| [2019] FWC 3944 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Australian Rail, Tram and Bus Industry Union
v
Rail Commissioner
(C2019/1816)
RAIL COMMISSIONER TRAM OPERATIONS ENTERPRISE AGREEMENT 2018
COMMISSIONER HAMPTON |
ADELAIDE, 23 JULY 2019 |
Dispute about matters arising under the enterprise agreement – disciplinary process – provision of evidence and materials relied upon to worker subject to investigation – details of allegations and identities of those making allegations provided to the employee – summary of certain anonymous corroborating witness statements also provided – request for all witness statements to be provided in full – request refused – further allegations made based on evidence and conclusions from initial investigation interviews – dispute about whether natural justice and procedural fairness afforded to worker – agreement construction principles discussed – meanings of natural justice and procedural fairness considered – alleged apprehended bias – no basis for intervention in relation to original allegations found – procedural fairness principles require disclosure of actual evidence and basis of the further allegations given the nature of those particular allegations and the context in which they are advanced – determination of proper application of the enterprise agreement made.
1. The dispute and its context
[1] This decision concerns the determination of a dispute about the investigation and disciplinary procedures applied under the Rail Commissioner Tram Operations Enterprise Agreement 2018 (the EA) by the Rail Commissioner in relation to Australian Rail, Tram and Bus Industry Union (ARTBIU) member, Ms D N (the Worker). 1 This matter is being determined by the Commission as a result of an application lodged under s.739 of the Fair Work Act 2009 (the FW Act) by the ARTBIU.
[2] The EA commenced operation on 13 June 2018 and applies to the Rail Commissioner, the Rail Commissioner’s employees classified pursuant to the EA (including the Worker), and the ARTBIU. The EA’s nominal expiry date is 30 June 2020.
[3] The Rail Commissioner is a statutory body corporate established under the Rail Commissioner Act 2009 (SA) and its functions include the operation of public transport services by train or tram in metropolitan Adelaide. The Rail Commissioner is administratively part of the South Australian Department of Planning, Transport and Infrastructure (DPTI).
[4] The principal matter in dispute is whether the requirements of clause 20.8 of the EA have been met in relation to the disciplinary procedures being applied to the Worker, and if not, what consequences should follow. Clause 20 of the EA is entitled “Workplace Representatives & Trade Union Training” and subclause 20.8 provides as follows:
“20.8 In the event of a grievance or the commencement of a process relating to alleged misconduct or any other similar matter, it is accepted that procedural fairness and natural justice principles must apply at all times, including the right of an employee to be represented.”
[5] It has not been suggested by the parties that this subclause should be read down due to its place within the EA.
[6] The dispute was referred to the Commission under clause 48 of the EA; being the relevant dispute resolution term, and it is common ground that the process required by that provision has been followed. This has included the Commission as presently constituted conducting conciliation conferences. Both parties have expressly confirmed their concurrence with the Commission continuing to deal with the application and to now determine the matter.
[7] The circumstances underlying this application are that the Worker is, at the time of this Decision, undergoing a disciplinary process concerning her alleged treatment of female colleagues at her workplace and other associated matters. Ultimately, there are two sets of allegations. The initial set is made up of allegations 1 to 3 (the Primary Allegations), about which the Rail Commissioner has made some findings, but the application of any disciplinary penalty is yet to be determined by the employer. The further set of allegations, allegations 4 to 9 (the Secondary Allegations) arising from responses provided by the Worker to the Primary Allegations, have now been advanced by the Rail Commissioner but are yet to be subject to final discussion with the Worker and her representative.
[8] In general terms, the ARTBIU contends that, per clause 20.8, procedural fairness and natural justice must be applied at all times during a disciplinary process, and that these legal principles are incorporated in their entirety into the EA. 2 The ARTBIU claims the Worker was not afforded procedural fairness and/or natural justice in that certain material considered by the Rail Commissioner was not provided to her; that she was not notified of all allegations in writing prior to interviews; that a concern of apprehended bias was not adequately addressed; and that the Secondary Allegations themselves ‘do not adhere with the principles of natural justice and/or procedural fairness’.3
[9] The Rail Commissioner contends that procedural fairness and natural justice have been afforded to the Worker throughout the disciplinary and investigation process and, in effect, that the intervention of the Commission is not appropriate.
[10] By written Directions dated 18 April 2019, 4 the parties were requested to consult and seek to agree the questions to be determined in this matter. The parties did not agree on a precise question or questions to be determined and instead provided individual propositions.
[11] The ARTBIU posited the following questions for determination:
1. Was the disciplinary investigation conducted in accordance with the principles of natural justice and/or procedural fairness in respect to allegations 1 to 3 provided in the letter of 4 June 2018?
2. Are allegations 4 to 9 provided in the letter of 20 February 2019 in accordance with the principles of natural justice and/or procedural fairness or available to be made in any event? 5
[12] I observe that during proceedings, the ARTBIU confirmed that reference to “or available to be made in any event” in the second question, was based upon procedural fairness and natural justice grounds and was not inviting the Commission to review the substantive merit of the allegations.
[13] The ARTBIU sought the following determination/orders:
(i) Rail Commissioner (DPTI) withdraw any findings or disciplinary outcomes in regards to allegations 1 to 3 provided in the letter of 4 June 2018.
(ii) Rail Commissioner (DPTI) refrain from any further disciplinary process in regards to allegations 1 to 3 provided in the letter of 4 June 2018
(iii) Rail Commissioner (DPTI) cease any further investigation procedure in regards to allegations 4-9 provided in the letter of 20 February 2019. 6
[14] I note that in final submissions the ARTBIU did not press proposed order (ii).
[15] The Rail Commissioner posited the following question for determination:
“Has the Respondent complied with its obligations under clause 20.8 of the Rail Commissioner Tram Operations Enterprise Agreement 2018 in relation to the allegations it has made against [the Worker]?”
[16] The Rail Commissioner also contended that the second question originally posed by the ARTBIU and any order that would prevent it from initiating disciplinary proceedings (including proposed order (ii)) would be beyond the jurisdiction of the Commission.
[17] The Rail Commissioner further contended that it had complied with the provisions of the EA and in the alternative, it could address any procedural or other deficiencies found by the Commission in its continuing investigation and disciplinary process.
[18] Given the import of the dispute resolution procedure under the EA, 7 when the dispute was initiated in the workplace the investigation process was, and is, suspended pending the resolution or determination of the dispute. As part of the investigation process the Worker has been suspended from work on pay since June 2018. That pay includes remuneration for the normal shift and rostered overtime arrangements but not for any additional shifts or overtime that might have otherwise been performed.
2. Interlocutory and procedural matters
[19] This matter has a notable interlocutory history and some of the issues arising in that process require that I set out the reasons for certain interlocutory determinations as part of this decision. On two occasions the ARTBIU made applications for orders under s.590 of the FW Act for production of particular documents apparently relied upon by the Rail Commissioner during the disciplinary process. An application was also made by the Rail Commissioner under s.596 of the FW Act for permission to be represented at the hearing(s) in this matter. I deal with these in turn.
2.1 First production order application
[20] The first application for a production order, lodged on 23 April 2019, was subject to a hearing on 9 May 2019. That application sought production, and provision to the ARTBIU, of materials including all statements provided by witnesses to the Rail Commissioner and the report to the Delegate 8 making the decisions. On 10 May 2019, I issued a decision9 giving reasons for my refusal of the first production order application. Without detracting from the full reasons set out in that decision, the application was refused as the alleged failure to provide the documents to the Worker was a major component of the ARTBIU’s case that the Rail Commissioner had not complied with clause 20.8 of the EA. Given that the disciplinary process remained on foot and the Commission was presently dealing with whether procedural fairness and natural justice principles had been applied, rather than the substantive merit of the allegations, it was not appropriate to, in effect, render a large part of the substantive hearing irrelevant by making the production order.
2.1 Second production order application
[21] The ARTBIU made a second production order application on 29 May 2019. The second application was narrower in scope than the first and was determined, by agreement, ‘on the papers’. On 6 June 2019 I caused an email to be sent by my office to the parties communicating, amongst other matters, 10 my decision to not grant the second production order application. Parties were advised that the reasons for this decision would be provided in this substantive decision. These are those reasons.
[22] The second production order application sought only the provision by the Rail Commissioner of the Minute to Delegate (investigation report) for allegations against the Worker from the letter dated 4 June 2018; being allegations 1 to 3. This was narrower in focus than the first application; however, it continued to be made on the basis that the material would be provided to the ARTBIU and not restricted for use by the Commission to ascertain its relevance.
[23] In essence, the gravamen of my earlier decision on the first production order application remained apposite to the material sought in the second production order application. That is:
“[13] Accordingly, the material sought is relevant to the matter in the sense contemplated by the authorities and the outcome of the substantive matter does not solely rest on the fairness or otherwise of the provision of that material to the employee concerned as part of the investigation process. However, production of the material, and its provision to the ARTBIU via this application, which is in effect what is being sought, would displace, and render largely irrelevant, one of the major elements to be determined in the substantive proceedings.
[14] The Rail Commissioner is entitled to run its case as to why access to the material now sought is not required in order to provide natural justice and procedural fairness to the employee concerned in the context of this investigation and the requirements that bear upon it. The potential outcomes of the substantive application include those sought by the ARTBIU, a finding that the materials now sought should be provided as part of a revised investigation process (along with other processes), or the determination that no intervention by the Commission is required.
[15] In that light, to grant the production order application at this point in the form as now sought by the ARTBIU would, in effect, predetermine one of the critical elements that are to be resolved in the substantive matter.” 11
[24] I add that the provision of the material sought in relation to both production order applications was not simply for the purpose of informing the Commission and/or for the Commission to determine the relevance of the material. This does not mean that an order could not have been made under s.590 of the FW Act. However, given the absence of any undertakings from ARTBIU that might prevent disclosure of the material impacting upon the investigation and the determination of the dispute, and its express objection to the Commission considering the material without its more general disclosure, I did not consider that the production of the material was appropriate in the circumstances of this particular dispute.
[25] However, in relation to both production order applications, the following caveat was expressly provided by the Commission:
“[18] Further, I note that as part of the deliberation of the substantive matter, and subject to subsequently forming a view about the fairness of the investigation process, the Commission itself might determine that the materials sought in the production order application should be taken into account. Production of the material in that context would need to be revisited. However, at this point, it is premature to make such an assessment.” 12
2.3 Representation of the Rail Commissioner
[26] On 24 April 2019, the Commission received notification that a representative, Mr Bakewell of EMA Consulting Pty Ltd (EMA Consulting), had commenced acting for the Rail Commissioner in this matter and that permission to appear was being sought under s.596 of the FW Act. Both parties subsequently provided written submissions about this issue.
[27] On 6 May 2019, prior to hearing the first production order application, I caused my office to communicate to the parties my decision to permit the Rail Commissioner to be represented at the hearing of the first production order application. Permission was granted for that hearing as I was satisfied the prerequisites of s.596(2)(a) had been satisfied and permission was appropriate. In this communication it was made clear that the grant of permission did not extend to the substantive hearing in this matter. This was because a considerable amount of material was yet to be filed in the substantive matter; a factor which could influence whether permission should ultimately be granted. This email also noted my reasons for granting permission would be contained in this substantive decision.
[28] As the second production order application was dealt with ‘on the papers’, no question of permission to appear in that matter arose. 13
[29] As part of the 6 June 2019 email from my office (referred to earlier), the parties were advised that I had determined that permission for the Rail Commissioner to be represented at the hearing would be granted as I considered s.596(2)(a) had been satisfied and that it was appropriate to afford representation. Further, they were informed that reasons for this permission decision (and the earlier permission decision) would be given as part of the substantive decision. These are those reasons.
[30] Section 596 of the FW Act provides:
“(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a) where a person is from a non-English speaking background or has difficulty reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.
(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).
(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:
(i) an organisation; or
(ii) an association of employers that is not registered under the Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.”
[31] The circumstances contemplated by ss.596(3) and (4) do not apply. Accordingly, the Rail Commissioner required permission under s.596(2) if it was to be represented by a paid agent in the hearing of this matter.14
[32] The approach to be taken when considering whether permission to appear should be granted under s.596 was succinctly expressed by the Full Bench in Grabovsky v United Protestant Association of NSW Ltd T/A UPA. 15 The Full Bench in that matter stated:
“[35] Subsection 596(1) provides that a person ‘may’ be represented in a matter before the Commission by a lawyer or paid agent ‘only’ with the permission of the Commission. Subsection 596(2) provides that the Commission may grant permission ‘only if’ it is satisfied as to the existence of one of the circumstances set out in s.596(2)(a) to (c). The use of the word ‘may’ makes it clear that a decision about whether to grant permission to be represented is discretionary. But that discretion is only enlivened if the Commission is satisfied as to the existence of one or more of the circumstances set out in s.596(2)(a) to (c).
[36] Even if one of the requirements in s.596(2)(a) to (c) is satisfied that is simply the condition precedent to the exercise of the discretion conferred by s.596(2). The satisfaction of any of the requirements in s.596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.” (references omitted).
[33] In Warrell v Watson, 16 Flick J also reinforced that it is apparent from the terms of s.596 of the FW Act that a party in a matter before the Commission must normally appear on their own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law; namely only where one or other of the requirements imposed by s 596(2) have been taken into account and satisfied.
[34] As a result, in applying the approach set out above, the assessment of whether permission should be granted under s.596 potentially involves a two-step process. The first is consideration as to whether one or more of the criteria in s.596(2) is satisfied. The consideration required by this first step “involves the making of an evaluative judgment akin to the exercise of discretion”. 17 Only where the first step is satisfied, the second step arises, and involves a consideration as to whether in all of the circumstances the discretion created should be exercised in favour of the party seeking permission.18
[35] In seeking permission to appear, the Rail Commissioner contended that the sub-sections (a), (b), and (c) of s.596(2) had all been met. It submitted that this matter is suitably complex given the legal issues in dispute, including consideration of jurisdiction and precedent decisions; the interaction of the EA and the Commission’s power to arbitrate disputes; and that as the Rail Commissioner’s usual advisors in relation to industrial relations issues, EMA Consulting would allow the matter to be dealt with more efficiently. It further submitted s.596(2)(b) was made out as the Rail Commissioner has no dedicated industrial relations expert with significant advocacy experience before the Commission, and because one of the few persons with some general advocacy experience, Mr Daniel Nikoloski, is to be a witness in the matter. Finally, the Rail Commissioner submitted fairness between the parties would be satisfied if permission were granted, given the ARTBIU would be represented by a legally qualified employee with experience in industrial disputes before the Commission. 19
[36] The ARTBIU opposed the Rail Commissioner’s application for permission “in the strongest possible terms” on the basis none of the factors in s.596(2) had been satisfied. 20 The ARTBIU submitted this matter is not sufficiently complex, stating the dispute centred on the Rail Commissioner’s application of its own policies, and that the introduction of another party would likely cause delay. It was further submitted that the Rail Commissioner did in fact have appropriate internal advocacy expertise beyond Mr Nikoloski, and that self-representation is common before the Commission. Finally, the ARTBIU submitted the Respondent’s large size and internal human resources department weighed against the need to grant permission to appear on the basis of fairness between the parties.
[37] In relation to permission to appear during the first production order application, I was satisfied the prerequisites of s.596(2)(a) had been satisfied and that the granting of permission would allow that application to be dealt with more efficiently. The production order application required the expeditious consideration of the conventional rules of production, but occurred in the context of this particular dispute. This in turn, required consideration of the status of the investigation process, the impact of the production order and the implications for the dispute and the present investigation process. This was overlaid, at that time, by a foreshadowed jurisdictional objection. In my view, this was relevant complexity and I considered that in all of the circumstances, having the Rail Commissioner represented by an Agent would enable the matter to be dealt with more efficiently. Further, having regard to all of the circumstances of the matter, including the nature and quality of the ARTBIU’s representation, it was appropriate to exercise the discretion in favour of representation.
[38] In relation to the substantive hearing of this matter, I similarly determined that the prerequisites of s.596(2)(a) had been satisfied. This included that the application of the concepts of natural justice and procedural fairness were not defined in the EA and there was a dispute about how the general legal concepts should be applied given the terms of that instrument and policies being applied in the Rail Commissioner’s operations and the South Australian public service. There were also jurisdictional objections and multiple witnesses including the potential for confidential evidence that added to the likely complexity of the matter. Further, whilst not necessarily leading to a view that the Rail Commissioner could not represent itself effectively (there were other human resource personnel but without any significant legal or advocacy experience), Mr Nikoloski’s role as a key witness and as the officer with carriage of the matter, was an additional factor supporting the exercise of the discretion to permit representation by a lawyer or paid agent.
2.4 The non-disclosure of the identity of the employees concerned
[39] In this decision, I have not disclosed the identities of the Worker or the individual employees associated with the various allegations. Although not initially sought by the Rail Commissioner, and opposed by the ARTBIU, I considered that this was the appropriate course of action for the following reasons.
[40] This decision is being made in the context of a disciplinary process that is not yet completed and I make no assumption about any final process or outcomes. What follows from this decision is that the Rail Commissioner is yet to determine any outcome in relation to the Primary Allegations and will need to consider whether, and potentially how, to proceed with the Secondary Allegations. These matters all involve employees who, subject to the suspension of the Worker, would all be working from same depot and I do not consider that the public disclosure of the identity of those involved is required to meet the concerns of open justice, or is in the Worker’s (or others’) best interests. This is particularly so given the present role of the Commission does not involve any consideration or determination of the substantive merit of the allegations and the public disclosure of those involved without any merit-based findings has the potential to create long-term unfairness.
[41] This approach is not a reflection upon the dispute about the provision of details during the course of the investigation; that is a distinct issue lying at the heart of the dispute and dealt with on its own merits. Further, I have not hidden the identity of the management employees involved in conducting the investigation or in decision-making roles as the same considerations do not apply.
[42] I also note that the identity of two employees (not directly involved in the allegations) who were interviewed as part of the disciplinary process are subject to a confidentiality order 21 under s.593(3) and s.594 of the FW Act. The identity of all of those employees making the allegations was fully disclosed during the investigation and during the hearing conducted in this matter.
3. Chronology of events leading to the dispute
[43] This disciplinary process, and the events leading up to it, is somewhat protracted. It is convenient to set out the key dates and events based upon the evidence as context for the discussion to follow.
[44] The Worker currently holds the position of Senior Tram Operator and works from the Rail Commissioner’s Glengowrie Tram Depot. The Worker has held this position since 2009 and is a long-standing employee of the Rail Commissioner, having worked in varying capacities since October 2005.
[45] The Glengowrie depot is part of the Adelaide’s tram network and approximately 100 employees are based there.
[46] In April 2018 complaints were made to the Rail Commissioner by two employees Ms V and Ms H about their colleague, the Worker. Later in April 2018 Mr Daniel Nikoloski investigated these complaints through a series of interviews with workers of the Rail Commissioner who had been identified by Ms V and Ms H as potential witnesses. The persons interviewed were a Tram Operator Mr M, Mr B, Employee X and Employee Y. 22 After considering the evidence gathered at these interviews the Delegate gave authority for the management of the Rail Commissioner to commence a disciplinary process in accordance with the relevant disciplinary procedure.
[47] On 4 June 2018 the Worker was directed by letter to attend an investigation interview on 6 June 2018. The Worker was also directed not to attend work and was informed she would continue to be paid during this time. This letter contained three allegations (and the particulars of each). Amongst other matters, the particulars set out time periods, the other employees and the nature of the conduct involved with each allegation. In some cases, the details of the words alleged to have been made by the Worker were also included in the particulars. These allegations had been prepared by Mr Nikoloski based upon the earlier interviews.
[48] On 6 June 2018 the first investigation interview took place. In attendance were the Worker, Ms Kaye Brown of the ARTBIU, Mr Nikoloski, Ms Y F - Team Leader, Tram Operations (the Team Leader), and Ms Roberta Camporeale - HR Graduate with DPTI. The Worker was given an opportunity to respond to the allegations contained in the 4 June letter. This meeting was recorded. During this interview, Ms Brown sought further particulars regarding the allegations and access to the evidence (statements from the witnesses) relied upon to make or support the allegations. In particular, Ms Brown sought confirmation of actual dates and times and the details of the statements from employees who were alleged to be corroborating the allegations so that these could be properly tested. Further, Ms Brown indicated, in effect, that if there were findings made, the matter would be subject to the internal appeal process and all the documents and materials would be provided to the union as part of that process. Representatives of the Rail Commissioner explained, in effect, that they had put the substance of the conversations to the Worker, had been advised that it was not always necessary or appropriate to provide the actual witness statements and given the allegations included bullying in the workplace, would not be doing so. 23 At this meeting, Ms Brown also raised concerns about alleged bias in connection with the Team Leader.
[49] As a result of the Worker’s responses during this interview, the Rail Commissioner conducted further interviews with Ms V, Mr M and Mr B.
[50] On 20 June 2018 the second investigation interview took place. The attendees of the 6 June interview also attended the 20 June interview. This meeting went for approximately 1 hour and 10 minutes and then adjourned as it could not cover all intended topics during the time allotted. 24 This meeting was also recorded.
[51] On 26 June 2018 the third investigation interview took place with the same attendees. This meeting effectively continued the 20 June 2018 discussion and was recorded. Ms Brown again sought further particulars regarding some allegations during this meeting.
[52] In July 2018 the Worker advised the acting Chief Executive of the Rail Commissioner, Ms Julienne TePohe, of concerns regarding a perceived bias held by the Team Leader towards the Worker, and of the Team Leader’s involvement in the investigation process generally. A concern was also raised that the Team Leader had bullied, or was bullying, the Worker.
[53] On 17 August 2018 a meeting took place between the Worker, Ms Brown, and a revised line-up for the employer; being, Ms Anne McClure, Principal Human Resources Consultant, and Mr Troy Wright of the Rail Commissioner. During this meeting Ms Brown requested copies of the transcript from the investigation interviews of 6, 20 and 26 June. These were provided to the Worker and Ms Brown 25 and the meeting was adjourned to give them time to review the transcripts. This brief meeting was not recorded.
[54] On 21 August 2018 a fourth investigation interview took place. The Rail Commissioner considered that this meeting was conducted to give the Worker an opportunity to put further evidence following receipt of the records of interview or make comments she felt unable to provide previously in the Team Leader’s presence. This was explained at the outset of the meeting. The disciplinary process was not recommenced from scratch. This meeting was attended by the same people as the 17 August meeting. This meeting lasted approximately two hours and was recorded. Ms Brown again aired concerns regarding particulars of certain allegations and access to witness statements during this interview.
[55] During the course of the interviews, the Worker, through Ms Brown, contended that she was being bullied by the Team Leader. This was investigated, at least in a preliminary sense, on behalf of the Rail Commissioner.
[56] The material gathered at the first, second, third and fourth investigation interviews was then summarised in a letter prepared by Mr Nikoloski for consideration by the Delegate. The Delegate determined the Primary Allegations were made out (though a dispute exists regarding certain particulars not made out). The Delegate also considered that a further six allegations should be put to the Worker (the Secondary Allegations), on the basis that the Worker had ‘wilfully mislead’ the investigators. The Delegate also determined that no investigation was warranted into claims the Team Leader had bullied the Worker.
[57] On 27 February 2019 a fifth investigation interview took place. This interview concerned the Secondary Allegations. In attendance were the Worker and Ms Brown, Mr Nikoloski and Mr Brett Andruszkiewicz, Unit Manager Tram Operations. Ms Brown’s continuing concerns regarding access to witness statements and reservations about the original interviews were also raised during this interview.
[58] On 1 March 2019 Ms Brown wrote to the Chief Executive of the Rail Commissioner, Mr Tony Braxton-Smith to notify of a dispute in relation to alleged non-compliance with clause 20.8 of the EA. Mr Braxton-Smith responded to this letter on 13 March 2019.
[59] On 18 March 2019 Ms Brown indicated to the Rail Commissioner that she intended to proceed with the dispute to the Commission.
[60] On 20 March 2019 a sixth investigation interview was to take place. This did not occur given the escalation of the dispute and the terms of the EA.
[61] The dispute was lodged in the Commission on 21 March 2019.
[62] The nine allegations now made against the Worker are as follows:
1. Between 19 April 2017 and 6 June 2018 you have discriminated against women in the office of the Glengowrie Tram Depot based on their gender.
2. Between 19 April 2017 and 6 June 2018 you have bullied women in the office.
3. On 18 April 2018 (the said date) you spoke in an unprofessional and disrespectful manner about Ms H to Mr B, Tram Operator.
4. At the investigation interview of 6 June 2018, you attempted to wilfully mislead the investigation into your behaviour by advising you would ‘always assist Ms H’ when she requested assistance between 29 January and 19 April 2018, when you knew or ought to have known you did not.
5. At the investigation interviews of 6, 20 and 26 June 2018, you attempted to wilfully mislead the investigation into your misconduct by advising you debriefed Ms V on 19 February 2018 about the process a Senior Tram Operator undertakes when a Tram Operator passes a signal at danger without the appropriate authority (Signal Passed at Danger – SPAD), when you knew or ought to have known you did not.
6. At the investigation interviews of 6, 20 and 26 June 2018, you attempted to wilfully mislead the investigation into your misconduct by advising you did not state to Mr M, on 12 or 13 April 2018, “the diversity of the office has changed” and you were “not impressed”, you were going to make it “hard for them” and “know how to fix people up”, referring to [two other female employees], Ms V and Ms H, when you knew or ought to have known you did make these statements.
7. At the investigation interview 26 June 2018, you attempted to wilfully mislead the investigation into your misconduct by advising you did not say to Mr M on 12 or 13 April 2018, “[Ms H] should have followed me, she’s too stupid to follow me” regarding working together with Ms H on 7 March 2018, when you knew or ought to have known you did make this statement.
8. At the investigation interviews of 6 and 20 June 2018, you attempted to wilfully mislead the investigation into your misconduct by advising Mr B did not question why you were undertaking his driving assessment instead of Ms H on 13 April 2018, when you knew or ought to have known he did.
9. At the investigation interview of 26 June 2018, you attempted to wilfully mislead the investigation into your misconduct by stating you did not treat Mr M unprofessionally after becoming aware he met with Human Resources regarding your misconduct investigation, when you knew or ought to have known you did.
[63] Each of these allegations were stated as being supported by various particulars, which I have not repeated here.
[64] Allegations 1 to 3 now represent the Primary Allegations and allegations 4 to 9 the Secondary Allegations.
[65] I observe that the Worker may have access to an internal appeal of any (final) disciplinary decision made by the Rail Commissioner (the Delegate) if such involves a penalty being placed on her personal record. This appeal is a discretionary process that has operated historically and relates only to a final decision once made. I will return to the relevance of this internal appeal process as part of my conclusions.
3. The positions of the parties
[66] The ARTBIU contends that clause 20.8 of the EA, in effect, imports the full legal notions of natural justice and procedural fairness. Drawing on authority, it submitted that natural justice involved the following concepts:
• “The duty afford natural justice arises because the power involved is one which may “destroy, defeat or prejudice a person’s rights, interests or legitimate expectations”.26
• In the context of legislation and administrative law decisions, where the legislation provides for multiple stages of decision making, the process should be viewed in its entirety to make sure natural justice principles have been afforded.27
• When considering whether natural justice has been afforded it must be noted that the rules of ‘natural justice’ are flexible, requiring fairness in all the circumstances of the individual case.28
• “Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.” 29
• “What the principles of natural justice require in particular circumstances depends on the circumstances known to the repository at the time of the exercise of the power or the further circumstances which, had he acted reasonably and fairly, he would then have known. The repository of a power has to adopt a reasonable and fair procedure before he exercises the power and his observance of the principles of natural justice must not be measured against facts which he did not know and which he would not have known at the relevant time though he acted reasonably and fairly. As the obligation to observe the principles of natural justice is not correlative to a common law right but is a condition governing the exercise of a statutory power, the repository satisfies the condition by adopting a procedure which conforms to the procedure which a reasonable and fair repository of the power would adopt in the circumstances when the power is exercised. When the question for the court is whether the condition is satisfied, the court must place itself in the shoes of the repository of the power to determine whether the procedure adopted was reasonable and fair.”30
[67] In relation to procedural fairness, the ARTBIU contends that this concept has two pillars; being the hearing rule and the bias rule. It submitted that the hearing rule involved notions that people whose rights, interests and expectations may be affected by a decision should be given sufficient prior notice and an adequate chance to be heard before any decision is made.
[68] According to the ARTBIU the bias rule requires the absence of bias, whether actual or apparent, and connotes that the decision maker must approach the matter with an open mind that is free from prejudgment and prejudice; that is, impartial.
[69] The ARTBIU further contends that the process as applied by the Rail Commissioner to the Worker did not meet either of these concepts. It does so on the basis of five summary propositions advanced during the hearing as follows.
Evidence not produced
[70] The ARBIU relies upon the fact that the Rail Commissioner’s letter dated 4 June 2018 directing the Worker to come to an interview for the Primary Allegations, expressly stated:
“At the interview you will be provided with full copies of the allegations; copies of, or access to, evidence and information relied upon in support of the allegations; and afforded a reasonable opportunity to respond.” 31
[71] It further contends that during each of the five interviews, it sought details of the allegations including access to the statements taken by those whose contribution was being relied upon in the investigation. The statements were not provided and it contends that “very little material of no real value” was given.
[72] The ARTBIU contends that the above has led to two problems with the process adopted by the Rail Commissioner. Firstly, it was important the Worker had the ability to view the evidence relied upon for the allegations as it would be the only fair way for her to respond. That is, although the persons making the allegations were known, the allegedly supporting witnesses were not identified. This, it is contended, was particularly important because the Worker considers that there were a group of employees who were, in effect, friends ganging up on her and whether these additional witnesses were part of that group was a critical fact that was important for the Worker to know. Further, the gender of those involved was also important given that one of the allegations was that she was discriminating against the female employees in the workplace.
[73] Secondly, the ARTBIU contends that the Rail Commissioner has created a ‘legitimate expectation’ 32 or otherwise termed a ‘reasonable expectation’ that the actual evidence being relied upon would be provided and that she would be able to view the evidence and be in a fully informed position before providing her responses. The expectation itself is not the right. The right is the right to natural justice in certain circumstances and a ‘reasonable expectation’ is one of those circumstances. For natural justice and procedural fairness to be afforded in the circumstance, the evidence needed to be forthcoming.
Not notified of all of the allegations in advance
[74] The ARTBIU contends that the Rail Commissioner’s correspondence dated 4 June 2018 does not include all of the allegations that were found to be substantiated in the letter dated 20 February 2019.
[75] It asserts that the failure to notify the Worker of the allegations prior to the interview is clearly a procedural fairness and natural justice failure and is contrary to the employer’s obligations in case law.
Apprehended bias due to the initial involvement of the Team Leader and the continuing involvement of Mr Nikoloski
[76] The ARTBIU accepts that the Rail Commissioner acted appropriately by reconstituting the interview panel dealing with the allegations when the Worker raised concerns about the Team Leader’s involvement. However, it contends that the process did not provide natural justice because:
• The basis upon which those to be interviewed was established by the Team Leader and this influenced what followed;
• Mr Nikoloski, who was involved throughout the process, remained involved and remained as the person who wrote the Minute to Delegate for the Primary Allegations despite already having “been tainted by [the Team Leader]”;
• The information and, by implication, the views, attained from the earlier interviews with the Worker were not abandoned but instead used to substantiated the Primary Allegations;
• Mr Nikoloski was then also one of the interviewers for the Secondary Allegations which presents the same shortcoming; and
• The evidence that was collected when there was bias present was the same evidence that was used to substantiate the Primary Allegations and as the basis for the Secondary Allegations.
The Secondary Allegations were not reasonably open as a matter of natural justice
[77] The ARTBIU contends that:
• Of the allegations that were substantiated, the conflicting evidence is simply a different version of events. Whichever side is true, neither can be reasonably and fairly seen as an attempt to wilfully mislead;
• As a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in giving evidence. Even if the evidence was found to be extremely black or white, a finding of dishonesty in giving evidence ought not be made on the single oath of another person without any confirmatory evidence.
• In the Worker’s circumstances the criteria for establishing the decision to discipline her for being ‘wilfully misleading’ was not open to the Respondent. It is not a reasonable exercise of the Respondents power during disciplinary procedures.
[78] In the alternative, the ARTBIU contends that even if the Commission was to find that the decision to discipline the Worker for being wilfully misleading due to her conflicting evidence was within the realm of general reasonableness, is would still not adhere to the principles of natural justice or procedural fairness. As enunciated in Wednesbury, 33 the requirement pursuant to the natural justice and procedural fairness principles, is that a decision must not be so absurd that no sensible person could ever dream that it lay within the powers. The Rail Commissioner’s decision to discipline the Worker for being ‘wilfully misleading’ falls short of ‘Wednesbury reasonableness’.
[79] The ARTBIU further contends that natural justice also dictates suspicion of misleading evidence needs to be raised by a person present at the time the evidence was provided. 34 Anne Alford, Executive Director, Public Transport Operations, in her letter of 20 February 2019 states that she ‘now also suspects on reasonable grounds [the Worker’s] behaviour during the interview investigation process wilfully attempted to mislead the investigator’. This was not open to Ms Alford as she was not present.
The basis for allegation 9 was not put separately or in advance and was not open as a matter of natural justice
[80] The ARTBIU’s proposition in this respect may be summarised as follows:
• During the investigation meetings for the Primary Allegations, the Rail Commissioner put to the Worker that she had treated Mr M unprofessionally after becoming aware he met with Human Resources however this was not an allegation she had been notified of in advance. On her denial the Rail Commissioner then, like the other Secondary Allegations, asserts that she wilfully mislead the Respondent;
• This behaviour fails against the natural justice principles. First, the Worker was not notified in advance of the allegation. Second, it was simply a matter of competing evidence like all the other Primary Allegations. Third, in the context of disciplinary procedures an employee cannot wilfully mislead an investigator about an allegation which was not put to them as an allegation; and
• If the Respondent reasonably believed that the Worker had mistreated Mr M, then they should have put an allegation to her about mistreating him. Not about wilfully misleading the investigator. They have missed vital steps which are required for procedural fairness principles to be adhered to.
[81] The ARTBIU led evidence from the following:
• Ms D N (the Worker); and
• Ms Kaye Brown, Branch Organiser for the SA/NT Branch of the ARTBIU.
[82] The outcome sought by the ARTBIU was, in effect, that the Commission determine that the disciplinary investigations leading to the findings in allegations 1 to 3 and the making of allegations 4 to 9 were not consistent with the requirements of clause 20.8 of the EA and that the findings and allegations against the Worker be withdrawn.
[83] The Rail Commissioner accepted that the Commissioner has jurisdiction to deal with the dispute if the relevant question to be determined is the question it posed. That is, the dispute arises from a relevant provision of the EA (clause 20.8) and to that effect, clause 48 of the Agreement allows for the dispute to be referred to the FWC. However, it contends that clause 20.8 does not contemplate the actual decision making by the Rail Commissioner in respect to specific disciplinary outcomes (it only obliges procedural principles) that may be available to it. Therefore, it posits that the Commission only has jurisdiction to determine procedural matters in the relation to the present matter.
[84] In the same manner, the Rail Commissioner contends that it is not open for the Commission to rule on any disciplinary outcomes, as any such ruling would be inconsistent with the terms of the Agreement, which did not specify any relevant outcomes, and be in contravention of s.739(5) of the FW Act. 35 Further, should the Commission find that there was a procedural deficiency, it is open for the Rail Commissioner to take such actions as might be required to remedy those defects in order to comply with clause 20.8. Any order sought by the ARTBIU to limit those actions was beyond jurisdiction.
[85] The Rail Commissioner does not dispute that clause 20.8 of the Agreement has a clear and unambiguous meaning in accordance with the principles set out in AMWU v Berri Pty Limited and that Clause 20.8 requires that ‘natural justice and procedural fairness principles’, including the right to representation, must apply in the event of a grievance or the commencement of a process relating to alleged misconduct or any other similar matter. However, unlike the ARTBIU, it contends that the phrase, ‘procedural fairness and natural justice principles’, which is not defined in the EA, does not necessarily import those legal principles in their entirety.
[86] Rather, the Rail Commissioner contends that:
• The term ‘natural justice’ has no precise meaning. This presents some difficulty in importing the term in its entirety and applying it to the present matter with any level of precision or practicality.
• It is apparent that what constitutes natural justice in all cases cannot be simply stated.
• Procedural fairness is a component of natural justice.
• When contemplating procedural fairness, consideration should be given to the ‘hearing rule’ and the ‘bias rule’.
• In terms of the bias rule, the decision-maker must approach a matter with an open mind that is free of prejudgement and prejudice.
• With respect for the ‘hearing rule’, or more aptly with respect to the present industrial matter, the employee’s ‘opportunity to respond’, is set out within the FW Act (unfair dismissal) jurisdiction.
[87] On that last element, the Rail Commissioner contends that the process for affording an employee the opportunity to respond does not require any particular formality and is to be applied in a common sense way to ensure the employee has been treated fairly. 36 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of this section.
[88] In summary, the Rail Commissioner contends, in effect, that the Commission should consider:
• Whether the Worker was afforded the opportunity to respond;
• Any bias of the decision maker;
• Whether the Worker was permitted to be represented; and
• Whether any deficiencies have made any difference to the outcome.
[89] The Rail Commissioner dealt separately with the Primary and Secondary Allegations. In submissions, it also concentrated upon those elements of the Primary Allegations that were found to be substantiated by the investigation.
[90] The Rail Commissioner submits that the Worker was afforded the opportunity to consider and respond to each of the relevant details of the Primary Allegations and as a result it has complied with that principle of natural justice and procedural fairness. This opportunity arose from a combination of the:
• Notification of Investigation and Managerial Direction letter which detailed the Primary Allegations;
• First Investigation Interview in which the Worker was able to respond to the Primary Allegations and was represented by Ms Brown;
• Second Investigation Interview in which the Worker was able to respond to the Primary Allegations again and was represented by Ms Brown;
• Third Investigation Interview in which the Worker was able to respond to the Primary Allegations again and was represented by Ms Brown;
• Provision of the records of interview from the First Investigation Interview, Second Investigation Interview and the Third Investigation Interview, which enabled the Worker to reflect on those discussions in their entirety and to put any submission in relation to them; and
• Fourth Investigation Interview in which the Worker was represented by Ms Brown and was able to respond to the Primary Allegations and any aspects of the records of interview from the First Investigation Interview, Second Investigation Interview and the Third Investigation Interview.
[91] The information which formed Allegation 1D, particular (v) was presented verbally to the Worker at the Third Investigation Interview. This was as a result of the further investigation conducted by the Rail Commissioner which occurred after the First Investigation Interview.
[92] Allegation 1C fundamentally concerned the Worker’s conduct in connection with a nominated SPAD and the Rail Commissioner contends that the details of the allegations and the Worker’s response was discussed at each of the first three interviews and no further response was made by or on her behalf at the fourth interview.
[93] The particulars for Allegation 2 are the same as Allegation 1. The Rail Commissioner contends that the Worker had the opportunity to respond to each.
[94] The Worker denied Allegation 3. The particulars were put and discussed in the first interview, there was no material change in position at the second interview and the response was not revisited in the fourth interview.
[95] In relation to the provision of witness statements to the Worker, the Rail Commissioner contends that there is no overarching obligation for the provision of witness statements in a disciplinary matter. The failure to provide witness statements within the jurisdiction of the FW Act does not mean that a disciplinary process is not ‘procedurally fair’. It also contends that the wording of the letter setting out the allegations was not understood by it to mean that the witness statement themselves had to be provided to the Worker.
[96] The Rail Commissioner also contends that the Secondary Allegations are in fact ‘black and white’ unequivocal denials, not merely a different characterisation of the same event where ‘attribution or accommodation for natural human foibles such as those which might be associated with a faulty or even selective memory’. 37
[97] In particular, the Rail Commissioner submits that Allegation 9, concerning an interaction with Mr M, was expressly put to the Worker, who unequivocally denied that this took place. Further, Ms Alford had reviewed the full transcribed records of interview from the three Investigation Interviews and there is no practical reason why it would not be open to Ms Alford to put these issues to the Worker for response.
[98] The Rail Commissioner submits that the Worker was afforded the opportunity to consider and respond to the precise nature and details of the Secondary Allegations and therefore the Respondent has complied with that principle of natural justice and procedural fairness. This included the fact that prior to the Fifth Investigation Interview, the Worker and Ms Brown had access to the records of interview from the previous four investigation interviews. There is no further evidence relied upon by the Respondent with respect to the Secondary Allegations. In addition, the Sixth Investigation Interview did not proceed due to the Applicant raising the present dispute.
[99] As a result, the Rail Commissioner contends that the Worker was aware of the precise nature of its concern in respect to the Primary Allegations and the Secondary Allegations. Further, the Worker was given a full opportunity to respond to the Primary Allegations and the Secondary Allegations and was represented on each occasion that an interview was conducted.
[100] As to the issue of alleged bias, the Rail Commissioner contends as follows:
• The Fourth Investigation Interview was an opportunity for the Worker to provide information she did not feel comfortable providing in front of the Team Leader;
• Given the absence of any significant additional information, the Team Leader’s presence at the First Investigation Interview, Second Investigation Interview and Third Investigation Interview had no bearing on the Worker’s opportunity to respond or breached procedural fairness and natural justice principles;
• The Team Leader was not a decision maker in this process. The Team Leader was a management witness on behalf of the Respondent;
• Ms Alford determined, based on the evidence before her, that no bullying of the Worker occurred by the Team Leader and as a result the suggestion that the Team Leader’s involvement in any way biased the process is unfounded; and
• There was no bias on behalf of the Team Leader, and as the Team Leader was not a decision maker, this element of natural justice and procedural fairness is not relevant.
[101] In terms of Mr Nikoloski’s involvement, the Rail Commissioner contends that he was also not a decision maker in this process, and given the absence of an proper basis for the bias allegations against the Team Leader, there is also no basis to suggest that his continuing involvement in any way biased the process or ‘tainted’ the outcome.
[102] The Rail Commissioner sought a determination that it had complied with clause 20.8 of the EA.
[103] The Rail Commissioner led evidence from the following:
• Mr Daniel Nikoloski, Principal Consultant, Human Resources at DPTI; and
• Mr Troy Robert Wright, Leading Development Facilitator for Trams at DPTI.
[104] The Rail Commissioner also proposed to lead evidence from Ms Ming-Lyn Hii, Consultant at EMA Consulting. Ms Hii’s affidavit and annexure comprised her assessment of information forming the basis for certain allegations against the Worker. The ARTBIU objected to Ms Hii giving this evidence on the basis that the document was simply an audit of the evidence, Ms Hii has not been held out as an expert, the document largely comprised opinion and/or hearsay and that it was of questionable relevance. The Rail Commissioner contended Ms Hii’s affidavit and annexure were evidence of an independent analysis that Ms Hii had undertaken.
[105] Given the nature of the material, the circumstances in which the documents were created, and the degree to which the ARTBIU and the Commission could properly assess the accuracy or otherwise of the source material, I determined I would not accept Ms Hii’s affidavit and annexure as evidence. I did however consider the material as part of the submissions of the Rail Commissioner to the extent that it relies upon information already made available to the Worker or the ARTBIU during the proceedings.
4. Observations on the evidence
[106] I found that each of the witnesses gave their evidence openly and constructively. In general terms, their evidence was also objective and of assistance to the Commission. To the extent that any of the witnesses expressed views about the proper application of the EA to the dispute, this is a matter for the Commission itself to determine.
5. The approach to be applied to determining the proper application of an enterprise agreement
[107] A number of Full Benches of the Commission have outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. The most recent statement of the principles was set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited38 (AMWU v Berri) and I do not propose to set out those principles in this decision. I have however applied them to this matter.
[108] More recently, the Full Court of the Federal Court in WorkPac Pty Ltd v Skene 39 (WorkPac) also provided the following convenient summary of the required approach:
“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.” 40 (citations omitted)
[109] The above observations are consistent with the approach taken in AMWU v Berri. In the end, my present task is to ascertain the objective intention of the EA based upon the language and terms of the agreement, when read as a whole, and considered having regard to its context and purpose.
[110] For completeness, I observe that the Commission is not empowered to grant some form of declaratory relief.41 Rather, the Commission is determining the proper application of the EA in order to determine the dispute between the parties about that instrument under the terms of the agreed dispute resolution procedure.42
[111] As part of the evidence, the ARTBIU confirmed that a guideline operating within the South Australian public service was referenced in negotiations leading to the EA. I accept that evidence; however the evidence is also that the guideline was not referenced within the EA or disclosed to the employees as part of their approval process. In that light, whilst the document may be useful as part of the consideration of the general meaning of concepts of natural justice and procedural fairness, it does not directly inform the objection intention of the enterprise agreement itself. 43
[112] I leave aside for the moment, the jurisdictional objections raised by the Rail Commissioner. In effect, these are objections to the form of questions proposed, and more strictly, the form of orders sought. These are largely, but not fully, accommodated by the concessions made by the ARTBIU. As a result, I will return to these objections as part of my conclusions.
6. The application of clause 20.8 to the dispute
6.1 The meaning and import of the provisions
[113] Clause 20.8 has been set out earlier in this decision. The parties have not referred to any other provisions of the EA that shed any light on the provision or assist with its application, and none appears to do so.
[114] The initial question is whether the provisions of the Agreement are ambiguous or capable of more than one meaning. This question arises from the approach summarised in AMWU v Berri. In this respect, regard may be had to evidence of surrounding circumstances provided that those circumstances are not relied upon to contradict the plain language of the agreement.44
[115] I do not consider that clause 20.8 of the EA, when considered in context and having regard to the terms of the EA more generally, is ambiguous or capable of more than one meaning. It requires that in the event of a grievance or the commencement of a process relating to alleged misconduct or any other similar matter, procedural fairness and natural justice principles must apply at all times, including the right of an employee to be represented.
[116] There is no dispute about the right to be represented in this matter or that such has applied at all times.
[117] I accept that there is room for some debate about how the concepts of procedural fairness and natural justice are to be applied in any given case but this does not make the provision itself ambiguous.
[118] I have outlined the parties’ views about these concepts and the various sources used to support them. In general terms, the differences are matter of degree. However, there are some more fundamental issues about the practical application of these concepts in the context of this Enterprise Agreement and this dispute. I would observe that whilst the discussion of related procedural fairness concepts arising from the Commission’s unfair dismissal jurisdiction are useful, these arise in a particular statutory context where the procedural considerations are directly set out in the FW Act. 45 As a result, it is generally the broader authorities that underpin the decisions of the Commission that provide the most assistance in the present context.
[119] Each of the parties has referred to a different policy document as supporting their version of the practical application of these concepts. Neither of these documents form part of the EA but each is relevant. The Rail Commissioner has referred to the Discipline Procedure 46 it has issued, which is a comprehensive procedure outlining the various stages of a disciplinary process and other matters. There does not appear to be any dispute that the stages and general process set out in this policy has been followed; however it does speak to the level of details to be provided in notifying the employee of the investigation and the information to be provide at interviews. It states:
“7.2 Notification of investigation
Once it has been established that a full investigation is necessary, the employee must be notified. This must be followed up in writing as soon as possible. At this point, it is necessary to determine whether a 'direction not to attend for duty until further notice' is warranted (refer section 7.2.1). Written notification must include:
• that an investigation into the alleged misconduct will take place;
• the alleged misconduct that is being investigated;
• the seriousness of the allegation;
• the range of disciplinary action that may be taken if the allegation(s) is proven;
• the name of the contact person;
• that full details of the allegation(s) will be given at the investigation interview, including any relevant documentation;
• that the employee has the right to have a witness/support person at any stage of formal disciplinary procedures (including an interpreter if necessary);
• the employee must be clearly notified that the investigation interview will provide the employee with an opportunity to respond to the allegation(s).
…
7.4.1 The interview
The delegate must state clearly the complaint/allegation(s) the employee is facing, and provide full details of the evidence relating to the allegation(s). The details of witness statements and/or other evidence/information must be put to the employee.
The employee must be asked to give his or her account. The employee must be provided with a proper opportunity to respond to the allegation(s) made.
The Delegate must clarify any information/response given by the employee if necessary.
It must be made clear to the employee that this may be his or her final opportunity to be heard before a decision is made.
When all relevant aspects of the matter have been discussed thoroughly the employee should be advised that management is sufficiently informed to make a finding, or that further investigation and consideration of the issue are required. The employee should be assured that proper consideration will be given to all of the information collected throughout the investigation.
There should be no indication of any final decision(s) at this stage.
The interview is then adjourned for a specified period of time sufficient to allow full consideration to be given to the employee's explanation or comments.
New evidence may be revealed during the investigation interview that could affect the decision as to whether the allegation is proven. New evidence must be investigated by the Delegate at the earliest opportunity. In such circumstances it may be necessary to arrange a further interview with the employee to ensure that he or she is informed of the impact the new evidence may have on the investigation. In any case, the Delegate must ensure that the employee is aware of any new evidence, and has had the opportunity to respond to it.” 47
[120] The ARTBIU relies upon a guideline issued by the South Australian Office of the Commissioner for Pubic Employment (OCPE) entitled: Management of Unsatisfactory Performance, including Misconduct 48 (the Guideline). It suggests, in effect, that the Guideline is a relevant, but not complete, statement of the principles that should be applied under clause 20.8 of the EA. The Guideline states as follows:
“Who is covered by this Guideline?
The Commissioner for Public Sector Employment is empowered under section 14(d) of the Public Sector Act 2009 ("PS Act") to issue guidelines relating to public sector employment. This Guideline has particular application to employment under Part 7 of the PS Act but contains material relevant to all employment in the South Australian public sector. Additional information is provided in section 1. Introduction.”
[121] The relevant employees of the Rail Commissioner, at least in general terms, are not covered by Part 7 of the PS Act. 49 They are however for many purposes part of the South Australian Public Sector, and as set out earlier DPTI, acting on behalf of the Rail Commissioner, maintains all infrastructure and train and tram services within metropolitan Adelaide. As a result, the Guideline is relevant guidance information, but is to be considered in the context of the Discipline Procedure and any specific regulations or statutory context applicable to the Rail Commissioner as the employer of the Worker.
[122] The Guideline describes the fundamental principles, including “procedural fairness” in the following terms:
“2 FUNDAMENTAL PRINCIPLES RELATING TO THE MANAGEMENT OF UNSATISFACTORY PERFORMANCE, INCLUDING MISCONDUCT
The principles summarised in this Guideline are informed by a variety of sources, including legislation, legal principles, awards, other industrial instruments and decisions of tribunals and courts.
Certain principles summarised in this Guideline apply to all public sector employment and others relate only to Public Service employment or other public sector employment to which Part 7 of the PS Act applies. Further, this Guideline takes into account the fact that certain cohorts of public sector employees (other than those governed by Part 7 of the PS Act) are governed to varying degrees by specific legislation. ·
When managing unsatisfactory performance, including misconduct, decision makers and those assisting them must determine the fundamental employment status of the relevant employee; i.e. whether the provisions in Part 7 of the PS Act are applicable to the employment of the employee (or if some other specific legislation imposing a similar scheme to that of Part 7 of the PS Act applies) or if the employment is fundamentally governed by common law principles.
It is important to note that there is no 'one size fits all' way to manage unsatisfactory performance, including misconduct.
2.1 PROCEDURAL FAIRNESS
The rules of procedural fairness, also referred to as natural justice, apply whenever the rights, interests, property or legitimate expectations of an individual are affected by an administrative (management) decision, this includes decisions relating to the management of unsatisfactory performance or suspected misconduct.
The three basic rules decision makers must adhere to are the hearing rule; the rule against bias and the no evidence rule.
2.1.1 The hearing rule
The hearing rule demands that a person whose rights, interests or legitimate expectations may be adversely affected by an administrative decision has a right:
• to an opportunity to be heard before an intended decision is made;
• to receive all relevant information before a response or submission is provided by them or on their behalf;
• to have a reasonable opportunity to provide a response or submission; and
• for any response or submission provided by them or on their behalf to be objectively considered by the decision maker before any relevant decision is made and affected
Using alleged misconduct as an example, this in part means that an employee who is alleged to have committed misconduct must be provided with
• detailed and particularised allegations and copies of or access to information relied upon in making the allegations, and
• afforded a reasonable opportunity to respond to the allegations
It also means that where a decision maker has found on the balance of probabilities that allegations of misconduct against an employee are proven and where as a consequence they intend to impose a disciplinary sanction(s)/take disciplinary action and/or to take some other action adverse to the employee (i.e. transfer to another role or workplace):
• the decision maker must advise the employee of their findings of fact and put the employee on notice of the intended decisions; and
• afford the employee a reasonable opportunity to make submissions in respect of such intended decisions.
Any submission made by or on behalf of an employee in response to allegations must be objectively and personally considered by the relevant decision maker. A decision maker will fall into error by merely adopting ('rubber stamping') the views of another person.
Similarly, where a decision maker intends to impose a disciplinary sanction(s) or take disciplinary action against an employee on the basis of proven misconduct; or to make another decision adverse to an employee on the basis of misconduct or other unsatisfactory performance; they must put the employee and for their representative on notice as to the intended decision(s); afford them a reasonable opportunity to make submissions in response; and objectively and personally take into account any submission by them or on their behalf.
2.1.2 The rule against bias
The rule against bias requires that a decision maker should be disinterested and/or unbiased in the matter to be decided. Justice should not only be done, but be seen to be done. If a fair-minded person would reasonably suspect that the decision maker has prejudged the matter, the rule is breached (referred to as 'a reasonable apprehension of bias').
A breach of this rule is most easily established when the person who is in the position of accuser is also the decision maker; participates in the investigation/decision; or gives advice throughout the course of the matter; or the decision maker does not objectively and personally perform their role but merely adopts or 'rubber stamps' the views of others.
2.1.3 The no evidence rule
The no evidence rule means, in essence that the decision that is eventually made must be based on logical probative evidence (proven on the balance of probabilities - that is, the alleged behaviour is more likely to have occurred than not). The more serious the matter and thus the likely consequence if found to be proven, the greater the decision maker should be satisfied that they are proven as a matter of fact.
2.1.4 Sound administrative/managerial decision making
Decision makers must take into account all relevant considerations. Matters relevant in the context of this Guideline include the nature and seriousness of the alleged behaviour under examination; the procedure adopted by the decision maker in investigating suspected misconduct or managing or attempting to manage other unsatisfactory performance; evidence gathered during an investigation; the response by or on behalf of an employee to allegations of misconduct or in the context of other unsatisfactory performance; and the employee's relative seniority and general employment history.·
Decision makers must not take into account irrelevant considerations. Matters such as an employee's political beliefs, religion, sexual orientation, ethnicity, age, caring responsibilities, pregnancy, marital status, etc. would be irrelevant considerations and if considered, would amount to unlawful discrimination.
A decision maker must also act for a proper purpose and is not to exercise their power unreasonably. Reasonableness is an essential element of valid administrative decision-making. An unreasonable decision is (in the context of administrative law) 'a decision which lacks an evident and intelligible justification'.”(footnotes not reproduced)
[123] In Coutts v Close 50 (Coutts) the Federal Court set out a useful summary of the concepts of procedural fairness and natural justice in the following terms:
“114 Subject to any relevant statutory modification or variation, it is well-established that a person liable to be directly affected by an administrative decision to which the rules of procedural fairness apply must be given an opportunity of putting information or submissions to the decision-maker. For that right to have substance, the person affected must be given an opportunity of ascertaining the relevant issues, which requires the decision-maker to identify for the person affected any issue critical to the decision which is not apparent from the nature of that decision or the terms of the statute under which it is made. The obligation extends to informing the affected person of the nature and content of adverse material that is credible, relevant and significant obtained from sources other than the affected person, as well as of any adverse conclusion reached by the decision-maker in respect of which the affected person had no notice. The affected person must be given an adequate opportunity to address such new material and/or any unexpected conclusions by further information and submission (see, for example, Kioa v West (1985) 159 CLR 550 at 628-629 (Kioa v West); Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-592 (Alphaone); SZBEL v Minister of Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 162 (SZBEL) and Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 599). Generally speaking, however, and subject naturally to the particular statutory context, procedural fairness does not require that a decision maker adopt an “open file” policy which would have the effect of disclosing every submission or piece of evidence to an affected party (see, for example, Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 (South Sydney City Council)). Ultimately, the fundamental issue here is whether the applicant was given a reasonable opportunity to address issues relevant to his interests.
115 In some circumstances, procedural fairness may also require the decision-maker to disclose to the affected person information provided to the decision-maker by a third party which is relevant to the matters in issue even though the decision-maker says that the information was not taken into account in reaching an adverse decision (see in particular Applicant VEAL). As Brennan J commented in Kioa v West at 629:
Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.” (emphasis in original)
[124] Further, in Coutts, after discussing the circumstances of that case, the Court stated:
“116 (…)Although the authorities generally refer to the significance of adverse material not being disclosed, the failure to disclose exculpatory material may in appropriate circumstances constitute procedural unfairness (see, for example, Shields v Overland (2009) 26 VR 303 at [109] per Kyrou J where emphasis was placed on the situation where a decision-maker has exclusive knowledge of specific information).
117 In my view, these principles need to be balanced with the well-established rule that there is no obligation to disclose the decision-maker’s deliberative processes or proposed conclusions (see Alphaone at 590-591 and Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 69 per Gleeson CJ and Hayne J). As the High Court explained in SZBEL at 162, procedural fairness ordinarily requires “the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material” (citing Alphaone at 32, emphasis omitted).
118 Further, in my opinion, the general requirement that adverse material which is credible, relevant and significant to the decision to be made does not mean that a decision-maker must always disclose verbatim copies of material to be considered. In some circumstances, it is sufficient if the affected person is informed of the gravamen or substance of the issue. The point is illustrated by Pilbara Aboriginal Land Council Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539. In that case, Merkel J rejected an argument that the Minister had denied the Pilbara Land Council of procedural fairness in not providing the Council an opportunity to deal with adverse observations made by an assessment team in a report to the Minister prior to the Minister deciding not to recognise the Council as the representative body for the purposes of native title legislation. At [70], Merkel J stated the general principle as follows (omitting case references):
While the general rule is that a decision-maker is not obliged to comment on his or her preliminary views before making a final decision or to enable a party that is likely to be adversely affected by those views to address them prior to a decision being made, on some occasions the line between the views and conclusions of a decision-maker and the material on which they are based may be a fine one. The overriding principle is that the decision-maker must bring to the applicant’s attention the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it…It is sufficient that the gravamen or substance of the issue or factor is brought to the applicant’s attention, or that the applicant is on notice of its “essential features”….
119 In Pilbara, Merkel J held that there was no obligation to disclose the internal assessment team report because it did not raise any new matters or provide any obviously unnatural responses to, or evaluations of, matters that had previously been raised with the Land Council. Justice Merkel applied the same principle in Walton at 357, where his Honour also added at [70] that, in the particular circumstances, there was no procedural unfairness in not disclosing to the affected person information “which was not material or adverse to his interests”.
120 It is also now settled that procedural fairness is not an abstract issue; rather, attention needs to be focused on the question whether conduct which is said to be procedurally unfair produced some practical injustice. As Gleeson CJ observed in Lam (2003) 214 CLR 1 at 14:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. (emphasis added).”
[125] The rule against bias is one of the two major elements of natural justice. Although initially applied to Courts and Judges, 51 it is now well recognised as being a part of administrative law and applicable to decision-makers in that context.
[126] The practical application of the rule has been summarised by Groves 52 in the following terms:
“Actual v Apprehended Bias
Bias may take many different forms but the main distinction is between actual and apprehended bias. A claim of actual bias requires proof that the decision-maker approached the issues with a closed mind or had prejudged the matter and, for reasons of either partiality in favour of a party or some form of prejudice affecting the decision, could not be swayed by the evidence in the case at hand. A claim of apprehended bias requires a finding that a fair minded and reasonably well informed observer might conclude that the decision-maker did not approach the issue with an open mind.
These differences between actual and apprehended bias have several important consequences. Each form of bias is assessed from a different perspective. Actual bias is assessed by reference to conclusions that may be reasonably drawn from evidence about the actual views and behaviour of the decision-maker. Apprehended bias is assessed objectively, by reference to conclusions that may be reasonably drawn about what an observer might conclude about the possible views and behaviour of the decision-maker. Each form of bias also requires differing standards of evidence. A claim of actual bias requires clear and direct evidence that the decision-maker was in fact biased. Actual bias will not be made out by suspicions, possibilities or other such equivocal evidence. In the absence of an admission of guilt from the decision-maker, or, more likely, a clear and public statement of bias, this requirement is difficult to satisfy. A claim of apprehended bias requires considerably less evidence. A court need only be satisfied that a fair minded and informed observer might conclude there was a real possibility that the decision-maker was not impartial.” (references and page numbers omitted)
[127] The ARTBIU relies upon apprehended bias in this matter and in Coutts the Court observed as follows:
“97 The test for apprehended bias in the context of administrative decision-making in Australia is now well-established. That test is reflected in the following passage from the leading decision in Ebner v Official Trustee (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ (Ebner) (omitting citations):
…the governing principle is that, subject to qualifications relating to waiver…or necessity…, a [decision-maker] is disqualified if a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide.
98 Other relevant principles established by Ebner may be summarised as follows:
(a) if the decision-maker has determined the matter, the test is one which requires no conclusion about what factors actually influenced the outcome and there is no need to enquire into the actual thought processes of the decision-maker;
(b) application of the apprehension of bias principle involves the following two steps. First, the identification of what it is said might lead the decision-maker to decide a case other than on its legal and factual merits. The second step is the articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
99 It is also now generally accepted that a reasonable apprehension of bias should be firmly established and not lightly concluded: see The Angliss Group at 553-554 and Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100. Furthermore, the application of the apprehension of bias principle needs to take into account such matters as the role and functions of the person against whom the allegation is directed, as well as the nature of the power being exercised. Although the apprehended bias rule is expressed in similar terms in cases involving courts or quasi-judicial tribunals, as well as administrative decision-makers, it is well recognised that the application of the relevant principles may require appropriate adaptation in the circumstances of administrative decision-makers exercising statutory powers (see Ebner at [4] and Jia at [61]-[63] and [99] per Gleeson CJ and Gummow J).”
[128] As a result, and without being a complete statement, the approach evident from the Discipline Policy and the Guideline do each represent a reasonable starting point for the assessment of the principles of procedural fairness and natural justice for present purposes. Further, natural justice and procedural fairness in the present context are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise53 and it is the avoidance of practical injustice that is being sought. This does not diminish the importance of the principles but rather clarifies that it is not for the Commission to decide, in this case, whether the disciplinary decisions themselves were unjust, but rather whether the process that was followed was in accordance with the principles.
[129] Against that background it is appropriate to consider the main propositions advanced by the ARTBIU about the processes applied by the Rail Commissioner. In so doing it is important to emphasise that the Primary Allegations are at the point that the Rail Commissioner is considering what if any disciplinary outcome is to apply to the Worker after reaching some conclusions. This has been suspended pending the outcome of the Secondary Allegations, which are at the point of being put to the Worker. Both processes have now also been suspended as a result of the application of the dispute resolution procedure of the EA, pending this decision.
Evidence not produced
[130] The central focus for this issue is the non-supply of the records of interview (or notes of the discussions/witness statements) for the interviews conducted amongst the staff of the workplace where the Worker is engaged and the Minute to the Delegate leading to the outcomes on the Primary Allegations and the basis for the Secondary Allegations. The ARTBIU contends these are required by the principles arising from clause 20.8 of the EA and as a result of representations made in the lead up to the first interview.
[131] In terms of the statements of the witnesses, it was suggested that the absence of disclosure of the names (and/or their gender) was a critical failing given the Worker’s contention that a group of friends were advancing the allegations and that the allegations also involved alleged different treatment of women in the office concerned.
[132] The 4 June 2018 Notification to the Worker, and the discussions at the interviews, disclosed the names of the other employees who were the subject of the alleged conduct. The names not disclosed were those other employees who had also been interviewed from the workplace. Given the nature of the workplace, and the nature of the allegations, this did not deny the Worker the capacity to identify the group of friends that she considered to be involved or to suggest that other employees be interviewed. It was also not unreasonable at that point, for the Rail Commissioner not to disclose the names of the other employees interviewed (those not making or directly involved in the alleged events) given the circumstances within the Depot, the sensitivity of the matters and the potentially polarising impact of the disclosure within what may well be ongoing working relationships. Further, the capacity for an employer to undertake an investigation involving alleged workplace bullying involving at least some confidential interviews is an important consideration that must be weighed along with the other factors to be taken into account. Importantly for present purposes, in this case, the particulars of the alleged events and the identity of those actually involved in the allegations had all been provided.
[133] It would be clear from the earlier discussion about procedural fairness that the level of primary information provided to a person depends upon the circumstances. There is no rule that statements from witnesses need to be provided; the requirement is that sufficient detail of the allegations and the context be provided to permit a fair and informed response. In many cases, this will involve the identity of those said to be involved in the conduct but the sensitivity of information, and the capacity for an employer to receive statements from other employees on a confidential basis, particularly those not directly involved, is also an important consideration.
[134] Having considered the records of interview and the details advanced by the Rail Commissioner’s representatives both when making the allegations and when responding to any denials, I am satisfied that the details of the particulars were reasonable and sufficient to enable the Worker to advance a proper and informed defence on those matters.
[135] In that light, the remaining issue associated with the present aspect is the indication given to the Worker at the time of notification of the allegations that “At the interview you will be provided with full copies of the allegations; copies of, or access to, evidence and information relied upon in support of the allegations” (emphasis added). I note that this reflects the wording of the Guideline under 2.1.1.
[136] Given its normal and natural meaning, this statement would appear to suggest that the copies of all evidence and information being relied upon by the Rail Commissioner would be provided. This is to be contrasted with the equivalent terms of the Discipline policy and its reference to “full details of the allegations will be given at the investigation interview, including any relevant documentation.” I do not consider that the policy would extend to the requirement in each case for the provision of witness statements obtained during an investigation. That is, “relevant documentation” would not appear, when read in the context of the policy as a whole, to necessarily include such statements.
[137] On face value, the scope of information to be provided as stated in the letter of allegations, with its reference to copies of the evidence, would at least include the statements (or records of interview) of those making the allegations against the Worker. In that regard I note that the only “evidence” of the alleged conduct was the statements from those making the allegations. These were not provided but as set out earlier, the evidence is that the identity of those involved and the particulars of the allegations arising from those interviews were all put to the Worker.
[138] The ARTBIU contends that based upon authority, this statement created a reasonable (legitimate) expectation that the actual evidence would be provided as part of the interview process. The basic doctrine discussed in Salemi v MacKellar (Salemi)54 as relied upon by the ARTBIU is that Where A relies on the words or actions of B to believe they will get X result, but is in fact denied X result, A may argue that a ‘legitimate expectation’ entitles them to natural justice as to B’s decision to deny X. 55
[139] Salemi 56 is also authority which suggests that statements of policy as a rule do not create legal obligations. However, the letter of allegations does not appear to fit that category.
[140] In the present context, this would mean that the Worker was given a reasonable expectation that she would be provided with copies of the actual evidence and was entitled to natural justice in terms of the reasons for not doing so.
[141] In this case, the Rail Commissioner advised the Worker (and Ms Brown) that it was not obliged to provide the actual statements and given that the allegations included workplace bullying it would not be doing so. This appears to meet the obligations referenced in Samemi. However, I also need to consider that a large, resourced employer has provided an indication that it would do something as part of the interview process and has not fully done so.
[142] Whilst not without reservations, having regard to the measures already taken to provide the details of the Primary Allegations and the other steps associated with these allegations, I do not consider that the failure to provide the statements as, in effect, indicated in the allegations letter, has breached the principles required by clause 20.8 of the EA. In this particular case, it has not led to practical injustice.
[143] However, I have formed a different view about the impact of the process leading to the Secondary Allegations based upon the proper application of the relevant principles, irrespective of any terms set out in the allegations letters. That is, the Secondary Allegations appear to be treated by the Rail Commissioner as a matter of further allegations continuing the original process. In that light, the statements made in the original allegation letter about the provision of copies of the evidence would appear to remain relevant; however, what follows is not dependent upon any view that might be taken in that regard.
[144] The Secondary Allegations are very serious and involve the contention that the Worker has deliberately tried to mislead the Rail Commissioner. The basis of the Secondary Allegations was set out in correspondence to the Worker dated 20 February 2019. 57 In general terms, the particulars make it clear that the Rail Commissioner has formed a contrary view about the Worker’s responses to the Primary Allegations. It is evident that the basis for that view is the findings in the relation to the Primary Allegations, and by implication, the materials and evidence provided in that context.
[145] I consider that at the point that the Rail Commissioner intends to rely upon the earlier conclusions, procedural fairness then requires that the actual evidence being relied upon should be provided to permit a fair opportunity to advance a defence. That is, without all or most of the actual evidence and the basis of the conclusions reached, which directly underpin the Secondary Allegations, the Worker is being denied a proper opportunity to understand the basis of the new allegations; being the foundation for the conclusions about the Primary Allegations. Further, without that material, the process to deal with the Secondary Allegations will be little more than a superficial repeat of the original process.
[146] As a result, I consider that the proper application of the principles required by clause 20.8 of the EA requires that the actual evidence relied upon to support the findings in the Primary Allegations, and the report to the Delegate, be provided to the Worker as part of any fair process to deal with the Secondary Allegations. I observe that this would not necessarily mean that there could be no redacting of personal information and names; however, such would need to be limited and ensure that the substantive evidence is provided to enable a fair and informed response to be given.
Not notified of all of the allegations in advance
[147] In essence, the ARTBIU contends that there were matters, which were found to have been substantiated, that were not set out in the original allegations establishing the disciplinary process.
[148] For reasons set out earlier, the critical issue here is whether, prior to the forming of any conclusions, the Worker was advised of the allegations and had a reasonable opportunity to address them. It does not matter that these were not in the original notice, provided the details were put in an appropriate manner before a final response was sought. Indeed, it is reasonable and appropriate that as other matters emerge from the investigation the substance of these are put to the employee concerned if they are to influence the findings in any meaningful way.
[149] At least in relation to the Primary Allegations, I do not consider that the Worker has been denied either procedural fairness or natural justice by virtue of the timing and manner of the notification of the allegations. I will return shortly to the Secondary Allegations.
Apprehended bias due to the initial involvement of the Team Leader and the continuing involvement of Mr Nikoloski
[150] The Team Leader works in the Glengowrie depot along with the Worker and approximately 100 other staff. The Team Leader became the conduit to management for the complaints being made against the Worker, as would be consistent with her role in the depot.
[151] The Team Leader was consulted by Mr Nikoloski, who was coordinating the investigation that was undertaken, and those other persons in the depot who were interviewed as part of that process were identified by the Team Leader and those making the complaints.
[152] In July 2018, after the first three interviews, which were also attended by the Team Leader and Mr Nikoloski, the Worker spoke to the then Acting Chief Executive and expressed concerns about what she considered to be bias from the Team Leader. This bias was said to result from two elements; namely, that the Team Leader had a “negative history” with the Worker’s mother (who had earlier been an employee of the Rail Commissioner) and that the Team Leader was friendly with the group of employees whose names had been raised in connection with the allegations. During the course of the investigation, the Worker also alleged that she was being bullied by the Team Leader.
[153] In response to these concerns, the Rail Commissioner organised a further investigation meeting with two different interviewers; being Mr Wright and Ms McClure. The Team Leader was not involved from that point. The investigation was not recommenced from scratch and relied upon the materials, processes and interviews conducted to that point. The further interview was however an opportunity for the Worker to raise further matters and advance further responses in the absence of the Team Leader.
[154] At the further interview, the Worker, in effect, confirmed her original responses to the allegations and following the provision of the transcript of interviews to that point, at an additional interview the Worker also raised some shift changes that had apparently occurred without notice. Ms Brown, on the Worker’s behalf, further raised concerns about access to the documents and contested whether one of the alleged events could have taken place at all given the Worker’s location on the day in question.
[155] Mr Nikoloski has, in effect, coordinated the investigation and was involved in arranging the original interviews and preparing the information for the Delegate.
[156] The evidence is that the Team Leader and Mr Nikoloski are not decision-makers in the investigation process. This includes that Mr Nikoloski made no recommendations in his report to the Delegate and any observations as to the options merely set out the range that was available. I would however accept that who was interviewed, the manner in which the “evidence” is summarised and any advice provided to the decision-maker could influence the outcome.
[157] In this case, when issues of bias were raised, the Team Leader was removed from the process and although the material already gathered was not thrown away, there was a further opportunity given to the Worker to make additional submissions and to suggest additional matters and persons who might be interviewed or investigated. The Rail Commissioner was made aware of the allegation of bias and the fact that it took steps to change the interview team and provide the further opportunities to the Worker form part of the process to be taken into account by the Delegate.
[158] In all circumstances of this case, I do not consider that the Worker has been denied natural justice by virtue of apprehended (or other) bias.
The Secondary Allegations were not reasonably open as a matter of natural justice
[159] This aspect is built in part upon the criticisms of the process leading to the findings on the Primary Allegations and the circumstances and justification for the making of the Secondary Allegations. I have already dealt with the Primary Allegations.
[160] In terms of the circumstances and justification for the Secondary Allegations, I would accept that where an employer forms a view that they were deliberately misled by an employee during an investigation, this can properly form the basis for further allegations. However, if those allegations are founded on preference for one version of an event over another, without the support of objective evidence, this approach should be considered with caution. That is, in most cases, the investigations involve an administrative process where no sworn evidence is taken or subject to testing through any open process. In the absence of any genuinely independent objective evidence, it is a very significant matter to make a finding that the employee deliberately attempted to misled the employer.
[161] In this case, the Delegate has formed a preliminary view based upon the conclusions reached in connection with the Primary Allegations. The process to form any final view is still in progress.
[162] Dearman v Dearman, 58 as cited by the ARTBIU, does not stand for the claimed proposition. It is directed at the advantage (and disadvantage for appellant courts) in decision makers having heard the evidence of witnesses when assessing their credibility. It does not mean that a decision maker, particularly one making an administrative decision of the kind being considered here, cannot fairly reach conclusions based upon reports and materials obtained by others. I observe that whether those conclusions are correct, may be a different matter but that is beyond the scope of the present proceedings.
[163] The ARTBIU also relied upon the principles of “Wednesbury reasonableness” to impugn the process. In making an administrative decision, Wednesbury Unreasonableness will be found if the decision maker:
• takes into account factors that ought not to have been taken into account, or
• fails to take into account factors that ought to have been taken into account, or if
• the decision is so unreasonable that no reasonable authority would ever consider imposing it. 59
[164] It is this latter aspect that the ARTBIU particularly emphasises in the present context.
[165] This principle has been incorporated into Australian administrative law, see for example Parramatta City Council v Pestell:
"If, in purporting to form its opinion, a (decision maker) has taken into account matters which the Act, upon its proper construction, indicates are irrelevant to its consideration, or has failed to take into account matters which it ought not to have considered, the opinion will not be regarded as validly formed. Even if the (decision maker) has not erred in this way an opinion will nevertheless not be valid if it is so unreasonable that no reasonable (decision maker) could have formed it.” 60
[166] A decision should not be framed as unreasonable simply because one party disagrees with the outcome. The unreasonableness is ideally found by reference to the statutory framework, or other legal principles, underpinning the decision making process, as explained by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002:
"As was pointed out in Minister for Immigration and Multicultural Affairs v Eshetu, to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence." 61
[167] In Minister for Immigration and Citizenship v Li 62 the High Court considered the standard of unreasonableness applicable to such decision-making and took a somewhat broader view. The majority,63 in considering the formulation of unreasonableness stated in Wednesbury, said that the legal standard of unreasonableness “should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it”.64 Further, “Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.65
[168] In this case, I do not consider that it is unreasonable for the Rail Commissioner to make and investigate the Secondary Allegations. However, the factors relied upon by the ARTBIU in this matter, subject to the observations made in this decision, are very relevant considerations as to whether the employer could or should ultimately make the findings that it has foreshadowed.
The basis for allegation 9 was not put separately or in advance and was not open as a matter of natural justice
[169] I have addressed some of the elements of this aspect above. These allegations arise from the conclusions in relation to the Primary Allegations and as such need to be put after they have been made.
[170] There is no sense of entrapment here and it would have been clear that a formal investigation was being conducted and that the responses being provided by the Worker were to be relied upon by the Rail Commissioner.
[171] Subject to the earlier caveats about the Secondary Allegations, I do not consider that there is any other basis to find that the principles of natural justice or procedural fairness have not been afforded to the Worker in this regard.
The internal appeal process
[172] I am advised by both parties that there is a Guide in place which provides an avenue of appeal from any final disciplinary decision of the Delegate that involves the imposition of a sanction. Although tram employees, such as the Worker, do not fall within its scope, it has been applied administratively to such employees by the Rail Commissioner.
[173] The ARTBIU contend that the internal appeal is not relevant to this dispute as there is no absolute right to access the process and, in any event, is not presently available to the Worker. Further, it suggests that the appeal process is about the merits of the matter, not about the process and its adherence to the relevant principles required by clause 20.8 of the EA. The ARTBIU also notes that whilst the appeal is not relevant, during such an appeal process any documents connected to the matter would be provided to the employee under the terms of the Guide.
[174] The Rail Commissioner contends that the internal appeal is applied administratively and that it provides a safety net for employees, including the capacity to deal with an injustice from a perceived failure of natural justice and procedural fairness. The Rail Commissioner also contends, in effect, that the existence of the internal appeal means that this application is premature as that appeal forms part of the process and is capable of dealing with any procedural or natural justice deficiencies. Further, it contends that if the internal appeal guideline is not relevant, then all other policy considerations should also be considered to be irrelevant.
[175] Whilst the potential for an internal appeal is relevant to the present consideration, I do not consider that it impacts upon the determination of this matter, given the basis upon which any internal review might operate and the terms of the EA. That is, I accept that the Guide appears to contemplate an appeal about the disciplinary decision more generally, including issues of procedural fairness and natural justice matters. However, it is an appeal of a final decision that has already been made and clause 20.8 of the EA requires the relevant principles to be applied “at all times” in the disciplinary process. Further, there is also no absolute right to such an appeal and it may not be available to the Worker, depending upon the outcomes determined by the Delegate. In these circumstances, the existence of the internal appeal does not in any way detract from the obligation to apply the principles required by clause 20.8 of the EA to the decision making process of the Delegate.
[176] I also do not consider that because, after a final decision is made, all of the documentation and evidence may be provided to the employee concerned, is significant in assessing whether, in a given case, the supply of all of that material during an investigation that is underway is required by principles set out in clause 20.8 of the EA. Different considerations apply to an appeal of a decision already made.
7. Conclusions and determination
[177] On balance, I do not consider that the Rail Commissioner has failed to apply the principles of natural justice or procedural fairness, including the right to representation, to the Worker in relation to the Primary Allegations. However, in relation to the Secondary Allegations, I do consider that the present process falls short of what is required by clause 20.8 of the EA. I have also made some observations about any findings that might ultimately be considered by the Rail Commissioner in relation to allegations of that kind.
[178] As a result, I consider that should the Rail Commissioner intend to press ahead with the Secondary Allegations, it must provide a full opportunity to the Worker to provide a proper response after having been provided with the actual evidence and information being relied upon to support those allegations, subject to the caveats outlined earlier in this decision.
[179] In all of the circumstances, including my findings and the terms of the EA, it is not appropriate in this matter for the Commission to determine whether the Rail Commissioner should pursue the Secondary Allegations.
[180] I consider this to be the proper application of clause 20.8 of the EA in the context of this dispute. I so determine.
[181] Given these conclusions and the concessions made by the ARTBIU about its proposed orders, it is not necessary to deal with the jurisdictional issues raised by the Rail Commissioner.
[182] I should also make it clear that I have not considered the substantive merit of any of the allegations or those made in response by the Worker. The Worker has also advanced a comprehensive defence and the Commission’s present role does not involve consideration of any evidence, or the formation of views, about the substance of the matters. Further, the process in relation to the Secondary Allegations is yet to be undertaken as required by the EA.
[183] Finally, I observe that my view about the requirements to disclose the actual “evidence” and materials relied upon with respect to the Secondary Allegations arises from the particular nature of those allegations and the context in which they arise; rather than the notion that such material must be provided to meet the principles of natural justice and procedural fairness as a matter of course in other circumstances. Each disciplinary process and case turns on its own facts and circumstances.
COMMISSIONER
Appearances:
M Diamond with M Davis for the Australian Rail, Tram and Bus Industry Union.
S Bakewell with P Chesser of EMA Consulting (with permission), for the Rail Commissioner.
Hearing details:
2019
Adelaide
11 June.
Final written submissions:
ARTBIU – 10 and 12 July 2019.
Rail Commissioner – 12 and 17 July 2019.
Printed by authority of the Commonwealth Government Printer
<AE428719 PR709113>
1 I have not disclosed the names of the employees involved in relation to the allegations, including the worker, for reasons that will be outlined shortly.
2 Outline of Submissions of the Applicant, 21 May 2019.
3 Outline of Submissions of the Applicant, 21 May 2019
4 Revised Directions were issued on 30 April 2019 which altered the due date but not the substance of this direction.
5 Attached to email from ARTBIU received 23 April 2019.
6 Attached to email from ARTBIU received 23 April 2019.
7 Clause 48.12 of the EA.
8 Under the legal and administrative arrangements in place, a person (the Delegate) has delegated authority to make decisions on behalf of the Rail Commissioner.
10 This email also communicated that permission would be granted for the Rail Commissioner to be represented at the hearing.
13 Rule 12(1) of the Fair Work Commission Rules 2013, in effect, provides permission for a party to be represented for the purposes of preparing and lodging written submissions.
14 The Fair Work Commission Rules 2013, in effect, provide permission for a lawyer to file documents and provide written submissions in relation to a matter before the Commission. That permission does not extend to a hearing of this nature.
16 [2013] FCA 291.
17 See also Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 at [19].
18 See also Calleri v Swinburne University of Technology [2017] FWCFB 4187 at [36].
19 Respondent’s Submissions - Permission to Appear, 29 April 2019.
20 Applicant’s Response - Leave to Appear Submissions, 3 May 2019, [2].
21 Made during the hearing and confirmed in PR710566.
22 The Respondent identified these persons as Employee X and Employee Y during the investigation process and their identity has been subject to a confidentiality Order
23 Exhibit RTBU 2 at KB 9 - Record of Interview, 21 August 2018 at pages 2, 3 and 4.
24 Exhibit RC2 at [65].
25 Exhibit RC1 at [8].
26 Annetts v McCann (1990) 170 CLR 596, 598 [2] per Mason CJ, Deane and McHugh JJ.
27 State of South Australia v O’Shea (1987) 163 CLR 378, 389 per Mason CJ,
28 Kioa v West (1985) 159 CLR 550, 562 - 563 [11] per Gibbs CJ (‘Kioa’).
29 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 per Gleeson CJ at 13-14 [37].
30 Kioa (1985) 159 CLR 550 at 585-586, [35] per Brennan J.
31 Exhibit RTBU1 pg 8.
32 Relying upon Salemi v Mackellar (No.2) (1977) 137 CLR 396, 403,15.
33 Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223.
34 Citing Dearman v Dearman (1908) 7 CLR 549 at 551 and 553. (Griffith CJ).
35 Section 739(5) of the FW Act provides, amongst other matters, that the Commission must not make a decision that is inconsistent with the instrument (the EA) that applies to the parties.
36 Citing Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200.
37 Citing Holland v Omega Plumbing Pty Limited [2013] FWC 1843 at [9].
39 [2018] FCAFC 131.
40 Ibid at [197].
41 AB v Tabcorp Holdings Limited [2015] FWCFB 523 at [11].
42 See Construction Forestry Mining and Energy Union v The Australian Industrial Relations Commission and Another [2001] HCA 16; (2001) 203 CLR 645, Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019 and Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82.
43 AMWU v Berri at [114] – paras 12 to 14.
44 AMWU v Berri at [114] 7 – 9.
45 Section 387 of the FW Act.
46 Exhibit RC2 – document DN2.
47 Annexure DN2 to Exhibit RC2.
48 Exhibit RTBU 2 – document KB16.
49 A distinction is drawn between employment in the Public Service and that in the broader Public Sector; although employment outside of the public service may be covered under Part 7 of PS Act through regulations – s.41 of the PS Act.
50 [2014] FCA 19, per Griffiths J.
51 The approach is well summarised in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 and Kirby v Centro Properties Limited (No 2) (2011) 202 FCR 439.
52 Groves M, The Rule against Bias [2009] UMonashLRS 10.
53 Kioa (1985) 159 CLR 550, 622, [27] (Brennan J).
54 [1977] 137 CLR 396.
55 Kioa And Others v Minister For Immigration (1985) 62 ALR 321 at 345.
56 [1977] 137 CLR 396 at 406 per Barwick CJ.
57 KB10 - part of exhibit RTBU 2.
58 Dearman v Dearman (1908) 7 CLR 549 at 551 and 553.
59 Adapted from Associated Provincial Picture Houses Ltd v Wednesbury Corp, [1948] 1 KB 223, 229 (per Lord Greene MR).
60 (1972) 128 CLR 305 at 327 per Gibbs J.
61 (2003) 198 ALR 59 at [5].
62 (2013) 249 CLR 332.
63 Per Hayne, Kiefel and Bell JJ.
64 (2013) 249 CLR 332 at [68].
65 Ibid at [76]. See also the summary provided by the Full Federal Court in The Minister for Immigration v Eden (2016) 240 FCR 158 at [58] to [65] and how the concept was applied by the Commission in another context in Amie Mac [2015] FWC 774 at [90].