminated).

[16] I have considered the provisions of the dispute settling procedure in the Agreement. I am satisfied that the matters in dispute are matters arising under the Agreement and am therefore satisfied that I have jurisdiction to deal with the dispute.

Was DHHS entitled to limit the type of shifts Mr Morag could work?

[17] Mr Morag submits that misconduct matters must be dealt with in accordance with Schedule C of the Agreement. The letter of 26 August 2015 indicated that the January and July allegations would be dealt with in accordance with the misconduct stream (not the serious misconduct stream) of the Agreement.

[18] Clause 2.1 of Schedule C of the Agreement states that:

Any action applied in relation to Unsatisfactory Performance, Misconduct or Serious Misconduct by an Employee will be in accordance with this Schedule.

[19] Clause 5 of Schedule C deals with misconduct. It states:

5. MISCONDUCT STREAM

5.1 The Misconduct stream has the following features:

(a) outcomes for the Employee may be more serious than in the

Unsatisfactory Performance stream because a formal warning may be issued;

(b) the aim is remedial action;

(c) matters are to be handled without unnecessary delay, the target for completion being within one (1) month of the allegation/s being notified to management;

(d) where the matters are not completed within three (3) months of the allegation/s being notified to management, then the Employer cannot apply a disciplinary outcome under sub-clause 5.6 of this Schedule in relation to the allegation/s;

(e) the three (3) month deadline in relation to such disciplinary outcomes does not apply where the deadlines have been extended in accordance with subclause 12.1 of this Schedule;

(f) procedural fairness; and

(g) documented outcomes.

5.2 The Employer must provide information about the process of the Misconduct stream and a copy of the allegation/s including information being relied upon by the Employer to the Employee in writing.

5.3 Should privacy considerations prevent any part of the information being disclosed, the Employer is to provide the information with appropriate deletions.

5.4 The Employee must be provided with a reasonable opportunity to respond to the allegation/s, including:

(a) a reasonable opportunity to consider the information relied upon by the Employer; and

(b) a reasonable opportunity to present to the Employer evidence relevant to the allegation/s and/or evidence relevant to the Employee's circumstances.

5.5 Remedial action must be considered by the Employer prior to and/or in lieu of a disciplinary outcome under sub-clause 5.6 of this Schedule and, where a 166 disciplinary outcome under sub-clause 5.6 of this Schedule is applied, remedial action should also occur where appropriate.

5.6 Disciplinary outcomes that may be applied in the Misconduct stream are:

(a) formal counselling; and/or

(b) a formal warning (which can be a final warning).

5.7 The process of the Misconduct stream is managed by the Employee's direct line manager, although where the Employee objects to that occurring, the Employer's central office shall determine whether or not it is appropriate for the Employee's direct line manager to manage the process.

5.8 If the first time action is taken in relation to an allegation/s or type of allegation/s under this Schedule, and that action is taken under the Misconduct stream, then the maximum disciplinary outcome that can be applied for the first time action is a warning that cannot be a final warning.

[20] Mr Morag says that, in accordance with clause 5.1(b) of Schedule C DHHS should have provided him with remedial training and it did not do so.

[21] Mr Morag says that the restrictions on work imposed on him by DHHS as outlined in the letter of 26 August 2015 are not penalties allowed by Schedule C and that by imposing them DHHS has denied him procedural fairness. Further, he says that the restrictions disadvantaged him with respect to his income which was substantially reduced.

[22] Mr Morag was subsequently stood down. He says that, in determining the 12 week period over which his average salary would be calculated, it would have been reasonable for the manager to choose a 12 week period when there were no restrictions imposed on him.

[23] DHHS submits that the Agreement provides for casual employment:

15. MODES OF EMPLOYMENT
…
15.7 Casual Employment

15.7.1 Casual Employees shall be employed only in response to unforeseen events such as filling gaps in rosters caused by sick leave or other unpredictable absences. Casual employment is not to be used in circumstances where the work undertaken is of an ongoing and predictable nature.

[24] The Agreement does not require that casual employees be offered a minimum number of shifts per week, just that the minimum payment for any shift must be three and a half hours.

[25] Further, it says that there is no obligation on DHHS to offer shifts attracting particularly penalties to Mr Morag. This is reinforced through clause 30.1.12 of the Agreement which states:

30.1.12 Equitable access to additional hours

30.1.12(a) The parties support equitable access to non-rostered additional hours in order to avoid disputes. Therefore the Employer will, in consultation with HACSU Central, ensure a shift replacement process that includes an availability option for all Employees, other than casuals. The process must also take into consideration the requirements of the facility, when engaging Employees for additional hours (See also sub-clause 15.7.11).

[emphasis added]

[26] With respect to the restrictions placed on the types of shifts Mr Morag could work DHHS says that there is nothing in the Agreement that prevents DHHS placing such restrictions on a casual employee. DHHS says that it had reasonable concerns about Mr Morag’s suitability for certain shifts. The decision to restrict the shifts he could be offered, it says, was not remedial action nor disciplinary action but a decision based on a need to balance the needs of the clients, safety, and day-to-day supervision of Mr Morag.

[27] DHHS says that the restrictions imposed were in accordance with managerial prerogative consistent with its right to deploy staff as it sees fit in the discharge of its obligations.

[28] Ms Liz Ely, Manager of Workforce Support Services, Disability Accommodation Services in Inner Eastern Melbourne Area, gave evidence in relation to the notification to Mr Morag of the January and July allegations and the notification and finalisation of the April allegation. In finalising the April incident Mr Morag was required to attend a meeting with Ms Ely and Ms Muir-Smith.

[29] Ms Ely says that the meeting occurred on 26 August 2015 and Mr Morag was advised of the outcome of the disciplinary process in relation to the April allegation. Ms Ely says that the January and July allegations were also discussed with Mr Morag and he was advised these would be dealt with under the misconduct stream.

[30] Ms Ely says that, at this meeting, she also advised Mr Morag of the restrictions that would be placed on the shifts he could be offered and accept. He was given a letter that covered both the handling of the January and July allegations and the restrictions on the shifts he would be offered.

[31] Ms Ely says that the decision to restrict the shifts Mr Morag could work was made following advice that the January and July allegations would be dealt with under the misconduct stream and therefore Mr Morag returning to the workplace. The decision was made following a request from a number of sites that Mr Morag not be placed at those sites. These requests were based ‘Mr Morag’s day-to-day performance varying from interaction style with other colleagues, interaction style and engagement with residents, not completing tasks allocated to the shift he was completing and not completing personal care requirements for residents when the use of manual handling equipment was required.’ 4

[32] Ms Ely said that, because of the autonomous nature of the work, it was often difficult to properly identify day-to-day performance issues. She says that on about 23 August 2015 she met with the Casual Workforce Manager and they agreed that Mr Morag should be assigned limited shifts including not being assigned to the 14 houses where house supervisors had requested he not be placed, working only in houses when a supervisor was present and not working in group homes where residents required hoisting.

[33] Ms Ely says that the shifts offered to Mr Morag reflected the needs of DHHS and the requirements of the residents. In particular Ms Ely says:

● She wished to ensure there was informal supervision available to Mr Morag. As sleepovers are single person these were precluded from the shifts he was to be offered;

● Increased monitoring of Mr Morag was important to ensure the Department met its duty of care to residents, given the January and July allegations of misconduct;

● A formal misconduct allegation had been substantiated (the April allegation);

● A number of minor performance issues had been raised with Mr Morag in the preceding few months;

● A number of house supervisors had requested that he not be rostered to those houses;

● Some houses can only be staffed with female staff;

● Mr Morag had previously refused to support residents on his own who required personal care via a hoist, citing health and safety concerns;

● Mr Morag habitually worked in excess of 76 hours per fortnight without the requisite approval. The requirement that Mr Morag only accept shifts through shift replacement would ensure his hours were properly monitored.

Consideration

[34] I am satisfied that DHHS has a duty of care to its residents and that this must be paramount in the allocation of any person to work with residents. The residents of DHHS are some of the most vulnerable members of the community. They must be treated with respect. The handling of staff and the allocation of staff must be seen within this framework. That is, the needs and care of the residents comes first and the allocation of staff must be directed towards this.

[35] Further, I am satisfied that the Agreement does not guarantee a casual employee any particular shifts, types of duties or income (beyond a guaranteed three and a half hours payment for each period worked).

[36] The Agreement is premised upon maximising on-going employment and ensuring the equitable allocation of work to on-going employees. This much is clear from clause 30.1.12(a) set out above. It is also reinforced by the provisions of clause 15.7.8 and 15.7.11:

15.7.8 Parties agree to work toward a targeted reduction of no more than 15% reliance on casual/agency staffing (currently over 22%) via…

15.7.11 Working with the DHS to determine agreed recommendations and subsequent implementation strategy arising from the KPMG Disability Services Casual Workforce Study, and ensuring that part-time Employees are offered the opportunity to work additional shifts prior to the engagement of casuals or agency staff.

[37] On the basis of the provisions of the Agreement I am satisfied that DHHS is not obligated to offer any particular shifts or type of work to Mr Morag nor is DHHS required to maintain Mr Morag’s income level.

[38] Subject to my comments below I do not consider the reasons given by Ms Ely for limiting Mr Morag’s shifts as being capricious or unreasonable. Issues had been raised in respect to Mr Morag’s performance and interactions with staff and residents. Mr Morag had been subject to a number of allegations (prior to the November allegation which ultimately led to his dismissal) in relation to his conduct, two of which were substantiated. Whilst I accept that the penalty in relation to the two substantiated allegations is limited by Schedule C of the Agreement this does not mean that DHHS could not or should not act on other matters of concern.

[39] I am further satisfied that DHHS did attempt to maximise the houses at which Mr Morag could work but that it was not required to offer him work at all houses.

[40] Having said this it is understandable that Mr Morag had reached some view as to his entitlement to a level of work (and hence income). He had been working for DHHS since 2013 and, it appears, had been undertaking a substantial number of hours and varying shifts. How this work was allocated – whether it was by Mr Morag making direct approaches to various house supervisors or through contact by the houses directly with Mr Morag – is not to the point. DHHS could have, and should have, been monitoring the allocations of work to casual staff to meet its obligations under the Agreement. Rightly or wrongly past practice of DHHS led Mr Morag to have a level of expectation of shifts and future work (and hence income).

[41] DHHS compounded the problem of Mr Morag’s expectations and introduced some confusion when it issued Mr Morag with the restrictions of shift allocations in the same letter in which it advised that the January and July allegations would be dealt with pursuant to the misconduct provisions of Schedule C of the Agreement and in the same meeting where he was advised of the disciplinary outcomes of the April allegation. To Mr Morag’s eyes the restrictions were part of the process of notifying, investigating and determining allegations. Mr Morag is correct when he observed that such restrictions are not a possible sanction for misconduct under the Agreement.

[42] The issue was further confused by the failure of DHHS to put in place any process to provide Mr Morag with training and support such that its issues with his performance that led to the restrictions might be rectified. Despite the findings with respect to the January and July allegations and the resultant sanctions, nothing was done to address the reasons for the restrictions. Mr Morag can feel rightly aggrieved by this.

[43] Despite all of this I can find no basis on which DHHS could not reasonably place the restrictions on Mr Morag. The direction to Mr Morag was reasonable, particularly in the circumstances of those in the care of DHHS and a concern Mr Morag had for his own health and safety. Further, the directions given to Mr Morag were lawful.

[44] Under the Agreement and as a matter of general law, management maintain a prerogative to manage its workforce within the constraints of the Agreement but otherwise as it sees fit, as long as such action is reasonable and lawful. That is, it can place such a limitation on the shifts to be offered to Mr Morag in the interests of the running its organisation and meeting its broader obligations.

[45] In that light, the following principle as stated in the Australian Federated Union of Locomotive Enginemen v State Rail Authority (NSW) (the XPT Case) 5 is relevant:

“It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable.” 6

[46] Safety and health concerns must extend to the clients of DHHS and these must override any desire of Mr Morag to be able to work more shifts in more houses.

[47] For these reasons I am satisfied that DHHS is entitled to limit the shifts to be offered to Mr Morag after 26 August 2016.

[48] I would, however, recommend that when it places such restrictions on causal employees it is properly disaggregated from any other disciplinary actions or investigations which may be underway and a process for remediating the performance is included.

Was Mr Morag entitled to a higher rate of pay during his period of suspension from 3 December 2015

[49] Mr Morag says that the effect of the restrictions unfairly placed on him is that, in calculating his average salary for the period of the stand-down from 3 December 2015 he is about $1,000 per fortnight worse off than he would have been had his average salary been calculated on the basis of his pre-restriction work.

[50] DHHS says that the restrictions placed on Mr Morag were reasonable and, had he not been stood down whilst further allegations were investigated, he would have remained on the restrictions and so would have been receiving the lower salary. Further, it says that, in recognition of some abnormal weeks of pay in the 12 week period it extended the 12 weeks by a further two so calculated his average salary over a 14 week period.

[51] DHHS further says that it is arguable that a casual employee is not entitled to any pay whilst stood down (although it does not pursue this).

Consideration

[52] The Agreement does not provide a basis for determining pay for a casual employee when that employee is stood down ‘on pay’ as happened to Mr Morag. Policy of DHHS dictates that pay during a period of a stand-down is calculated by averaging the previous 12 weeks’ pay (6 fortnights) of the casual employee. There is no doubt that this approach is fair and evens out the dips and bumps in the employee’s pay for a period of stand-down. No error can be found in this approach.

[53] At the time Mr Morag was stood-down in December 2015 part of the 12 week period used to calculate his average pay was the period of restrictions were in place and hence his income reduced. Given my finding above that DHHS could place the restrictions on the shifts Mr Morag could work and that, at the time of the stand-down those restrictions were in place and there was no indication as to when they would be lifted, I am not convinced Mr Morag was entitled to a higher rate of pay during the stand-down. His average salary was calculated in accordance with the policy of DHHS. It is unfortunate for him that it occurred not long after restrictions were placed on his shifts.

[54] I say nothing about whether there is an entitlement for a causal employee to be paid during a period of stand down. That is not a matter before me. Mr Morag was paid during the period of his stand-down. His dispute is only over the amount he was paid.

[55] If it was the case that Mr Morag was entitled to a higher rate of pay it would suggest that any casual employee stood down on pay whilst an investigation was on-going would have the right to press for the use of some 12 week period that delivered a higher average pay to them. To enable this to occur has the effect of making a policy decision of DHHS devoid of efficacy.

[56] For these reasons I find that Mr Morag was entitled to a higher rate of pay.

Conclusion

[57] In relation to the two questions to be answered:

1. DHHS was entitled to place Mr Morag on restricted duties;

2. Mr Morag was not entitled to a higher rate of pay for the period of his stand-down from November 2015.

[58] Mr Morag’s application is therefore dismissed.

COMMISSIONER

Appearances:

Mr D Morag with Mr Y Morag for the Applicant.

Mr N Keogh with Ms L Ely for the Respondent.

Hearing details:

2016

Melbourne

6 October

 1   Respondent’s outline of submissions, dated 28 September 2016.

 2   Exhibit DHS1, attachment LE-5.

 3   Ibid, page 2.

 4   Exhibit DHS1, paragraph 31.

 5 (1984) 295 CAR 188.

 6   Ibid, 191.

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