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[2009] AIRC 47
General information, not legal advice.
Australian Industrial Relations Commission
2009-01-16
Original judgment source is linked above.
Note: An appeal pursuant to s.120 (C2009/2255) was lodged against this decision.
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment
[1] On 15 May 2008, Mr Richard Lambeth, Ms Jacqueline Bohun and Mr Joseph Chircop (the applicants) applied to the Commission for relief in respect of the termination of their employment by the University of Western Sydney (UWS, the respondent.) The applications failed to settle in conciliation and the applicants elected to proceed to arbitration to determine whether the termination of their employment was harsh, unjust or unreasonable. Hearings were held in Sydney on 22 and 23 September and 18 November 2008. The applicants were represented by Ms Larissa Andelman, and the respondent by Mr James Miller.
[2] The following witnesses were called on behalf of the applicants (the applicants also gave evidence on their own behalf):
[3] The following witnesses were called by the respondent:
[4] At the time of their termination, the applicants' employment was governed by the University of Western Sydney General Staff Agreement 2006 - 2008 (the GSA). Clauses 5, 29 and 38 of the GSA are attached to this decision.
[5] Mr Lambeth commenced employment with UWS in March 1998 as a casual security officer. He was made permanent in July 2002 as a Security Officer, HEW 3, Capital Works and Facilities Unit, Division of Resources. When he commenced as a casual in 1998, Mr Lambeth was provided with a duty statement and position description. The duties included:
[6] Ms Bohun commenced employment with UWS as a casual security officer in February 2000. She was made permanent in July 2002 as a Security Officer, HEW 3, Capital Works and Facilities Unit, Division of Resources.
[7] Mr Chircop was appointed to the position of Security Officer (Maintenance and Campus Services) at UWS in the Resources & Development Division in January 1996. He was classified as a HEW Level 3. He received a statement of duties that was similar, but not identical, to the one Mr Lambeth received in 1998. (Exhibit A6, Annexure A3).
[8] In July 2003 UWS prepared a revised Statement of Duties for the security officers. [Exhibit B4 annexure GC5] According to Mr Castelli's evidence, they were never signed off or approved for issue to staff. (Exhibit A8, paragraph 15) However, both the applicants and the respondent referred to this statement which appeared to be in general use. This revised statement of duties identifies that Security Officers report to the Security Supervisor (who at the time the relevant events occurred was Mr Glenn Cooper). The revised statement of duties includes the following:
"1. Provide security services for students, staff, general public, and protect the university's property and assets and student accommodation, to ensure the protection and safety of students, staff, visitors and university property and assets"
"9. Under the direction of the Security Supervisor, undertake administration of the Key Plan, involving the issue and receipt of building keys, to ensure the effective control of access to university property by authorised persons."
[9] Mr Castelli explained the Key Plan as a database, which:
"…records all keys within the campus master keys system and where their current allocation has been marked to." (Transcript 23 September PN 112)
[10] During 2006 a review was conducted into facilities management at the university. Following the review, the Divisional Review Group (DRG) Implementation Team proposed the abolition of a number of positions and the creation of a number of new positions, including six new Facilities Services Officers (FSOs, HEW Level 8). The management of campus based pool vehicles came under the responsibility of these new FSOs (rather than the logistics staff as before). Security Officers continued in the new Security and Campus Services Unit and reported to the FSO at their respective campus.
[11] The DRG Implementation Team's report included the following:
"There is no expectation that there will be 'flow on' impacts from the FSO role to the security officer role on any campus, nor is there any expectation that the current role and responsibilities of the Security Officer positions will change as a result of the new FSO positions." (Exhibit A1, paragraph 14)
[12] Mr Lambeth was advised by his union delegate, Mr Wayne Turner, that he had been told at a meeting about the restructure that there would be no change to the role of Security Officers. Mr Lambeth also saw the words referred to in the DRG document. (Exhibit A1, paragraph 15)
[13] Mr Brian Castelli, the security manager at the time of the restructure, gave evidence during the hearing that the position description for the security staff was "deemed" not to need any change. (23, September 2008, PN40)
[14] Mr Glenn Cooper was appointed in March 2007 as the Facilities Services Officer HEW Level 8, Security and Campus Services, Capital Works and Facilities, UWS Penrith Campus. In this capacity he became the applicants' supervisor. On 10 April 2007 he introduced a number of changes, including a requirement that the security office be manned by one officer from 7:00am until 5:00pm. The security officers were left to work out amongst themselves who would be in and who would be out of the office. Mr Cooper expected everybody to spend equal time both doing office duties and out on the job. Mr Cooper's email outlining the changes explained this was to improve customer service (Exhibit B4, annexure GC2).
[15] On 23 April 2007, Mr Byrne directed the Penrith Security Section to commence management of the pool motor vehicles as of 1 May 2007. (Exhibit, B5, paragraph 7) That same day Mr Cooper sent an email to all security staff at the Penrith Campus notifying them that their section would be taking over the role of overseeing the pool cars. He wrote:
"After looking into what needs to be done to carry out these duties, I believe this will have very little impact on us as a section.
I am currently arranging for all of security to have log ons for the pool car computer system, when we are able to log on and have more information I will right (sic) up some procedures for this to be done.
I will make sure we all have a clear understanding of what's happening before we take this over, if you have any concerns please talk to me." [Exhibit B4, paragraph 10]
[16] Later that day, Mr Lambeth sent an email back to Mr Cooper that included the following:
"As I pointed out to you last week our Statement of Duties does not include looking after pool cars …
In the ten years that I have been employed in Security at U.W.S. our duties keep increasing but our remuneration has remained static, now contrary to the assurances given by Janice Reid that Security Duties would not be increased, with the implementation of the new positions of the FSO's Management is trying to allocate more responsibilities to Security.
If Security Officers are expected to carry out these duties that are not covered in our Statement of Duties, there will have to be some serious negotiation with the relevant Unions regarding an increase in our salary before I agree to do any extra duties." (Exhibit A1, annexure RL 6)
[17] On 24 April 2007, a further email was sent by Mr Cooper to all Penrith campus security staff attaching a 'Pool Officers Procedures' document and an 'Introduction to Vehicle Fleet management system (VFMS)' slide presentation.
[18] On 28 April 2007 Mr Cooper received an email from Ms Bohun. This stated:
"The new level 8 grading of the FSO positions is intended to reflect the additional responsibilities of this position and this includes the pool vehicles. We were also informed that there would be no flow on of the FSO's duties to the security officers, and the current role and responsibilities of the security officer would not change; therefore if it is not in the security statement of duties I am unable to carry out these duties." (Exhibit A4, annexure JB4)
[19] On 30 April 2007 Mr Cooper sent an email to Mr Lambeth in reply to Mr Lambeth's email of 23 April 2007. He wrote
"Thanks for your email, I am disappointed you feel this is not part of our duties, I will talk to you next time I see you." (Exhibit A1, annexure RL6)
[20] Mr Lambeth's evidence is that he did not refuse to hand over the pool vehicle keys or receive them when the cars were returned - he merely refused to log them on the computer system. (Transcript 22 September, PN440) Ms Bohun gave similar evidence. (Transcript 22 September 2008, PN1108) Both asserted that this would be doing non security related work.
[21] On 4 May 2007 Mr Cooper was in the office with Mr Chircop when a staff member attended the security office window to collect a pool motor vehicle key. Mr Chircop called Mr Cooper to issue the vehicle key to the staff member. Mr Chircop indicated that he had a problem with issuing the vehicle keys as it was not in his position description and there was an occupational health and safety issue with carrying out a patrol on his own. (Exhibit B4, paragraphs 25-26). Later that day Mr Byrne and Mr Cooper had separate meetings with Mr Chircop and Ms Bohun. Both Mr Chircop and Ms Bohun reiterated their refusal to issue the pool vehicle keys.
[22] Also on 4 May 2007 an email was sent from Mr Cooper to all Security Staff under the heading 'UWS pool cars.' This email removed a previous request to monitor the pool vehicle oil and water levels, and added that if there was anyone who had not been shown how to book a vehicle out and return it via the car pool system they were to tell Mr Cooper when they were next on shift and he would show them how it was to be done. (Exhibit B4, annexure GC4).
[23] Around this time Mr Cooper told Mr Lambeth that Mr Byrne and he had to speak to Mr Lambeth about the pool vehicle keys. Mr Lambeth reiterated that he would not be issuing the pool vehicle keys and said he did not have to meet Mr Byrne as he was not the Master Security Licence Holder. (Exhibit B4, paragraph 37-40)
[24] On 7 May 2007 Mr Byrne prepared a report under the heading 'Refusal by UWS guards at Penrith Campus to undertake requested duties'.
[25] On 14 May 2007 at the request of Mr Byrne, Mr Cooper and Security Officer Wayne Turner completed an OH&S Assessment in relation to single unit security patrolling duties across the UWS campuses. They made a number of recommendations which were approved and implemented. This included a requirement that single unit Security Officers report to the FSO or security office every 30 minutes whilst undertaking certain patrol duties (Exhibit B4, paragraphs 42-43).
[26] Mr Byrne (Manager, Security and Campus Services) served a Letter of Formal Advice, dated 15 May 2007, on the applicants noting that they had formally refused to undertake the management of pool vehicle keys as part of their duties despite being requested to do so by management. Mr Byrne's letter continued:
"In the University's view, the request that you undertake the management of pool vehicle keys is a lawful and reasonable direction given the scope of your duties and responsibilities as a Security Officer.
The purpose of this letter is to therefore formally advise you that any continuing refusal on your part to follow a lawful and reasonable direction to undertake the management of pool vehicle keys may result in the University taking action against you under Misconduct procedures set out in clause 29 respectively of the General Staff Agreement 2006-2008, which in turn may lead to disciplinary action up to and including the termination of your employment." (Exhibit B5, annexure AB7)
[27] Mr Lambeth responded by writing a letter dated 18 May 2007 to Ms Helen Lyons, Director of Human Resources. In this letter he strongly disagreed that managing pool vehicle keys was part of his duties as a HEW Level 3 Security Officer. He referred to the Statement of Duties document dated July 2003.
[28] Mr Lambeth also referred to the document prepared by the DRG Implementation Team which indicated that there was no expectation that there would be any flow-on impacts from the FSO role to the Security Officer role on any campus, nor that the current role and responsibilities of the Security officer positions would change as a result of the new FSO positions. He stated that at no stage during or after the restructure was he or any of the other HEW Level 3 Security Officers formally advised that there would be a change to the scope of their roles. Their Statement of Duties had remained unchanged, there had been no discussions about increases in pay to compensate for additional duties nor had there been any discussions about increasing the grade level of the Security Officers to cover the inclusion of additional duties. He continued:
"Mr Byrne has indicated in his letter that he believes that the request to undertake the Management of Pool Vehicle Keys is a lawful and reasonable request and that my refusal to undertake this request can lead to the University taking action against me under the Misconduct procedures. The issue is not about the refusal of the request but whether the request is in fact lawful and reasonable given the scope of duties and responsibilities of an HEW Level 3 Security Officer as is outlined in the current Statement of Duties.
In all the years I have worked at the University of Western Sydney in the position of HEW Level 3 Security Officer, I never have and never will refuse to do any of the security duties as outlined in my Statement of Duties. At all times I undertake my work diligently, professionally and efficiently and as such I am offended that my professional integrity has been questioned through accusations of refusal to undertake lawful and reasonable directions without any dispute resolution processes being undertaken first.
I have tried on numerous occasions to outline these issues to Mr Glenn Cooper (Facilities Services Officer) when I have been requested to undertake the Management of Pool Vehicle Keys but to no avail. Both Mr Cooper and now it appears Mr Byrne are unprepared to consider the issues and concerns I have raised over this matter and have not followed the procedures outlined in Clause 5, Dispute Settlement (Attachment A), of the University of Western Sydney General Staff Agreement 2006-2008.
Since it now appears that the situation has escalated beyond Clauses 5.4 and 5.5 of Clause 5 Dispute Settlement in the agreement, I now formally request that we proceed directly to Clause 5.6 of the procedure and request a meeting with Mr Mick Serena in an attempt to resolve this issue. I would request that the Human Resources Department act as a conduit to organise this meeting as I do not feel comfortable initiating the procedure myself. Please also be advised that as is my right under this procedure, I shall choose to have legal representation present for this and any subsequent meetings.
The documentation I have provided clearly shows that the responsibility for the management of Pool Vehicles lies with HEW Level 8 Facilities Services Officer and not with HEW Level 3 Security Officer yet I am being persecuted for trying to protect my rights in the workplace…"(Exhibit A1, annexure RL8)
[29] Mr Lambeth followed this up with a further letter to Ms Lyons dated 28 May 2007. He wrote:
"In accordance with Clause 5.6, Dispute Settlement, of the University of Western Sydney General Staff Agreement 2006-2008, a time and a date for a meeting with Mr. Serena should have been organised within 5 days. Since this time has now elapsed and I have had no formal or informal communication from the HR Department or Mr Serena to organise this meeting, I can only assume that the University has chosen not to follow the procedure set out in the University of Western Sydney General Staff Agreement 2006-2008.
Although it is my preference to resolve this matter internally and in accordance with the Agreement; if the University continues to ignore the Dispute Resolution Procedures I will be left with no choice but to take this matter to the Industrial Relations Commission (as is my right).
If I continue to have no communication from the HR Department or Mr Serena in order to organise an appropriate time and date for a dispute resolution meeting, I will be taking this matter to the Industrial Relations Commission on the 4th June 2007." (Exhibit A1, annexure RL9)
[30] On 29 May 2007, Mick Serena, Director Capital Works and Facilities sent an email to Mr Hodson and Ms Lyons indicating that, in accordance with clause 29 of the UWS General Staff Agreement, he had conducted a preliminary investigation concerning the refusal of Mr Lambeth, Ms Bohun and Mr Chircop to carry out duties associated with the issue of pool vehicle keys. Based on the information provided, he advised that allegations of misconduct/serious misconduct should proceed against each of the staff members. (Exhibit B3, annexure KH2)
[31] Ms Lyons responded to Mr Lambeth in a letter dated 30 May 2007:
"You have previously been made aware of the University's view that any continuing refusal on your part to undertake the management of pool vehicle keys, being a lawful and reasonable direction from your employer, may result in the University taking action against you under the Misconduct procedures set out in clause 29 of the General Staff Agreement 2006-2008 ("Agreement"), the consequence of which may be disciplinary action up to and including the termination of your employment. In this regard I refer to Adam Byrne's letter to you dated 15 May 2007.
I understand that both Mr Byrne and Glen Cooper have made attempts to discuss this matter with you on an informal basis so as to try and reach a resolution under clause 29(5) of the Agreement but that you have refused to enter into any such discussions. As a result, the matter was referred to Mick Serena in his capacity as the Director of Capital Works and Facilities for preliminary investigation under clause 29(10) of the Agreement. Having completed this investigation, Mr Serena has determined that further action is warranted and you are advised that the University is now in the process of preparing a schedule of allegations in accordance with clause 29(10) of the Agreement, which will be forwarded to you shortly for your response.
The University is of the view that the Dispute Resolution procedures set out in clause 5 of the Agreement are not applicable to this matter as it does not concern a "dispute regarding the interpretation, application or operation of a provision of this Agreement". Furthermore, the dispute resolution process has not been properly initiated by either party in this matter and it would not be appropriate for any such process to be on foot whilst the matter is being dealt with under clause 29 of the agreement." (Exhibit A1, annexure RL10)
[32] The applicants' lawyer, Mr Andrew Bide wrote a letter to Ms Lyons dated 6 June 2007. The letter stated that his clients had been directed to undertake additional duties not covered by the position description of a Security Officer HEW Level 3. These duties were previously supervised by a HEW Level 7 and assisted by HEW Level 4 Storepersons.
"The grades of these storepersons are higher than that of our clients and they would no doubt possess the requisite skills required for conducting such duties. Our clients are specialized security officers employed to maintain security in accordance with their position description and are not remunerated or trained as clerks to maintain a database or a Facilities Services Officer role. Furthermore, our clients instruct us that remaining in the office and not patrolling the university pro-actively is a possible security threat to the university."
[33] Mr Bide's letter concluded by requesting that the university desist from altering his clients' duties from that set out in their position descriptions as Security Officers HEW Level 3. Continuing to threaten his clients with dismissal would result in his clients seeking resolution in a forum outside the university. (Exhibit B3 annexure KH3)
[34] On 9 July 2007 Mr Serena sent a letter to the applicants which noted that the applicants had refused to engage in any discussions with their supervisor, Adam Byrne, by way of attempting to informally resolve the matter under section 29 (5) of the General Staff Agreement 2006-2008, following which Mr Byrne had referred the matter to him in his capacity as Director of Capital Works and Facilities for preliminary investigation pursuant to clause 29 (6) of the agreement.
[35] Mr Serena indicated that following his preliminary investigation and after consideration he had determined that further action under clause 29 was warranted and accordingly set out the allegations against them. The first allegation was that the applicants had breached their duty of fidelity to the University in their capacity as employees by refusing to follow a lawful and reasonable direction issued to them by the university. In particular it was alleged that management of pool motor vehicle keys was consistent with the duties required of HEW Level 3 Security Officers. It was also stated that the management of pool motor vehicle keys was within the spirit of the applicants' functions as a security officer, particularly with regard to their core duties of asset protection and related administration. It was pointed out that there were in excess of 100 keys under the management of Penrith campus security staff, of which only nine were pool motor vehicle keys. It was alleged that on 7 and 17 May 2007, the applicants refused requests by Mr Cooper that the applicants meet with Mr Byrne to discuss their refusal to undertake management of the pool motor vehicle keys. It was further alleged that the applicants continued to refuse to undertake the management of pool motor vehicle keys.
[36] The second allegation contained in the 9 July 2007 letter was that the applicants had breached the University's Code of Conduct by failing to "act in good faith' as required by Clause 5 (d) of the Code, and failing to carry out their duties as best as they could within their delegated authority as referred to in clause 5(b) of the Code. It was further alleged that by breaching the Code they had, by implication, also breached their contracts of employment (which incorporated the Code by reference). (Exhibit B3, annexures KH4, KH5 and KH6)
[37] On 10 July 2007, Ms Lyons wrote to Mr Bide stating:
"The University maintains that the direction issued to your clients that they undertake the management of pool motor vehicle keys was a lawful and reasonable one having regard to the nature of their role as security officers. There are currently in excess of 100 keys under the management of Penrith Campus security staff, of which only nine are pool motor vehicle keys. The duties required of your clients in managing these pool motor vehicle keys are akin to those associated with the management of other keys, such as building keys, and which are undertaken by your clients and all other security staff across the University's campuses. The management of pool motor vehicle keys is a simple process that is not overly demanding or onerous and may therefore, in the University's view, be reasonably expected of a HEW Level 3 security officer.
Accordingly, the University continues to be of the view that your clients have failed to follow a lawful and reasonable direction issued by their employer. We advise that the University intends to proceed with its misconduct procedures against your clients and that letters of allegation are being forwarded to your office. As part of that process, your clients will be provided with an opportunity to respond to the allegations against them, following which the University will determine what action, if any, is taken." (Exhibit B3, annexure KH7)
[38] Mr Lambeth responded to Mr Serena with a 6 page letter dated 26 July 2007. [Exhibit B3, annexure KH8] Mr Lambeth referred to the restructure that had included relieving the stores staff of pool vehicle responsibilities. Mr Lambeth drew attention to the DRG implementation document which indicated that there was no expectation of any flow on impacts from the FSO role to the security officer positions. He also pointed out that the security officers had been left out of the consultation process associated with the restructure on the basis that they would not be affected. He noted the increase in grades for staff involved in the restructure. He submitted:
"…that as there was no change in grade proposed for security officers at HEW Level 3, this would confirm that there was no intention to change the statement of duties for the security officer positions. Any proposed changes were documented as taking place down to FSO HEW Level 8. I would suggest that efforts by the FSOs to pass their new duties down to the security officers is (sic) one of recent invention and not part of the original proposals documented in the Organisational Change document."
[39] Mr Lambeth referred to the statement of duties he received when he commenced employment with UWS in 1998. He stated that he had adhered to this statement of duties and had never been consulted about any changes to the statement of duties. He wrote:
"You might note that the emphasis on the requirements of the position are (sic) to engage in security guard duties and not those of a clerk confined to an office. I hold a security licence and undertake specialised training to retain this qualification."
[40] Mr Lambeth also wrote that while researching the matter he had been shown a document Security Officer (Generic) HEW Level 3 dated 3 July 2003 and noted this document made no reference to Pool Vehicle Management. Mr Lambeth stated that:
"The duties of 'Pool Vehicle Management' is far more involved and impacts upon the core work of security officers by changing the fundamental duties identified in our statement of duties identified in Annexure 'A' & Annexure 'B' [the 'person specification' and duty statement given to Mr Lambeth when he commenced work]. The management of pool cars were formerly the responsibility of HEW Level 4 clerks in the stores area which was rationalised and the roles no longer exist. The duties of the HEW Level 4 positions were incorporated into the HEW Level 8 Facilities Services Officers and the additional responsibility was acknowledged with the increase in grading from HEW Level 5 to HEW Level 8.
Although portrayed in a superficial manner in your Allegation 1 as being a simple task of handing out up to nine keys for pool cars, Glen Cooper and Adam Byrne propose that the true nature of the role is for one officer to constantly man the office window in front of the computer between 7am & 5pm daily where the pool car keys are issued/collected whilst the other security guard patrols, attends incidents or conducts his/her duties 'one out' which is clearly an occupational health and safety risk for the officer sent out alone. It is the fundamental change of duty from security officers patrolling actively in pairs and doing what they are trained to do as core business to being office bound pseudo clerks which is contested. I reiterate that no upgrade, increased training or remuneration has been provided to justify such a change of duties…."
[41] Mr Lambeth wrote that he had written to Helen Lyons, Director of Human Resources, on 18 May 2007 seeking to invoke the dispute settlement provisions of the General Staff Agreement.
"It is apparent that little regard was given to the contents of the letters and the response from Helen Lyons dated 30 May 2007 did not address the issues I raised in my letters as a grievance and therefore implement the Dispute Settlement provisions of Clause 5 of the General Staff Agreement. I have been 'fobbed off' at every level. The legal advice given to me is that Clause 5 of the General Staff Agreement is the most appropriate process to deal with such a dispute. It would appear to me that when I seek to rely on the Dispute Resolution provisions in the General Staff Agreement they don't apply but when required to answer an allegation of serious misconduct in accordance with clause 29 of the General Staff Agreement it does. I must reiterate, I have always sought a formal meeting with you, the Director Capital Works in accordance with Clause 5 of the General Staff Agreement in a genuine attempt to resolve this matter.
[42] In responding to the specific allegations put to him, Mr Lambeth responded, inter alia:
"I do not consider Pool Vehicle management to be consistent with Security Duties. It is formerly a HEW Level 4 role administered by a clerk and not a security officer. Sitting down behind a desk all day is vastly different to patrolling and carrying out security officer duties in accordance with my statement of duties.
The management of Pool Motor Vehicle (sic) or their related administration has never been within the spirit of a Security Officer's functions, I do however acknowledge that the protection of University assets is part of a Security Officer's duties and I have always carried out my duties and obligations to the very best of my ability.
The number of Pool Vehicles and their keys is completely irrelevant to the issue as I stated previously. The issue being that the FSO's duties are being delegated to security officers."
[43] Mr Lambeth denied he had been asked to attend any meetings by Mr Cooper or Mr Byrne, or anyone else. He denied that he had breached the Code of Conduct or his employment contract. He wrote:
"The crux of the proposed changes to security officer duties takes me away from the coalface and making security officers office bound which may jeopardise the safety of staff, students and university property. The OH&S and risk management issues have not in my opinion been given sufficient consideration."
[44] Mr Lambeth again emphasised his request to meet with Mr Serena to seek resolution of the matter and urged him to review the change proposal document prepared by DRG to satisfy himself that no changes to the security officer duties were proposed.
[45] On 28 July 2007 the other two applicants responded to the allegations in similar terms to those of Mr Lambert.
[46] On 16 August 2007, a letter was sent to each of the applicants from the Acting Employment Executive member at the time, Mr Greg Holland, advising that, pursuant to clause 29(19) of the General Staff Agreement, the matter would progress by way of a Misconduct Committee unless the applicants elected to have the matter formally investigated. On 21 August 2007, the applicants elected to have the allegations formally investigated rather than being directly dealt with by the Misconduct Committee. (Exhibit B3, paragraphs 15-16)
[47] The university engaged Kamira Stacey Consulting (Kamira Stacey) to conduct investigations into the allegations against each of the applicants.
[48] As part of its investigations, Kamira Stacey interviewed each of the applicants, as well as Adam Byrne, Glen Cooper and Ken Hodson.
[49] The Kamira Stacey report concerning Mr Lambeth (Exhibit B3 Annexure KH16) was prepared by Mr Stewart Rainnie. His report found that:
[50] The Kamira Stacey report concerning Ms Bohun (Exhibit B3, annexure KH17) was prepared by Ms Donna Bigwood. It contained the following findings:
[51] The Kamira Stacey report concerning Mr Chircop (Exhibit B3 Annexure KH 18) was prepared by Ms Sharon Wright. The report found that:
[52] The Kamira Stacey reports were provided to the applicants who provided responses in March 2008 (Exhibit B3, paragraph 23).
[53] On 26 March 2008, Mr Hodson forwarded the allegations, the Kamira Stacey reports and the applicants' responses to the Deputy Vice Chancellor, Corporate Strategy and Services, Rhonda Hawkins, for her consideration as the Employment Executive member (Exhibit B3, paragraph 25).
[54] On 14 April 2008, the Employment executive member made a recommendation to the Vice Chancellor that the applicants' employment be terminated on the ground of serious misconduct due to their continued failure to follow a lawful and reasonable direction of the respondent. On 17 April 2008, the Vice Chancellor acted on the recommendation, and terminated the applicants' employment on the grounds of serious misconduct. The applicants were paid in lieu of five weeks' notice together with their accrued but untaken leave entitlements (Exhibit B3, paragraphs 26-31).
[55] Ms Andelman, on behalf of the applicants, submitted that there was no valid reason for the termination of the applicants' employment. The instruction to conduct the tasks which the applicants refused to perform was not lawful and reasonable as those tasks were outside the scope of the jobs for which they had been employed. No position descriptions under the terms of the General Staff Agreement had been finalised. Any such position descriptions would need to be within the context of the position descriptors in Schedule 4 of the agreement. Under the heading "Typical Activities" that schedule indicates that Security Officers may be involved in a range of patrol duties, including responding to alarms, following emergency procedures and preparing incident reports. While these duties are not exhaustive, other activities would have to be like the typical duties. They would have to be within the scope of these typical duties. The use of a data base application is an administrative activity not a security activity. The duty the applicants were asked to perform concerned the administration of car pools and the provision of a service to university staff in general, rather than being 'security related'.
[56] Ms Andelman further submitted that the duty to comply with the employer's directions has to be interpreted within the context of the provisions of the workplace agreement, the contracts of employment, UWS policies and procedures and representations made by UWS to the applicants in regard to the future scope of their jobs and that of the FSO.
[57] Ms Andelman submitted that the university had failed to comply with clause 29 of the GSA. In particular there had been a failure to comply with sub-clause 5 which requires a supervisor to make all reasonable efforts to informally resolve instances of possible misconduct through discussion, guidance, counselling or staff development. The meetings held on 4 May did not involve an opportunity for fair communication. Nor had there been a proper preliminary investigation in accord with sub-clause 6. The conduct complained of did not fall within the definition of serious misconduct contained in sub-clause 9.
[58] Ms Andelman relied on the decision in Nikolich [1] in support of the proposition that a representation will be implied into a contract of employment where a reasonable person in the position of a promise would conclude that a promisor intended to be contractually bound by a particular statement, then the promisor will be so bound. The statements in the DRG report that there was no expectation that there would be any 'flow on' impacts from the FSO role to the security officer role nor that there was an expectation that the creation of the FSO positions would change the roles and responsibilities of the security officer positions had been incorporated into the applicants' contracts of employment.
[59] Ms Andelman submitted that the applicants had not been properly notified of the reason for the termination of their employment, given that the reasons given changed between 15 May 2007 and 9 July 2007. They were never given a duty statement nor any reasoning nor information about the new duty and its effect on their fundamental role as security officers. They were not told why the previous representations that their duties would not change were no longer binding.
[60] Ms Andelman submitted that the applicants were not given an opportunity to respond to the reason for their termination. They were not told about the OH&S assessment conducted by Mr Cooper, and they were not given an opportunity to have a face to face meeting with senior human resources staff. They did not have an opportunity to respond to Mr Byrne's letter of 15 May 2007.
[61] Other factors Ms Andelman submitted should be taken into account by the Commission included the failure of UWS to comply with the dispute procedure in the workplace agreement, and the failure to involve the applicants in the decision making process to change their duties, given the previous undertakings not to make such changes. In this context, even if these undertakings were not legally binding, their existence makes the termination of the applicants' employment unreasonable and harsh. The issue should have been dealt with through the disputes procedure. The procedure purports to deal with any matter covered in the GSA, and clause 38 deals with issues concerning changes in duties.
[62] Ms Andelman drew the Commission's attention to Bruce v AWB [2]. She argued that Sundberg J in that case found that:
"…even where an employee refuses to carry out a lawful and reasonable direction and the court finds that in fact it was a lawful and reasonable direction, but where the employee genuinely believed at the time that it wasn't a lawful and reasonable direction, then the employee is not to be penalised for that if there is a reasonable belief." (transcript PN2131)
[63] Finally, Ms Andelman submitted that the decision to terminate was harsh and unreasonable in the circumstances of the age of the applicants, the size of the respondent, the length of service and the standing of the applicants, and their previous good performance.
[64] Mr Miller, on behalf of UWS, submitted that the evidence supported the proposition that the termination of the applicants' employment arose from their failure to comply with a lawful and reasonable direction to carry out duties that were consistent with the scope and nature of their established employment.
[65] Mr Miller drew attention to the evidence of Mr Lambeth that the usual duties of a security officer at UWS include some administrative tasks (such as report writing and maintenance of key registers) that call for the creation of paper or electronic records, use of computers and applications such as a word processor and sending or receiving email. Up to 200 keys are managed by security officers at the Penrith campus, and the actual keys under management and other security related duties evolve as a result of operational changes occurring over time. Mr Lambeth's evidence was that the only duty he refused to perform was to log the return of the car keys on to the computer, though he was unaware of what that actually involved. The reasons given by the applicants for refusing to comply with the direction made by management were that the duties were the responsibility of the FSO, Mr Cooper and that they were not security related. The notion that the duties were not security related was, Mr Miller submitted, "obvious nonsense".
"The true position is that the applicants have steadfastly refused to carry out a simple administrative routine, falling within the scope of their normal duties and have done so in circumstances where they each well knew the importance to UWS of having the task performed."
[66] Mr Miller referred to the evidence of Mr Castelli, a witness called by the applicants. Mr Castelli agreed that it was reasonable for an FSO to direct security officers to update an electronic database for building keys. Mr Castelli agreed there would be no good reason for which a security officer could refuse to log keys in and out on the Vehicle Fleet Management System. Mr Castelli confirmed the unchallenging nature of the required tasks. The whole procedure involved a few clicks of a mouse button and Mr Castelli agreed it would be "ridiculous" for a security officer to refuse to undertake it. He also confirmed that failure by Security Officers to log cars in and out of the system would prevent the tracking, in real time, of the availability of the pool cars.
[67] Mr Miller submitted that there was no evidence capable of supporting a contention that a legally binding undertaking of any type was given as part of the 2006 restructure either generally or to the applicants.
[68] Mr Miller submitted that UWS dealt with the matter fairly. The applicants were given plenty of opportunity to reconsider their position. There was a thorough investigation process and the applicants were assisted at all stages by their solicitor.
[69] In determining whether the termination of the applicants' employment was harsh, unjust or unreasonable, the Commission must have regard to the factors set out in s. 652(3) of the Workplace Relations Act (1996) (the Act). These are:
"(a) whether there was a valid reason for the termination related to the employee's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(g) any other matters that the Commission considers relevant."
[70] The first issue to determine is whether there was a valid reason for the termination for the applicants' employment. A refusal to obey a lawful and reasonable direction can constitute a valid reason for termination. In this case, I find that the relevant direction to the applicants was that they receive and hand out the keys for the pool vehicles and log those transactions on the relevant data base. The applicants' evidence was that they were willing to receive and hand out the keys. Indeed while the evidence indicates that the applicants had a range of concerns with the changes introduced by Mr Cooper when he took over as FSO they asserted that the only task they refused to perform was to log the issuing and receipt of the pool vehicle keys on the data base.
[71] To be lawful the direction needs to be consistent with the applicants' contracts of employment. In particular the direction must be within the scope of the jobs for which the applicants were employed. There is some doubt about the status of the duty statement prepared in 2003. The evidence of Mr Castelli is that the statement of duties was never formally approved. The evidence indicates that Mr Lambeth and Mr Chircop were both given duty statements when they commenced employment with UWS. It is reasonable to regard those duty statements, as well as the statements prepared in 2003, as broadly indicative of the range of duties applicable to the applicants. I have also had regard to the terms of the General Staff Agreement, as well as the evidence from Mr Castelli (and other witnesses) concerning the working practices of security officers at the university. From all these sources, it is clear that the job of a security officer at UWS is quite wide ranging. As well as patrolling the grounds, security officers provide a range of services, including those concerned with the security and management of university assets. These include the issuing and receipt of keys as well as incidental clerical functions. Having to issue and receive keys for the pool vehicles and log those transactions on to a database is squarely within the scope of the type of security duties the applicants were engaged to perform.
[72] Ms Andelman submitted that the pool vehicle duties the applicants were asked to perform were inconsistent with contractually binding promises made to the applicants that there would be no change to their duties arising from the organizational restructure which led to the creation of the FSO positions. According to the objective theory of contract it is not enough that one of the parties think they have been made a contractually binding promise.
"It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That normally requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction." [3]
[73] The indications given at the time of the restructure that it was not expected that the changes would have any flow on effects to security officers have none of the hallmarks of a contractual promise, when considered objectively. It is extremely difficult to see how a statement commencing with the words 'It is not expected' could amount to a contractual promise. It is also relevant that the document came into existence several years after the applicants' employment commenced. There is nothing about the document that would suggest to a reasonable person that it was contractual in nature. I conclude that the direction that the applicants refused to obey was well within their contract of employment. It was lawful.
[74] The direction was also reasonable. I do not consider that an undertaking even of a non contractual nature was broken. All that happened was that there was no expectation that the restructure would lead to any change in the duties of Security Officers. As it turned out, there was a slight alteration in that the FSO delegated a minor additional duty to the security officers. It is clear from the evidence of Mr Castelli that the pool vehicle duties the applicants were being asked to perform were very simple. Mr Cooper made it quite clear he was happy to show the applicants what was involved and to provide the limited amount of training necessary.
[75] There may be some situations where a failure to abide by a lawful and reasonable direction may not amount to serious misconduct, and by inference may perhaps not constitute a valid reason for the termination of employment. As noted previously, Ms Andelman referred to the case of Bruce v AWB. In that case, the Federal Court found that the applicant incorrectly took the view that an organizational restructure that meant he longer reported directly to the Managing Director was inconsistent with his contract of employment. Nevertheless, the Court found that:
"17. The evidence does not disclose conduct on the applicant's part amounting to serious misconduct, that is to say conduct constituting a serious breach of contract or evincing an intention no longer to be bound by the contract."
[76] However the facts in that case are very different to those here. In Bruce v AWB the position taken by the applicant was found by the Court to be a tenable one, though ultimately incorrect. In this case I consider the position adopted by the applicants as completely misconceived. More importantly, the Court found that Bruce did not do anything in breach of his contract. While he expressed his views about the effect of the restructure on his contract, he did not insist on reporting to the Managing Director. By contrast, the applicants in the case now before the Commission repeatedly refused to obey their employer's lawful and reasonable direction.
[77] While the applicants were paid in lieu of notice, they were terminated by the respondent for serious misconduct. Ms Andelman submitted that their actions were not serious misconduct as defined in clause 29 (9) of the GSA. I do not agree. The applicants actions were not a minor infraction with little consequence, such as might be tolerated by a reasonable employer. While the task they refused to perform was a simple one, the practical effect of their refusal to was to undermine the proper workings of the Vehicle Fleet Management System, which had a significant role to play in the delivery of the University's services.
[78] I find that the refusal of the applicants to obey the lawful and reasonable direction of the respondent constituted a valid reason for the termination of their employment.
[79] The applicants were notified of the reason for the termination of their employment. Mr Byrne's letter to the applicants on 15 May 2007 made it clear that their continued refusal to manage the pool vehicle keys could result in action under the misconduct procedures under the GSA and could lead to disciplinary action up to and including the termination of their employment. This was reiterated on a number of occasions. The applicants were also given numerous opportunities to respond to the allegations made against them. They did not deny their refusal to comply with the university's direction; instead they sought to justify it.
[80] The respondent is a large employer, with dedicated human resources staff. It can reasonably be expected to have proper human resource management procedures in place. I do not think these factors weigh in favour of the applicants in the circumstances of this case. Nor in the face of their continued refusal to comply with a lawful and reasonable direction do I consider that that the applicants' length of service, age or similar factors makes the termination of their employment harsh, unjust or unreasonable.
[81] Ms Andelman submitted that the Commission should have regard to the failure of the university to comply with the dispute settling procedure in the GSA. As outlined previously, Mr Lambert's letter to Ms Lyons on 18 May 2007 stated that Mr Cooper, and Mr Byrne had failed to consider the issues and concerns he had raised and had not followed the procedures outlined in the dispute settlement procedure in the GSA. He then asked for a meeting with Mr Serena to resolve the issue under clause 5.6 of the GSA. In the absence of any such meeting being organized he then wrote a further letter to Ms Lyons on 28 May 2007, indicating that if the university continued to ignore the dispute resolution procedure he would have to take the matter to the Industrial Relations Commission. Ms Lyons wrote back that the University was of the view that the Dispute Resolution procedures set out in clause 5 of the Agreement were not applicable to the matter as it does not concern a "dispute regarding the interpretation, application or operation of a provision of this Agreement". She also indicated that the dispute resolution process had not been properly initiated by either party in this matter and it would not be appropriate for any such process to be on foot whilst the matter was being dealt with under clause 29 of the agreement.
[82] There is nothing in Clause 5 of the GSA that prevents a matter being dealt with under the dispute settlement process merely because the university had commenced misconduct proceedings. Moreover it would be possible to characterize at least elements of the dispute between the applicants and the university as concerning the interpretation, application or operation of a provision of the agreement. In particular, clause 38 deals with the appropriate classification of each position. Indeed, clause 38 specifically provides a process for employees to seek to have their position statements updated, and for their positions to be reclassified if appropriate. The applicants did not seek to avail themselves of this process, and no one ever seems to have suggested its use, but it could have provided a sensible mechanism for resolving the matter. However, it would have required the applicants agreeing to undertake the pool vehicle duties while the process was under way.
[83] A greater willingness to use the provisions of the GSA to resolve the dispute may have avoided the situation where, in the words of Mr Castelli:
"It has escalated to where three staff have been terminated over a very trivial matter." (Exhibit A8, paragraph 18)
[84] Some of the blame for this must fall on the respondent. The university should have taken up the suggestion that the dispute settlement process be used. The question to be determined is whether, taking into account all the circumstances of this case, and the need to provide 'a fair go all round' this makes the termination of the applicants' employment harsh, unjust or unreasonable? I do not consider that it does. The applicants persistently and despite repeated warnings refused to comply with a lawful and reasonable direction. The failure to make use of the dispute settlement procedure does not in any way excuse what I have already determined to be serious misconduct.
[85] Having regard to all the circumstances of the case, and the relevant statutory requirements, I find that the termination of the applicants' employment was not harsh, unjust or unreasonable. The applications are dismissed.
Ms Larissa Andelman and Mr Andrew Bide appeared for the Applicants
Mr James Miller and Ms Natasha Rontidis appeared for the Respondent
Extracts from University of Western Sydney General Staff Agreement 2006-2008
(1) The University and its employees have an interest in the proper application of this Agreement and in minimising and settling disputes about matters in this Agreement in a timely manner.
(2) A dispute regarding the interpretation, application or operation of a provision of this Agreement will be resolved using the procedures set out in this Clause. Throughout this process the employee(s) may choose to be assisted by or act through their chosen representative.
(3) With the exception of critical issues of occupational health and safety, normal work will continue while the procedures under this clause are being followed and no party to the dispute will take any action to aggravate a matter in dispute.
(4) If an employee has a dispute with the University, where practicable they should attempt to resolve the dispute informally through discussion with their supervisor.
(5) If an employee has been unable to resolve a dispute informally, the employee may request a formal meeting with the employee's supervisor to attempt to resolve the dispute, and the meeting must be held within 5 working days of the request being made, unless agreed otherwise.
(6) If a dispute is not resolved in a formal meeting with the employee's supervisor, the employee may request a formal meeting with the relevant Executive Dean/Director to attempt to resolve the dispute, and the meeting must be held within 5 working days of the request being made, unless agreed otherwise.
(7) A party to the dispute may request a meeting with the other party to the dispute to attempt to resolve the dispute, and the meeting must be held within 5 working days of the request being made, unless otherwise agreed. The parties to the dispute will discuss the dispute resolution process they wish to apply in the case of each separate dispute. If they cannot agree on a particular process in a particular case, the following process will apply.
(8) Should the dispute not be resolved by the processes referred to above, or if there is an identified urgent need to have the matter resolved, either party to the dispute may refer the dispute to the Australian Industrial Relations Commission for conciliation and if necessary, arbitration.
(9) In dealing with the dispute, the Commission may exercise the procedural powers in relation to hearings, witnesses, evidence, interim decisions and submissions which it deems necessary to make such dealings effective.
(10) The Commission may, subject to any reasonable limitations imposed by the Commission, permit a party to the dispute to be represented through the arbitration process. The parties to the dispute agree to be bound by the arbitrated decision by the Commission in resolution of the dispute.
(11) The arbitrated decision of the Commission will bind the parties to the dispute, subject to either party exercising a right of appeal against the arbitrated decision to the Full Bench if they believe there has been a significant error of fact or law in the first instance.
(1) The University may only take action against an employee for misconduct or serious misconduct under this clause.
(2) If a matter involving misconduct has been dealt with in good faith under Clause 46 Unsatisfactory Performance of the Agreement it will not be necessary to follow this clause.
(3) If the University considers there is a potential conflict of interest, the University may nominate an alternative Executive Dean/Head of School/University Executive member for the purposes of this clause.
(4) An employee may choose to be accompanied by a work colleague or their representative to any counselling session or meeting held under this clause.
(5) A supervisor will make all reasonable efforts to informally resolve instances of possible misconduct using discussion, guidance, counselling and/or staff development.
(6) If a supervisor is unable to resolve instances of misconduct informally, they will refer the matter to the Executive Dean or Director for preliminary investigation.
(7) If an allegation made against an employee involves research1, the matter will be referred to the University member responsible for research (Research Executive member) for preliminary investigation.
(8) If an allegation of serious misconduct is made against an employee, the matter will be referred immediately to the Executive Dean or Director for preliminary investigation.
a. serious misbehaviour of a kind which constitutes a serious impediment to an employee carrying out their duties or to a employee's colleagues carrying out their duties
b. serious dereliction of the duties required of an employee in their particular position; or
c. conviction by a court of an offence which constitutes a serious impediment to an employee carrying out their duties or to a employee's colleagues carrying out their duties.
(10) If, following a preliminary investigation, the Executive Dean, Director or Research Executive believes an allegation of misconduct or serious misconduct warrants further action, they will notify the employee in writing describing the alleged misconduct in sufficient detail to allow the employee to understand the allegation and give the employee an opportunity to respond in writing within 10 working days.
(11) During an investigation of alleged serious misconduct, an employee may be suspended from duty with pay if there is a possibility of a risk to the health or safety of a person; or to the security, reputation, viability or profitability of the University's business; or of interference with evidence relevant to the investigation.
(12) During an investigation of alleged serious misconduct, an employee may be suspended from duty without pay if the alleged misconduct amounts to conduct such that it would be unreasonable to require the University to continue employment during a period of notice, provided that:
a. if suspension without pay occurs at a time when the employee is on paid leave, they will continue to be paid for the period of leave
b. during suspension an employee may engage in paid employment outside the University or take any annual leave or long service leave.
(13) If an employee has been suspended without pay, the University will do everything that is practically possible to expedite the procedures in this clause.
(14) During a period of suspension from duty, an employee may be excluded from the University except for reasonable access to prepare their case and collect personal property.
(15) Where an employee has been suspended without pay and after investigation the allegations are not sustained, any lost income will be reimbursed.
(16) If an employee denies allegations of misconduct or serious misconduct and the Executive Dean, Director or Research Executive member decides that there has been no misconduct or serious misconduct then they will advise the employee of this decision in writing within 10 working days of receiving the employee's denial.
(17) If an employee denies allegations of misconduct or serious misconduct and the Executive Dean, Director or Research Executive member decides that there has been no misconduct but that the employee's conduct has been unsatisfactory, the Executive Dean, Director or Research Executive member may counsel the employee within 10 working days of receiving the employee's denial and take no further action.
(18) If the employee admits that all of the allegations of misconduct or serious misconduct are true, then the matter will be referred to the University Executive member responsible for employment (Employment Executive member) who within 10 working days of the admission will:
a. issue a formal written warning that any repetition of misconduct will result in demotion or termination of employment;
b. demote the employee by one or more salary levels or increments and/or issue a formal written warning that further instances of misconduct may result in further demotion or termination of employment; or
c. in the case of serious misconduct only, recommend to the Vice Chancellor to terminate the employment of the employee with notice in accordance with this clause.
(19) If an employee denies allegations of misconduct or serious misconduct in part or in full or does not respond to the allegations and the Executive Dean, Director or Research Executive member believes that there has been misconduct or serious misconduct, then they will refer the matter to the Employment Executive member. The Employment Executive member will within 10 working days of receiving the employee's denial advise the employee in writing that the matter will be referred to a Misconduct Committee unless the employee elects within 5 days of receipt of the advice to have it formally investigated.
a. provide the employee with an opportunity to be interviewed
b. interview any person to establish the facts and any mitigating circumstances
d. take into account any information relevant to the matter
e. give adequate opportunity to the employee or their representative to respond to the allegations and/or make submissions and/or challenge any evidence.
(21) In a case involving an allegation of misconduct in research, the Research Executive member will nominate who should investigate the matter.
(22) If, following a formal investigation of misconduct or serious misconduct, the Employment Executive member decides there has been no misconduct or serious misconduct then they will advise the employee of this decision in writing within 10 working days of the completion of the investigation and provide them with a copy of the investigation report and may, with the agreement of the employee, publish the advice in an appropriate manner.
(23) Where a matter is referred to a Misconduct Investigation Committee, the Committee shall be convened within 15 working days where possible. The Misconduct Investigation Committee shall consist of 3 members as follows:
a. an employee of the University nominated by the University; and
b. a trained employee of the University who is nominated by the affected employee and who is drawn from a pool of employees selected through an expression of interest process determined by the staff-elected representatives of the Implementation Committee; and
c. an independent Chair selected by the Vice-Chancellor from a pool of Chairs. Chairs appointed under this clause shall have relevant experience and be independent. In instances of misconduct in research, the nominees do not have to be employees of the University.
(24) The terms of reference of a Misconduct Committee will be to report on the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances are evident.
a. provide an opportunity for the employee to be interviewed and make submissions and present and challenge evidence regarding the allegations, including asking questions of anyone interviewed by the Committee
b. interview any person to establish the facts and any mitigating circumstances
c. conduct all interviews in the presence of the employee except in cases of alleged harassment, bullying or intimidation of a person, in which case that person may be interviewed by video
d. allow the employee and the University to choose to be assisted by an employee of the University or their representative
e. conduct proceedings as expeditiously and confidentially as possible, consistent with the need for fairness
f. take into account any other information relevant to the matter
h. provide a written report to the Employment Executive member with a copy to the employee as soon as possible following the conclusion of the proceedings.
(26) The employee will be given 5 working days to respond to the report of the formal investigation or Misconduct Committee.
(27) Having considered the report of the formal investigation or Misconduct Committee and the response of the employee and any mitigating circumstances, the Employment Executive member may within 10 working days:
a. decide there has been no misconduct or serious misconduct and immediately advise the employee in writing and may, by agreement with the employee, publish the decision in an appropriate manner
b. decide there has been misconduct or serious misconduct, and
i. formally censure and/or counsel the employee; this may include issuing a formal written warning that if further instances of misconduct occur further action may be taken
ii. demote the employee by one or more classification levels or increments; this may include issuing a formal written warning that if further instances of misconduct occur further action may be taken
iiii. recommend to the Vice-Chancellor the termination of the employment of the employee, provided that a decision to terminate the employment of the employee can only be made in instances of serious misconduct.
(28) If a recommendation has been made to the Vice-Chancellor to terminate the employment of an employee for serious misconduct, the Vice-Chancellor on consideration of the matter may within 10 working days:
a. refer the matter back to the Employment Executive member for other action; or
(29) This clause in no way constrains the University from carrying out other or further investigations relating to the consequences of conduct of a employee or former employee when required in the public interest.
(30) Where a decision to take action has been made in accordance with this clause no further appeal can be made within the University. Nothing in this clause will be construed as excluding the jurisdiction of any external court or tribunal which, but for this clause, would be competent to deal with the matter.
(31) Nothing in this clause prevents or affects the procedures for the termination of employment of an employee on probation under Clause 39 Probation of the Agreement.
(1) Every position at Salary Levels 1-9 will have a position statement developed within the context of the work unit describing a position's purpose, key functions, activities and various skills required as set out in the position descriptors in Schedule 4 of the Agreement.
(2) If a position is one of a group of like positions across an organisational area, then any changes to that position statement will be considered within the context of the whole group. The fact that a position is one of a group of like positions does not prevent that position from being considered for classification as a separate position.
(3) The information in a position statement will be used by the University to classify a position according to the position descriptors in Schedule 4 of the Agreement. Classification/reclassification will occur in a timely manner.
(4) Classification will be undertaken by persons trained in formal classification processes, who are nominated by the Director, Human Resources.
(5) An employee or their supervisor may at any time initiate discussions regarding the currency of the employee's position statement and classification level.
(6) Where there is agreement between the employee and their supervisor that the position statement is inaccurate, it will be revised by them and submitted to their Executive Dean/Director.
(7) If there is no agreement, the employee may then make a submission directly to their Executive Dean/ Director.
(8) If the Executive Dean/ Director are of the view that the work needs to be done, and that a revised position description is accurate, the revised position statement will be forwarded to an authorised and trained person for consideration for reclassification.
(9) The employee will be advised in writing of the outcome of their submission for reclassification by the Executive Dean/ Director, including the reasons for rejection.
(10) A position will not ordinarily be reclassified within 12 months of its last reclassification review, unless a significant restructure of the work area has taken place.
[1] Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120 (7 August 2007)
[3] Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 179
Printed by authority of the Commonwealth Government Printer
Richard Lambeth, Jacqueline Bohun and Joseph Chircop
University of Western Sydney [2009] AIRC 47;