Fair Work Act 2009

s.739 - Application to deal with a dispute

Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia Division

Kalmar Equipment (Australia) Pty Ltd Trading AS Kalmar Equipment

Application for Commission to deal with a dispute in accordance with a dispute settlement procedure in an enterprise agreement - incorporation of discipline and termination procedure into an agreement - use of third party to investigate workplace complaint against employee -whether investigation process is precluded by the terms of the discipline and termination procedure clause in agreement

• [1] Between 29 March and 3 April 2025, Kalmar Equipment (Australia) Pty Ltd (Kalmar, or respondent), received a complaint from one of its employees, Mr. Knox, about the alleged conduct of another of the respondent's employees, Mr. Kamenjasevic. The complaint found its way to the respondent's Director of Services, Oceania, Mr. Stapylton. Mr. Stapylton consulted with the respondent's human resources staff and directed that an external business, iHR Australia (iHR), be engaged to assist in dealing with the complaint.

• [2] A representative of iHR met with Mr. Knox on 16 April 2025 to obtain information about the complaint. On 23 May 2025 the iHR representative wrote to Mr. Kamenjasevic introducing themselves and providing particulars of the complaint that had been made against him. The representative asked Mr. Kamenjasevic to participate in an interview in relation to the complaint. Mr. Kamenjasevic has not participated in an interview or otherwise spoken with the iHR representative.

• [3] The correspondence from iHR to Mr. Kamenjasevic of 23 May 2025 included an information sheet about the investigation process which contained the following:

Following the lodging of a complaint, a decision has been made to conduct an

independent investigation. This document helps the complainant, respondent, witnesses and support persons to understand the processes to be followed and the role of the investigator.

Kalmar Global has engaged an independent, impartial investigator from iHR Australia, Ms Marie Irwin.

The investigator will ensure the observance of the principles of natural justice and procedural fairness.

The investigation process usually involves these steps:

1. Reviewing evidentiary material provided by the parties regarding the allegations;
2. Interviewing relevant witnesses;
3. If necessary, re-interviewing the parties to the investigation;
4. Considering all relevant evidence and preparing an investigation report containing findings.

The investigator will make findings on the civil standard of proof. Briefly, this means that taking into account the available evidence, an allegation will be substantiated if the investigator considers that it is more probable than not that the alleged conduct occurred.

• [4] Mr. Kamenjasevic and Mr. Knox are members of the Construction, Forestry and Maritime Employees Union (Union), the applicant in these proceedings.

• [5] An enterprise agreement called the Kalmar Equipment (Australia) Pty Ltd and Maritime Union of Australia (MUA division of the CFMMEU) Port Botany Facility Enterprise Agreement 2022 (Agreement) applies to the Union, the respondent and the respondent's employees including Mr. Knox and Mr. Kamenjasevic.

• [6] The Union has now applied to the Commission under s.739 of the Fair Work Act 2009 (Cth) (Act) to deal with a dispute under the terms of clause 56, Dispute Resolution Procedure, of the Agreement. The Union says that the respondent has not complied with the terms of clause 67, Company Discipline & Termination Procedure, of the Agreement in relation to the handling of the complaint. The Union says the respondent is prevented by that clause from 'contracting out' to a third party either an investigation into the allegations made in the complaint, the authority to determine whether the allegations in the complaint are substantiated or the determination of whether any substantiated allegations constitute either a breach of company policies or misconduct. The Union seeks a determination from the Commission to that effect.

• [7] The respondent disputes the allegation that it has not complied with clause 67. It says that the complaint is being dealt with under the terms of two of its policies, the 'Grievance Handling Policy' dated November 2028 (Grievance Policy) and the 'Workplace Behaviour Policy' also dated November 2018 (Behaviour Policy). It says that these policies do not preclude the use of external parties in an investigation process and that on a proper construction of the Agreement, clause 67 is concerned with circumstances where deficiencies in performance or conduct have been substantiated and disciplinary action is being considered, rather than the antecedent process of investigating allegations that have yet to be made out. The respondent contends that because Mr. Kamenjasevic has not yet engaged in the investigation process, the processes in clause 67 which provide for various forms of disciplinary action that may be imposed, have not yet been enlivened. In response to the application, the respondent seeks a determination that they be able to continue with their investigation into the complaint and that as part of that investigation, that they may continue to engage iHR to undertake the fact-finding process necessary to deal with the complaint.

• [8] Before setting out and considering the submissions in greater detail, it is necessary to record the relevant details of the provisions of the Agreement and the policies that relate to the dispute.

• [9] Clause 56 of the Agreement provides, relevantly:

• 56.1 In the event of any matter, breach and/or dispute arising under this Agreement, and/or in relation to the interpretation or application of this Agreement or the National Employment Standard, or any matter arising in the course of employment, the procedure set out below will apply. To avoid doubt at all stages in this procedure an employee may be represented by a person of their choice.

• 56.1.1 Step 1: The matter will in the first instance be discussed between the Employee/s and the immediate Supervisor involved.

• 56.1.2 Step 2: It will be referred for discussion between the Union delegate or other employee representative, and the local supervisor.

• 56.1.3 Step 3: It will be referred for discussion between the appropriate State Union Branch Official or other employee representative and the State Management Official.

• 56.1.4 Step 4: It will be referred for discussion between the appropriate National Union Official or other employee representative and the nominated National Management Representative.

• 56.1.5 Step 5: In the event that the preceding steps have failed to resolve the matter and/or dispute, any person bound and/or covered by this Agreement may refer the dispute to Fair Work Commission (FWC) for conciliation and/or arbitration pursuant to Section 739 and Section 595 of the Act.

• [10] Clause 64 of the Agreement incorporates the terms of the respondent's discipline and termination policy into the Agreement. It provides:

• 64.1 The Company discipline and termination policy and procedure shall be incorporated in this Agreement as it applied on 14th December 2011. A copy of the policy is attached in PART IX.

• [11] Part IX referred to in clause 64 above consists of Clause 67. The clause is lengthy and poorly constructed but because it is central to the determination of the matter, I propose to set it out in full. Clause 67 is in the following terms:

67 COMPANY DISCIPLINE & TERMINATION PROCEDURE

• 67.1 Purpose: This policy is designed to ensure that when discipline and termination issues arise, employees are treated fairly and equitably. It also aims to ensure that Managers involved in the disciplining and termination of employees meet industrial law standards for termination of employment. This applies both to the reason for the dismissal and the manner in which the dismissal is carried out. At all times an employee has the right to a representative of their choice to be present during any meeting that can have an outcome of disciplinary action.

• 67.2.1.1 There are a wide range of reasons for disciplining an employee, however, they will generally fall into, but not be limited to, one of the following categories:

• 67.2.2.1 An employee's performance is considered to be inadequate if the employee is not meeting the inherent requirements of the position as set out in the duty statement/position description, or has not achieved a satisfactory rating in one or more key result areas of his/her performance plan.

• 67.2.4 Misconduct includes but is not limited to:

• 67.2.4.2 Actions involving harm (or the real possibility of harm) to any employee,

• 67.2.4.4 verbally abusing a person at the workplace.

• 67.2.5.1 Serious misconduct is conduct of such a serious nature that it warrants instant dismissal. This includes but is not limited to:

• 67.2.5.2 causing violence or harm to any employee, supplier, contractor or customer;

• 67.2.5.4 theft from the company, a supplier, co-worker, contractor or customer;

• 67.2.5.6 knowingly acting in an unsafe manner;

• 67.2.5.7 instances of sexual harassment that constitute assault;
• 67.2.5.8 racial or religious vilification

• 67.2.5.9 accessing pornography from the Internet;

• 67.2.5.10 breaches of the drug and alcohol policy;

• 67.2.5.11 knowingly attending for work in an unfit state (refer Fitness for Work Policy);

• 67.2.5.12 deliberately spoiling or damaging product;
• 67.2.5.13 accepting an advantage in relation to the company affairs or business without prior consent of management;

• 67.2.5.14 refusal to carry out the lawful instructions of a Manager.
• 67.2.5.15 Other acts may also constitute serious misconduct, depending on the circumstances of the case.

• 67.3.1 The appropriate level of disciplinary action will depend on the seriousness of the performance or conduct problem. The following levels of disciplinary action are available.

• 67.3.1.1 Verbal warning - for Minor offences. Informal Counselling may be used at any time a supervisor considers it appropriate and will not be considered a formal warning. Informal Counselling is unlikely to be used in cases of misconduct. Formal Counselling sessions are to be confidential between the supervisor and employee, however, the employee has the option for a representative of their choice to be present. A formal verbal warning may result from a Formal Counselling meeting.

• 67.3.1.2 Written warnings - for more serious offences, or failure to respond to a verbal warning.

• 67.3.1.3 Dismissal - for serious misconduct, or failure to respond to previous warnings.

• 67.4.1 Suspension from duty may be appropriate where an incident or allegations requires investigation or review prior to action being taken. Suspension will be on full pay and without prejudice.

• 67.6 This procedure covers all employees who are not covered under disciplinary procedures within their relevant Award/site agreement. Where an employee is covered by an award/site agreement, the process listed in the relevant award/site agreement should be followed.

• 67.7 Where a Manager has concerns about an employee's performance or conduct (excepting serious misconduct - see above), a Formal Counselling session should be held.

• 67.7.1 The Manager should outline in clear and specific terms the problem with the employee's performance or conduct. The Manager should tell the employee what the required standard of performance or conduct is, and explain why it is they are not meeting the required standard.

• 67.7.2 The employee should then be given the opportunity to respond to the Manager's concerns. The Manager should listen to, and make a record of the session.

• 67.7.3 Together the Manager and the employee will attempt to prepare a Remedial Action Plan. This will include:

• 67.7.4 Required improvements in performance or conduct.

• 67.7.7 Where appropriate, a review date should be set.

• 67.7.8 The employee should be told that if he or she fails to improve their performance or conduct, they will be subject to further disciplinary proceedings.

• 67.8 If the employee fails to rectify his or her conduct within the required period, the Manager will then require the employee to attend a meeting at which an official warning will be given. An official warning will be the appropriate first step in more serious breaches.

• 67.8.1 The Manager must consult with the Country HR Manager or HR Coordinator prior to moving to this stage.

• 67.8.2 The Manager should inform the employee prior to the meeting of his or her concerns with the employee's conduct or performance. The employee should be told the time and place of the meeting, and advised that they may have a work colleague accompany them to the meeting as a support person/witness.

• 67.8.3 At the meeting the Manager will outline the nature of the problem(s) and give the employee the opportunity to respond. The Manager should listen to, and make a record of, the employee's response.

• 67.8.4 If the employee's response is not adequate, the Manager will present the employee with an official written warning. The warning should state:

• 67.9 the behaviour/actions of individual concerned.

• 67.10 the impact it has on The Business/work environment

• 67.11 refer to all previous verbal warnings (if any) and their dates,

• 67.12 the corrective action that is required,

• 67.12.1 what action will be taken if the employee does not remedy the problem (when issuing a first warning, the warning should state that if the problem is not remedied within a specified period then the employee will be issued with a further warning and may ultimately be dismissed),

• 67.13 an agreed date for review should be set,

• 67.14 state that the written warning will be filed in the employee's personnel file.

• 67.15 The Manager should then monitor the employee's performance or conduct to determine whether he or she is making the required improvement.

• 67.16 In matters of a less serious nature, a second written warning may be appropriate. Dependant on the nature of the issue, further counselling and warnings may be issued.

• 67.17 If the employee has failed to respond to previous verbal and/or written warnings, then the next step is to issue the employee with a final written warning. This should only be done after consultation with the Country Human Resource Manager or the HR Coordinator.

• 67.17.1 An interview with the employee should be held, with one other representative of management attending as a witness. The employee must be offered the opportunity of having a work colleague present as a witness/support person. Detailed notes of the interview should be taken by one of the management representatives, and these should be typed up immediately following the meeting and signed by those present as a true and accurate account of what took place. All present will receive a copy of the record of interview. If the employee refuses to sign the copy, this should be noted accordingly.

• 67.17.2 The Manager should refer to previous verbal and written warnings, and outline the deficiencies in the employee's performance or conduct. The employee should be asked if there is anything that he/she wishes to say in response to the allegations.

• 67.17.3 After the employee has been heard, management will decide what outcome is appropriate, and inform the employee of their decision. If further investigation is required, the employee may be suspended from duty on full pay. If this is the case, then it may be necessary to conduct a further interview with the employee, before a final written warning is issued.

• 67.17.4 The final written warning should refer to previous verbal and written warnings, outline the deficiencies in the employee's conduct or performance, and state what improvements are required and by when. The final written warning should state clearly that if the employee's performance or conduct fails to improve, then the employee will be dismissed.

• 67.17.5 Note that if a breach is serious enough, it is possible to issue a first and final warning to an employee.

• 67.18 If the employee fails to respond to a final written warning, or in circumstances warranting summary dismissal (see below), termination of employment is likely to be appropriate. The decision to terminate should only be made with the consent of the Country Human Resource Manager.

• 67.18.1 The Manager should then request the employee attend an official meeting. Again, there should be two representatives of management at the meeting, the employee must be offered their entitlement to a representative of their choice to be present, , and the meeting should be documented as described above. At the meeting the Manager should outline the concerns with the employee's performance or conduct; including:

• 67.18.2 that the employee's conduct or performance has not improved,

• 67.18.3 the steps the employer has taken to remedy the problem in the past (e.g., previous counselling, warnings, training etc),

• 67.18.4 the time and location of the meeting,

• 67.18.5 the fact that the employee is entitled to be accompanied by a person of their choice; and

• 67.18.6 the fact that, unless the employee can adequately explain his or her conduct or performance, he or she may be dismissed.

• 67.18.7 It is then very important that the Manager listen to the employee's responses as objectively as possible. The Manager should then ask the employee and their support person to step outside while the situation is reviewed by the management representatives. The Country HR Manager must be consulted at this point.

• 67.18.8 If the employee's response is considered to be adequate, then the Manager should inform the employee that they will remain employed but that the employee's performance or conduct will continue to be closely monitored for a specified period of time.

• 67.18.9 If the employee's response is considered inadequate, the Manager has two options:

• 67.18.10 issue the employee with a final written warning; or

• 67.18.11 verbally inform the employee that he or she is to be dismissed, then follow this up immediately with a written notice of termination. The notice should state the reasons for the dismissal and the history of warnings given previously

• 67.20 Warnings issued to employees will be placed on their personnel file. The Company recognises that a warning may no longer be considered to be active after a period of time has elapsed without further disciplinary action.

• 67.20.1 The period of time that a warning will remain active will vary from case to case however will not remain in force for more than 12 months, depending on the seriousness of the breach. Consultation with the Country Human Resource Manager should occur to clarify this point.

• [12] Clause 58 of the Agreement provides:

1. Company Policies and Procedures of an administrative and procedural nature shall apply as they existed at the date of the approval of this Agreement; and

1. Policies, such as the Discipline and Termination Policy may be incorporated by reference as they existed at the date of the making of the agreement. Policies incorporated by reference cannot be amended without the agreement of the Union.

• [13] The Agreement makes a distinction between the Discipline and Termination Procedure and other company policies and procedures of an administrative and procedural nature. The former is expressly incorporated as a term of the Agreement by the operation of clauses 58b and 64. It appears as clause 67. Neither party contended that Clause 58a had the effect that the terms of other policies, such as the Grievance Policy and the Behaviour Policy, were incorporated into the Agreement, as opposed to simply preserving the content of the respondent's policies as they existed at the date of approval. On a proper construction of the Agreement, clause 58a preserves the content of the policies as at a particular date. The terms of those policies accordingly do not form part of the Agreement and operate as company policies only.

• [14] The respondent's Grievance Policy provides relevantly as follows:

This policy clarifies the process for dealing with employee grievances.

We also acknowledge that problems can arise at work which may sometimes cause you to feel aggrieved. These problems can arise from the behaviour or decisions of management or other employees. The purpose of this policy is to allow you to have such problems, referred to as "grievances", addressed by the Company in a timely and confidential manner. This can avoid the need for employees to go outside the company for assistance.

A grievance can be about anything done, or not done, by management or another employee or employees, which you feel affects you unfairly or unjustly.

Once a formal complaint is made, the matter will be investigated by a Senior Manager (a member of the leadership team appointed to investigate this specific grievance). If the Senior Manager feels that there is a reason why they should not conduct the investigation (eg, they may be a friend of the person complaint about), then another Senior Manager will conduct the investigation. The investigating Manager will then interview you, any witnesses, the person against whom the complaint is made, and that person's supervisor. You and the person against whom the complaint is made may have a support person with you when the interview is being conducted.

If the complaint is substantiated, the appropriate action will be taken (see below).

If the complaint is unsubstantiated, you will be given an explanation as to why that finding was made.

If the investigation reveals that your complaint is valid, a number of actions may be taken, depending on the nature of the complaint. The person against whom the complaint is made may be required to give you a written apology; he/she may be given a written warning, counselling, transfer, demotion, or be dismissed.

If the investigation is inconclusive, ie the complaint cannot be proved due to lack of evidence, the company may nevertheless take a number of actions. These may include training of all staff, and monitoring behaviour of all staff.

• [15] The Behaviour Policy provides relevantly as follows:

If you make a complaint of workplace harassment it will be treated very seriously and will be dealt with sympathetically and promptly, in a confidential manner. All parties will be given the opportunity to present their point of view, be treated impartially, respond to any allegations made against them and be accompanied by a support person. The complaint will be investigated and, if found to be proved, appropriate warnings or other disciplinary action will be taken against the harasser.

• [16] The Union maintains that clause 67 above is the procedure that Kalmar must utilise when a manager 'has concerns about an employee's performance or conduct.' The Union submits that the purpose of the clause is to ensure that managers sit down with employees individually and resolve issues related to performance or alleged misconduct.[1] They say that consistent with the terms of the clause, the manager must meet with the employee to discuss the concerns, give the employee an opportunity to respond and, together with the employee, prepare a remedial action plan. The Union says that the present complaint does not raise issues of serious misconduct and in that case, the required procedure for dealing with the matter is set out in clauses 67.5 to 67.7.8. They say that rather than following this procedure which was expressly bargained for and agreed as a term of the Agreement, Kalmar has subverted the process by engaging iHR to investigate the allegations, determine whether the allegations have been substantiated and determine whether the substantiated allegations amount to a breach of Kalmar's policies.

• [17] The Union submits that the disciplinary procedure in clause 67 of the Agreement is one of direct engagement between the manager and the employee and is deliberately designed to be remedial or corrective in nature rather than punitive. They say that the approach of introducing a third-party investigator to investigate, make findings of fact on the balance of probabilities and decide whether there has been misconduct or a breach of policy is antithetical to the process set out in clause 67. The Union submits that the Grievance Policy could not operate to 'override' clause 67 and that there is nothing in the Grievance Policy that is inconsistent with the Agreement. The following further submission was made by the Union:

Nothing in the disciplinary procedure prohibits a manager from investigating a

complaint. However, if the investigation results in the manager having "concerns" about an employee's conduct, then the manager must deal with those concerns in accordance with the Agreement's disciplinary policy.

• [18] The respondent argues that clause 67 sets out a staged process to be adopted in matters of varying degrees of seriousness when different forms of disciplinary action are proposed in response to performance or conduct issues. They say the clause proceeds on the basis that the relevant conduct warranting the disciplinary action has been substantiated. They submit that the clause then provides the employee with an opportunity to respond to substantiated deficiencies in performance or conduct before one or other of the disciplinary outcomes is considered and imposed.

• [19] The respondent submitted that, contrary to the applicant's submission, clause 67 of the Agreement does not prohibit the respondent from taking appropriate steps to investigate the complaint and determine whether the complaint is substantiated before the 'show cause' processes in clause 67 are engaged. They say that the applicant's position that the processes of clause 67 should have been engaged in the first instance in the present circumstances misconstrues the terms of clause 67. They say that the submission that the suggestion that an independent investigation occurring prior to the processes described in clause 67 is somehow more 'punitive' than the respondent's proposed course, is misconceived. Further, the respondent referred to sub-clause 67.4.1 and pointed out that clause 67 itself contemplates a review or investigation process prior to disciplinary action being taken. They say the applicant's approach would have the effect of denying an employee who is the subject of a complaint the right to have the matter impartially investigated before the processes set out in clause 67 are commenced.

• [20] The present application turns largely on the proper construction of clause 67 of the Agreement. The parties did not make detailed submissions about the principles to be adopted in the interpretation of an enterprise agreement. Those principles are well-known and were not put in issue by the parties. It is sufficient for present purposes to refer the recent decision of the Full Bench in The Australian Rail, Tram and Bus Industry Union v. Keolis Downer Northern Beaches Pty Ltd[2]. The Full Bench in that matter had the following to say about those principles:

[27] ...In summary, enterprise agreements are to be construed as practical instruments that will apply to the working conditions known to employers and employees who work in the circumstances to which the instrument will apply. Otherwise, words in an enterprise agreement are generally to be given their ordinary meaning, read within the instrument as a whole and in context. The consideration of context cannot justify rewriting an agreement. Interpretation remains a text-based activity. It is important to remember, however, that the ordinary meaning of a provision is not to be discerned separately from, or disregarding, the context in which the provision is found.

[28] Narrow or pedantic approaches to interpretation should be avoided. The search is for the meaning intended by the framers of the document objectively assessed, bearing in mind that the framers were likely of a practical bent of mind. They may have been concerned with expressing an intention in ways understood in the context of the relevant industry or industrial relations environment. The document can be read to give effect to its purpose, having regard to the industrial context despite inconsistencies which might give rise to a different reading. Construction of ambiguous terms should, where possible, favour a sensible and practical industrial result. (citations omitted)

• [21] In my view the applicant's submissions as to the meaning and effect of clause 67 of the Agreement cannot be accepted. Clause 67 is, as its title suggests, directed towards the procedures to be applied when employees are to be disciplined or terminated. The purpose of the clause, described at 67.1, is to ensure fair and equitable treatment of employees when discipline and termination issues arise and to ensure managers meet industrial law standards for termination of employment. It sets out both the grounds for disciplinary action and the procedure to be adopted where sanctions, including termination, are to be imposed or are at least being considered. The clause does not generally concern itself with the processes that might apply before those processes are contemplated.

• [22] On the applicant's submissions, clause 67.7 compels the respondent to conduct a formal counselling session with Mr. Kamenjasevic rather than proceed with an investigation into the complaint using a third party. This submission was put on the basis that a manager of the respondent had concerns about Mr. Kamenjasevic's performance or conduct. It should be noted here that where concerns exist, the manager is required by clause 67.7.1 to outline to the employee 'the problem' with the conduct or performance of that employee. I do not think the clause requires that a formal counselling session be held in the current circumstances. One obvious difficulty with the applicant's submission is that there is no basis to suggest that concerns or the problem in clauses 67.7 and 67.7.1 presently exist. As things stand, the respondent has a complaint from one employee in relation to the conduct of another. Ms. Harb gave uncontested evidence for the respondent that the subject matter of the complaint was not of the kind that could be easily substantiated and appropriate disciplinary action contemplated without first undertaking an investigation. At this point in the process, it simply cannot be known by Kalmar whether there is any substance to the complaint. It may be that after the matter is considered, the respondent comes to a view that there is no proper basis for the complaint and the matter need not be taken any further. The respondent is simply not currently in a position to apply the disciplinary and termination provisions of clause 67 and it would be, in my view, pre-emptive for them to do so.

• [23] The applicant is correct to assert that nothing in clause 67 prohibits a manager from investigating a complaint. But nor does anything in the clause require that to occur. Clause 67 does not set out a mechanism for conducting inquiries where untested or contested allegations are made against individual employees, either to the exclusion of any other process of inquiry or otherwise. Nor is not a provision directed at dealing with grievances raised by one employee against another, at least in the initial phases of such a process It may be that clause 67 has work to do once the complaint has been considered in greater detail and the respondent comes to the view that disciplinary procedures are warranted (or as the applicant put it, that the manager has 'concerns'), but the respondent is correct in the view that the clause has not been engaged in the present circumstances. In that case the applicant's claim for relief in the form of a determination that the operation of clause 67 means that the respondent is prevented from using a third party to conduct an investigation and making determinations is rejected.

• [24] It is obviously desirable that the complaint be dealt with as soon as possible. The Grievance Policy provides that an investigation is to be undertaken by a Senior Manager (or another Senior Manager where there is a reason why the first manager should not do so). It does not mention the use of external parties. As is mentioned above, the effect of clause 58a is that the terms of that policy as it existed at the date of approval are to continue to apply as a policy but not as a term of the Agreement. Clause 56 is in broad terms and allows the Commission to deal with disputes not just in relation to the operation of Agreement terms, but also any matter arising in the course of employment. The operation and application of the Grievance Policy is such a matter.

• [25] The parties gave evidence of circumstances where a matter had been investigated by a Senior Manager in one case and where iHR had been used to assist the respondent with the process in another. I am satisfied that there has been previous use by the respondent of third parties in investigation processes. I also note that the role of iHR is limited to fact finding and not decision-making in relation to the consideration and/or imposition of sanctions. Further, I note that the details of how the process in the Grievance Policy works are quite limited. The information provided in relation to the process to be adopted by the investigator is consistent with the Grievance Policy, is reasonably detailed and includes safeguards to ensure that all parties have a fair and reasonable opportunity to present their version of events. The respondent also provided evidence, which I accept, as to their present resourcing capabilities and their limited capacity to conduct an investigation without external assistance. In the circumstances and notwithstanding the absence of any express reference to the use of third parties in the Grievance Policy, I am of the view that it is appropriate that the respondent be permitted to continue to use the third-party investigator to progress the processing of the complaint in accordance with that Policy.

Mr Bond, of Construction, Forestry and Maritime Employees Union, representing the applicant

Mr Hooper, of Ai Group, representing the respondent

[1] Applicant's Submission, paragraph [9].

[2] [2025] FWCFB 240.

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