Fair Work Act 2009

s.739 - Application to deal with a dispute

Dispute about matters arising under an enterprise agreement - payment for participation in disciplinary processes - quantum of payment

• [1] On 9 March 2026 I published a decision[1] (Decision) in relation to an application for the Commission to deal with a dispute under s.739 of the Fair Work Act 2009 (Cth) (Act). In broad terms, the dispute dealt with in the Decision concerned various claims for payment made by the applicant, Mr. Singhal, relating to a period during in which the applicant did not perform his usual duties. One of the issues raised in the original dispute was a claim by the applicant that he be paid by his employer, the Reserve Bank of Australia, for time spent participating in a disciplinary process. At paragraph [42] of the Decision, I recorded as follows:

[42] Question 4 raises the issue of whether the applicant's participation in disciplinary processes, workplace investigations and rehabilitation processes at the respondent's request constitutes work for the purposes of clause 10. The respondent conceded that the answer to the question insofar as disciplinary proceedings is concerned is 'yes' and accordingly there is no dispute between the parties on that question. The applicant sought an order for the payment of 7 days for 'disciplinary participation' in the application. By the time of the hearing this had extended to 9 days, the additional days being for 27-29 October 2025. The respondent said that the amount should be no more than the equivalent of one day's work. There remains therefore a residual dispute as to the quantum of payment that should be made. For the purpose of settling that aspect of the dispute I direct that the parties confer with a view to resolving that issue within 7 days from the date of this decision. If the matter is not resolved, I will relist the matter to hear further brief submissions on the question of quantum. As to any remaining question in relation to "workplace investigations" and "rehabilitation processes" there is not a sufficient evidentiary basis to understand what processes are encompassed within those expressions, what they may have involved and the extent to which the applicant may have been directed or required to participate in them to allow me to come to a view about whether they might constitute time worked for the purpose of clause 10 of the Agreement. The applicant has therefore not established that these matters should be regarded as work for the purposes of clause 10. (footnotes omitted)

[2] The parties have conferred as directed following the Decision but have been unable to resolve the question of the amount of the payment that should be made to the applicant in relation to the applicant's involvement in disciplinary processes in 2025. Brief written submissions were provided by the parties on that topic. This decision is directed to the resolution of that issue.

[3] In the originating application form, Mr. Singhal described the dispute that was the subject of the proceedings as relating to, inter alia:

Non-payment for participation in disciplinary processes, which were acknowledged by the Respondent as inherent requirements of the Applicant's role.[2]

• [4] The application form F10 also provided the following details[3] of the applicant's characterisation of the dispute:

Despite repeated medical certification of fitness for restricted work hours and confirmation of readiness to resume duties, the Respondent failed to assign work or pay corresponding salary for the following periods:

Period Medical Clearance/Hours available Pay Status

22 Sept 2025 20 hours (4 hours x 3 days/week) Unpaid

27-28 Oct 2025 Participating in Disciplinary action Unpaid

• [5] The relief sought by the applicant in the application included an order for 'payment for seven days of disciplinary participation (September 2025).'[4]

• [6] The applicant's witness statement in the main proceeding asserted that the applicant had spent approximately 70 hours preparing responses and providing material to the respondent as part of the disciplinary process.[5]

[7] The applicant's written outline of submissions in the hearing of the dispute included a table setting out what the applicant said was his 'certified capacity, duties availability and the respondent's response'. The table included the following:

COC Period Certified to work Hours worked Respondent's response

[8] The table also said that the applicant did not work any hours in the period from 30 June 2025 to 12 August 2025 or from 7 November 2025 to 24 November 2025.

[9] The applicant now seeks payment from the respondent for the equivalent of 107.3 hours for participation in the disciplinary process. This claim covers the period July/August 2025 to November 2025.

[10] The respondent maintains its position that the applicant should receive no more than the equivalent of one day's wages for that participation.

• [11] The allegations which formed the basis of the disciplinary process were contained in a letter from the respondent to the applicant dated 12 August 2025. The applicant was originally given until 15 August 2025 to respond. This was subsequently extended, at the applicant's request, to 26 September 2025. Further extensions were granted at the applicant's request to 17, 24 and then 28 October 2025. On 27 October 2025, the applicant requested a further extension of time of 5 business days to respond to the allegations. A medical certificate dated 26 October 2025[6] was provided in support of that request. The certificate said that the applicant was unfit for work from 27 October until 3 November 2025.

[12] The applicant responded to the allegations in writing on 28 October 2025.

[13] Neither the allegations letter of 12 August 2025 nor the applicant's written response were in evidence.

[14] On 20 November 2025 the respondent advised the applicant of the outcome of the disciplinary process. As is recorded in the Decision, no adverse findings were recorded against the applicant as a result of that process.

[15] Notwithstanding the conclusions in paragraph [42] of the Decision, in his written submissions relating to the issue of quantum the applicant continued to press for the Commission to resolve in his favour in respect of both participation in disciplinary processes and another workplace investigation process that was undertaken by the respondent in 2025. In this latter respect, the applicant claimed payment for a further 88.8 additional hours and maintained that the two processes were 'cross-referential.' For the reasons given in the Decision, I do not propose to make any determination as to quantum in relation to the other workplace investigation or to say any more in relation to this aspect of the applicant's submission.

• [16] Further, I do accept that any payment to the applicant for participation in disciplinary processes should extend to 'pre-investigation engagement,' 'pre-investigation time' or 'post-decision correspondence.' As is set out above, the applicant's own material at the hearing demonstrates that the applicant was medically unfit for work and performed no work in the period from 13 August - that is immediately after the letter of allegations was sent - until 10 September 2025.[7] The material also says that the applicant performed no work in the period 30 June to 12 August 2025. In spite of this, the applicant advances a claim for payment for unspecified dates in July and August 2025 for 'pre-investigation engagement.' That claim must be rejected. The claim for 'post-outcome engagement' at an unspecified date in November 2025 also cannot be sustained. The process formally concluded on 20 November 2025 when the applicant was advised of the outcome. Steps taken by the applicant after the outcome of the process had been determined were matters undertaken at the applicant's initiative rather than as part of respondent-directed participation in the disciplinary process.

• [17] Thirdly, the applicant's shifting position on the time involved in engagement with the disciplinary process has undermined the credibility and reliability of those claims. The applicant has variously submitted that he should be paid for 7 days for this participation, then 70 hours, and most recently, 107.3 hours. As was recorded in the Decision, aside from participation in disciplinary processes, the applicant did not perform any work for the respondent in the period from at least 30 June to 30 November 2025.[8] The applicant's outline of submissions in the original proceeding provides that the applicant claimed to have worked for 88 hours in the period 11 September to 8 October 2025 whilst also noting that the applicant was overseas from 23 September until 17 October 2025 and was only certified fit to work for 4 hours per day on 3 days per week during that period. The outline of submissions also said that the applicant participated in 'directed activities' in the period 11 to 22 September 2025. Further, the application form itself indicated that the applicant was only available for work for a total of 20 hours in the period 11 to 22 September 2025 and that he was on 'unpaid leave' for the period 23 September to 24 October 2025 for which period there was no applicable claim for payment. In those circumstances it is difficult to understand the claim for 88 hours worked in the outline of submissions.

[18] The applicant also says that his present claim has been arrived at using the respondent's 'half-day minimum remuneration framework' as a 'standardisation mechanism to avoid undercounting.' The respondent accepted that it had previously agreed to pay the applicant for half a day for his attendance at an independent medical examination but said that there was no such 'remuneration framework.' There was no evidence of a more generalised 'half-day remuneration framework' applying in the respondent's workplace because of the terms of the relevant agreement or otherwise. The applicant's adoption of such an approach will necessarily and unjustifiably inflate his claim beyond the hours that he actually spent engaged in the disciplinary process. I also do not accept on the evidence that the extensions of time given to the applicant to provide a response at the applicant's request was an acknowledgement on the part of the respondent of the inherent complexity of the task of responding to the allegations.

[19] The absence of both the letter of allegations and the applicant's written response makes a precise assessment of the time spent involved in dealing with the disciplinary process more difficult to determine. Nonetheless, it was not in issue that the process involved allegations that the applicant had sent confidential information of the respondent to his home email address over a period of months in 2024 and 2025. I also note that it was not suggested that the applicant did not have ongoing access to his personal email during the investigation process. Having regard to the evidence, including the applicant's own material, I am of the view that the applicant was engaged in preparing his response to the allegations in the period 11to 22 September 2025 and in the drafting of the response on 27 to 28 October 2025. I do not think that the applicant would have spent the entire 20 hours of the 'available hours' in the former period in the preparation of his response to the allegations. In the latter period, he was certified as medically unfit for any work and his medical condition would have, to some extent at least, restricted his capacity to draft a response over those two days.

[20] In my estimation, taking into account all of the circumstances, including the nature of the allegations and the applicant's limited access to the respondent's internal systems, policies and emails, I think that the participation of the applicant in the disciplinary process would have involved no more than 1.5 days' work. I conclude that the dispute over this issue should be resolved by the respondent paying the applicant an amount equivalent to 1.5 days' wages together with the appropriate superannuation contribution in respect of this amount.

[1] [2026] FWC 754. The Decision is now the subject of an appeal.

[7] See also applicant's Outline of Submissions at [6], hearing Book page 292.

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