Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2020] FWC 3159 of Commissioner Bissett at Melbourne on 29 June 2020 in matter number C2017/3152 - permission to appeal refused.

[1] Mr Toby Tucker (the Appellant) lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required, against a Decision[1] of Commissioner Bissett issued on 29 June 2020 dealing with the Appellant's application under s.739 of the Act for the Commission to deal with a dispute in accordance with the dispute resolution procedure of the Victorian Public Service Enterprise Agreement 2016 (2016 Agreement). The Respondent to the appeal is the State of Victoria.

[2] The Appellant was, until his dismissal on 19 July 2019, employed by the Respondent as a Senior Solicitor (VPS Grade 5 VR 2) in the Customer Services and Debt Management Branch at the State Revenue Office in the Department of Treasury and Finance.

[3] The Appellant raised two issues in his application about which he was in dispute with the Respondent. The first concerned the correct classification of the position he occupied. The second concerned his pay progression in conjunction with misconduct processes. It is the second issue with which the Decision is concerned.

[4] On 27 June 2019, the Commissioner dismissed the Appellant's claim for re-classification.[2] The Appellant requested the Commissioner not deal with the second issue until after a proceeding in the Supreme Court of Victoria in which he was involved was finalised. Judgment in that proceeding was delivered on 16 July 2019. [3]

[5] The Appellant also commenced an unfair dismissal proceeding on 30 July 2019. As will shortly be apparent, an issue with which this appeal is concerned is whether the Commissioner erred in refusing to admit into evidence materials filed in the unfair dismissal proceeding.

[6] Although, pursuant to s.607(1)(b) of the Act the parties gave consent for the appeal to be conducted on the papers without a hearing, the Appellant maintained his objection to the Respondent's application for permission to be represented by a lawyer. Permission is not required in a case where there is no hearing and the matter is to be determined on the written submissions filed.[4] Accordingly as it appears to us that the appeal can be adequately determined without the parties making oral submissions, we determined to conduct the appeal without holding a hearing_._

[7] The Full Bench has now heard the parties on permission to appeal and the substantive appeal.

[8] After dealing with some introductory matters, the Commissioner set out some background matters including the workplace instruments relevant to the proceeding at [9]-[16] of the Decision.

[9] At [17]-[24] of the Decision, the Commissioner discusses the matters in dispute and at [25] she records that in order to resolve the disputed matters, the parties had agreed that the following four issues required determination:

1. Does the Commission have jurisdiction under the 2016 Agreement to arbitrate Mr Tucker's claim for progression in relation to the 2015 progression year (year ending 30 June 2015). Matters relating to the 2015 progression year arise under the 2012 Determination;

2. Does the Commission have jurisdiction to deal with Mr Tucker's claim for progression in the 2019 progression year (that is the year ending 30 June 2019);

3. The construction of the progression pay clause (clause 24), in particular:

a. The circumstances under which an employee will be entitled to progression; and

b. The circumstances when an employee will not be entitled to progression in particular when misconduct is found to have occurred;

4. The merits of Mr Tucker's claim to progression. (Related to this is a range of objections raised by the State to material filed by Mr Tucker and an objection by Mr Tucker as to how the State's those objections should be dealt with.)"

[10] As to these issues the Commissioner determined she would "deal with the jurisdiction of the Commission to deal with the 2015 and 2019 progression years, the interpretation of the progression clause, the State's objection to the material filed by Mr Tucker in March 2020, the objection of Mr Tucker to dealing with the States objection to additional material and Mr Tucker's objection to the State being given the opportunity to file further evidence."[5]

[11] The Commissioner decided not to "deal with the merits of Mr Tucker's claim for progression as it was dependent on rulings in relation to the objections raised."[6] The Commissioner observed that items 1 and 2 in [25] of the Decision reproduced above concern "the jurisdiction of the Commission and relate to whether the matters in dispute raised by Mr Tucker (in relation to progression) were properly raised pursuant to the dispute settling procedure of the 2012 Determination or the 2016 Agreement."[7]

[12] The Commissioner first considered whether there was jurisdiction to deal with the Appellant's claim for progression pay in the 2014/2015 year (2015 progression pay). The Commissioner sought to ascertain whether there was a 'dispute' being considered pursuant to clause 11 of the Victorian Public Service Workplace Determination 2012 (2012 Determination), which was saved by clause 6.4 of the 2016 Agreement.

[13] Relevantly, clause 6.4 of the 2016 Agreement stipulates:

"6.4 A dispute or grievance that is being considered pursuant to clause 11 of the Victorian Public Service Workplace Determination 2012 at the time this Agreement commences operation may continue to be considered pursuant to clause 12 of this Agreement."

[14] Earlier in the Decision, the Commissioner noted:

"[15] The effect of clause 6.4 of the 2016 Agreement is that a dispute properly raised in accordance with clause 11 of the 2012 Determination that is being considered can continue to be dealt with under clause 12 of the 2016 Agreement.

[16] The effect of the savings clause is not to preserve the old dispute resolution clause or any aspect of the old agreement or determination but rather to allow the dispute to continue to be dealt with under the later dispute resolution procedure. The effect of each of these clauses is that a dispute properly raised under the 2012 Determination may be "preserved" and able to be dealt with under the 2016 Agreement."[8]

[15] The Commissioner set out the terms of clause 11 of the 2012 Determination including clause 11.5.1 of the 2012 Determination which stipulates:

11.5.1 The parties to the dispute and their representatives must genuinely attempt to resolve the dispute through the processes set out in this clause and must cooperate to ensure that these processes are carried out expeditiously."[9] [Emphasis in Decision]

[16] The Commissioner noted the Appellant's submission that in November 2015 he was told by his manager, Mr Graham George, that he would not receive his progression pay for that year.[10] The Commissioner was satisfied that on 18 December 2015 the Appellant formally raised objections to his progression payment being withheld and that those objections were responded to by Mr McKee, the Branch Manager.[11] The Commissioner was satisfied that the Appellant's CPSU representative raised the issues with Mr Heywood, the HR Manager, and that he responded in February 2016.[12] The Commissioner noted that the 2015 progression pay was mentioned again in email correspondence between the Appellant, Mr McKee and Mr Heywood commencing on 23 January 2017, and that by this time the 2012 Determination had ceased to apply having been replaced by the 2016 Agreement.[13]

[17] In assessing whether the parties "genuinely attempted to resolve the dispute" and whether the process is "carried out expeditiously" the Commissioner considered several factors.

[18] The Commissioner noted that the Appellant did nothing about the 2015 progression pay dispute for almost 12 months, suggesting that the Appellant was not genuine in his attempt to resolve the issue.[14] The Appellant's inaction demonstrated that the Appellant did not attempt to have the matter resolved "expeditiously".[15] The Commissioner noted that the Appellant "is a practicing lawyer...clearly competent...[and] not a novice in reading and understanding legal documents or legislation".[16] However, no explanation was provided "for his failure to attend to the 2015 dispute".[17]

[19] The Commissioner concluded at [50] of the Decision that:

"By allowing the matter to lapse I am satisfied that the dispute settling procedure in the 2012 Determination concluded at the time Mr Heywood responded to the CPSU Representative in February 2016."

[20] The Commissioner observed that by May 2016, the 2012 Determination ceased to apply, and therefore the 2015 pay progression dispute was not 'saved' by provisions of the 2016 Agreement.[18] The Commissioner consequently found that the Commission had no jurisdiction under the 2016 Agreement to arbitrate the Appellant's 2015 progression pay claim.[19]

[21] The Commissioner next considered whether there was jurisdiction to deal with the 2019 progression pay dispute. The Commissioner had regard to the dispute settling procedure in the 2016 Agreement, reviewed relevant authorities and considered the Appellant's email correspondence with various officers of the Respondent. The Commissioner was satisfied that the Appellant had "properly enlivened the jurisdiction of the Commission such that a dispute over the failure to make a progression payment for the 2019 year is properly before the Commission".[20]

[22] After summarising the parties' submissions about the 2019 progression pay dispute, the Commissioner, from [96] of the Decision, considered the meaning and effect of clause 24.3(g)(iv) of the 2016 Agreement in the context of the 2019 progression pay dispute. The clause relevantly sets out exceptions to an employee's eligibility for progression payments.

[23] Clause 24.3(g)(iv) of the 2016 Agreement is as follows:

(g) An Employee will be eligible to access progression or a top of Grade or Value

Range payment, if the Employee has been in his or her role for 3 months or more, except in the following circumstances:

(iv) the Employee is subject to proven misconduct as per clause 21 during the course of the performance cycle..."

[24] Having regard to clause 21.3 of the 2016 Agreement, the Commissioner first considered when misconduct is 'proven'.

[25] The Commissioner observed that an "employee is subject to proven misconduct under clause 21 ... when the employer has completed a consideration of the response of the employee under clause 21.11".[21] The Commissioner reasoned that this step is complete "when the employer determines the discipline outcome under clause 21.12(a) ...".[22] The Commissioner concluded, in the Appellant's case, that his misconduct was "proven at the time the [Respondent] determined the disciplinary outcome as required under clause 21.12(a) of the 2016 Agreement".[23]

[26] The Commissioner next considered whether, once misconduct is proven under the 2016 Agreement, an employee would be ineligible for progression pay in the year in which the misconduct occurred, rather than the year in which the employer determines the discipline outcome.

[27] The Commissioner noted that clause 24.3(g)(i), (ii) and (iii) make reference to points in time at which exceptions are to be determined, such as "at the time the performance review is undertaken" (regarding paragraphs (i) and (ii)) and an event "in existence as at June 30" (paragraph (iii)).[24] The Commissioner reasoned that if it was intended that the exception in clause 24.3(g)(iv) should be in relation to proven misconduct at the explicit time the performance review was undertaken, then a specific term would have been used.[25] The Commissioner accepted that this construction of the clause may result in an employee receiving a progression payment to which the employee is otherwise not entitled.[26]

[28] The Commissioner also stated that, on balance, an employee could not participate in progression whilst suspended.[27] The Commissioner concluded that the Appellant did not meet the eligibility requirements to participate in progression from the time he was stood down with pay on 9 June 2017.[28] The contention that because the Appellant was ready and available to work from the time he was suspended from duty (9 June 2017) until the termination of his employment, the Appellant qualifies for progression pay in the 2018 and 2019 performance cycle, was rejected.[29] The Commissioner reasoned that the Appellant could not participate in the steps necessary to determine a progression plan pursuant to clause 24 whilst he was not at work.[30]

[29] The Commissioner also considered (at [148] and onwards) whether to admit further evidence as sought by the Appellant and/or allow the Respondent to file further evidence in reply to that of the Appellant in relation to whether the Appellant did engage in misconduct such that he would not be eligible for progression pay. This issue arose before the Commissioner as a result of the materials filed by the Appellant after her directions were issued; this included materials in the Appellant's unfair dismissal application. The Commissioner considered the Respondent's various objections to the material filed.

[30] The Commissioner accepted the material filed by the Appellant in relation to the 2015 and 2019 progression years. However, the Commissioner did not accept the remainder of the material, noting that such material was "well beyond the permission granted".[31] As to the materials filed by the Appellant in relation to the unfair dismissal application, the Commissioner was not satisfied that she should accept this material.[32] The Commissioner reasoned that the appropriate time to file these materials was August 2018 when the Appellant was required to file in relation to the application subject to the progression pay proceedings.[33]

[31] The Commissioner also considered whether an estoppel arose because of the Supreme Court proceedings.[34] She was not satisfied that the Appellant was estopped by the Supreme Court proceedings from pursuing the findings of misconduct.[35] The Commissioner also noted the unfair dismissal proceedings on foot, and that that proceeding and the progression pay dispute both required consideration of whether the misconduct had occurred. Accordingly, the Commissioner set out a preliminary view that it would be inappropriate for two members of the Commission to be asked to determine the same question in relation to the same factual circumstances.[36]

[32] In the context of the last-mentioned matter above, and her various findings set out in the Decision, the Commissioner invited the parties to file further submissions.[37]

[33] The Appellant's first ground of appeal contends the Commissioner erred in her construction of clause 24.3(g)(iv) of the 2016 Agreement. He says the Commissioner should have found that an employee "is subject to proven misconduct as per clause 21 during the course of the performance cycle" in the year in which the employee is advised of the disciplinary outcome pursuant to clause 21.12(c) of the 2016 Agreement and that the eligibility exclusion applies only in that year.

[34] Ground 2 asserts that the Commissioner erroneously construed clause 24.3 of the 2016 Agreement and thereby erred in concluding that the Appellant was not eligible for progression pay by reason of the Respondent's decision to suspend the Appellant from duty.

[35] Ground 3 asserts that the Commissioner erred in concluding that there was no jurisdiction to determine the Appellant's dispute which arose in 2015 because that dispute was not one that could be 'saved' under the provisions of the 2016 Agreement. In making that conclusion, the Commissioner erred in making factual findings at [41] - [50] of the Decision, because she:

• denied the Appellant an opportunity to test the evidence relied on to make the findings; and

• made the findings absent of evidence.

[36] Ground 4 asserts that the Commissioner erred at [197] of the Decision in not accepting the Appellant's materials filed in his on-going unfair dismissal proceedings, thereby amounting to a denial of procedural fairness.

[37] In summary, as to grounds 1 and 2, the Appellant submits the Commissioner erred, inter alia, because:

• she effectively and impermissibly rewrote clause 24.3(g) of the 2016 Agreement by:

  • reading into the provision a new and independent criterion for being ineligible for progression payments, namely employees suspended as per clause 21 of the Agreement; and

  • reversing the syntax and timing of when the misconduct ineligibility criterion applies so that, instead of making ineligible for a progression payment an employee when misconduct allegations are 'proven', and an outcome is provided during the course of that year, the construction adopted results in ineligibility in a year if an employee was engaging in misconduct during that year provided that the misconduct is 'proven' under clause 21 sometime in the future.

• the construction permits the Respondent to delay an investigation of misconduct and "sit" on allegations of misconduct for an unlimited period of time, and to retrospectively claw back previously paid annual progression pay rises, contrary to the express requirement in clause 21 to investigate alleged misconduct "expeditiously";

• the construction adopted is untenable in practice as an employee may never be provided with a disciplinary outcome and the disciplinary outcome only becomes quantifiable when the Employer advises the Employee of the outcome;

• the construction adopted creates an unfairness as it endorses a "guilty until proven innocent" application of clause 24.3 in the case of a suspension; and

• the drafting of the corresponding provision in the proposed 2020 enterprise agreement provides contextual support for the construction for which the Appellant advocates and sheds light on the intention of the drafters.

[38] In relation to ground 3, the Appellant submits that the relevant question before the Commissioner was whether the dispute regarding the 2015 progression pay was on foot as at 18 May 2016, the date when the 2016 Agreement replaced the 2012 Determination. The Appellant asserts that the dispute was not abandoned, he was simply awaiting the Respondent's response to his claim. He says that during the hearing on 29 April 2020, the evidence on which parties sought to rely was inconsistent and none of the evidence was subject to testing, no witness was cross-examined, and no document or witness statement was tendered. The Appellant therefore contends the Commissioner erred in making adverse findings against him whilst denying him an opportunity to explain any inconsistency in his account and challenge the Respondent's account. This amounted to a denial of procedural fairness.

[39] The Appellant also contends that the Commissioner's finding that the Appellant was not genuine in the 2015 pay progression dispute was irrational as no evidence or documents were tendered at the hearing. Further, the Commissioner failed to engage with the Appellant's evidence.

[40] As to ground 4, the Appellant contends that the Commissioner's ruling to deny the Appellant an opportunity to rely on materials filed in the unfair dismissal proceeding constitutes a denial of procedural fairness. This is because these materials represent the Appellant's core evidence rebutting the allegations of misconduct.

[41] In summary in respect of ground 1, the Respondent submits that:

• it relies upon proven misconduct to render the Appellant ineligible for progression pay in relation to the 2014/2015, 2015/2016 and 2016/2017 progression years;

• the wording of clause 29.5(b)(iv) of the proposed 2020 enterprise agreement is irrelevant to the construction of the 2016 Agreement and does not inform the objective mutual intention of the parties when they made the earlier agreement;

• the step of an employer determining a disciplinary outcome and the step of advising the employee of that outcome would often occur on the same day. Accordingly, there is a nominal difference between the findings made by the Commissioner and the position advocated by the Appellant. Furthermore, the notion that an employer may never communicate the discipline outcome is not realistic, having regard to clause 21;

• the contention that an employer's decision to determine a discipline outcome only becomes quantifiable when the decision is communicated to the employee is unfounded, as determination of a discipline outcome is a separate step required of employers under clause 21.12(a) of the 2016 Agreement;

• a degree of ambiguity exists in relation to the clause in respect of whether exclusion from eligibility for progression pay in relation to proven misconduct takes place in the year the misconduct occurred, or the year it was proven. The Commissioner correctly resolved this ambiguity by reference to the words used and the context in which they are used, contrary to the notion that her approach effectively "reversed the syntax and timing" of clause 24.3(g)(iv);

• the contention that the construction adopted by the Commissioner allows the Respondent to delay its misconduct processes to affect an employee's entitlement to progression pay is unrealistic given the process provided for in clause 21 of the 2016 Agreement;

• the reason for the significant delay between the allegations made against the Appellant and an outcome being determined in relation to the misconduct was because the Appellant instituted Supreme Court proceedings and sought injunctions preventing the process from being finalised; and

• the notion that the Respondent, knowing of alleged misconduct by its employee, would sit on those allegations, pay progression pay in respect of meritorious performance and then years later seek to rely on those allegations of misconduct as a basis to claw back the progression pay is unfounded.

[42] As to ground 2, the Respondent contends that:

• as the Appellant's suspension from 9 June 2017 spanned the entire 2017/2018 and 2018/2019 financial years, performance plans were not created and the Appellant did not perform any work during that time against which his performance could be assessed; and

• consequently, he was never eligible for progression pay as he did not satisfy the first requirement under the 2016 Agreement, which concerns meeting all of the elements of a performance plan.

[43] In relation to ground 3 the Respondent notes that the proceedings commenced by the Appellant in June 2017 concerned the classification issue and the pay progression issue. The parties filed evidence addressing both issues in 2018. Whilst the progression pay issue was put in abeyance at the Appellant's request pending the outcome of the Supreme Court proceedings, the hearing of the classification issue proceeded before the Commissioner. The witness statements filed by the Appellant and the Respondent were tendered at hearing and accepted into evidence. Accordingly, no witness statements needed to be tendered at the hearing as it had occurred in March 2019.

[44] The Respondent contends there is no real contest on the chronology of events on the evidence filed. It says the real jurisdictional question is whether as a matter of fact a dispute was "being considered" at the relevant point in time. It says that:

• any subjective explanation of why the Appellant did not agitate or press his dispute at the relevant time, as referenced in the Appellant's submissions, does not inform that question of fact;

• it should not be inferred that the Commissioner ignored the Appellant's evidence or did not take it into account; and

• there is no requirement for a decision maker to rehearse all the evidence in order to make a proper decision.

[45] In response to the claim that the Appellant was denied an opportunity to "test" the Respondent's evidence by cross-examining the Respondent's witnesses, the Respondent contended:

• that Counsel for the Respondent at the hearing made clear that witnesses were available if required;

• the Commissioner indicated that she would deal with arguments relating to the 2015 pay progression issue and issue a subsequent decision;

• the Appellant thereafter did not assert any requirement for cross-examination of the Respondent's witnesses in relation to the 2015 pay progression issue, despite the Respondent taking the Commissioner to the sworn evidence of the Respondent's witnesses; and

• it was incumbent on the Appellant to do more than make submissions in relation to the Respondent's evidence about the 2015 pay progression issue.

[46] In relation to ground 4, the Respondent contends:

• the Commissioner did not reject the unfair dismissal material in isolation, but rather refused the entirety of the Appellant's witness statement and submissions dated 25 March 2020 because that material had not been filed in accordance with the leave sought by the Appellant and granted;

• the documents filed in the unfair dismissal proceedings are subject to confidentiality and non-publication orders made by the Commissioner and such orders stand.[38] The Appellant's attempt to overturn the orders through an appeal in the progression pay proceeding is an abuse of process and should be disallowed; and

• the Respondent would be subject to procedural unfairness if the Appellant was permitted to rely on such evidence and dispute the misconduct findings for the first time, at this late stage of the proceeding. This is because the Appellant had an opportunity to file evidence earlier, including witness evidence, but he did not do so. Accordingly, the Respondent has emphasised its understanding that the Appellant did not propose to dispute in the progression pay matter whether or not the alleged misconduct occurred.

[47] The construction of an enterprise agreement or of a provision thereof, much like construing a statute, begins with a consideration of the ordinary meaning of the words, read in the context and evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an enterprise agreement is made and operates is also relevant. Thus, the language of an enterprise agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.[39]

[48] Clause 24 of the 2016 Agreement relates to the circumstances surrounding when an employee will or will not be entitled to progression pay. Clause 24.3(g)(iv) of the 2016 Agreement concerns a situation where an employee will be rendered ineligible for progression pay because the employee is subject to proven misconduct during the course of the performance cycle (that being, between 1 July to 30 June). So much is clear from clause 24.3(a) which provides that the "performance cycle is twelve months (1 July to 30 June)". Relevantly, the Appellant seeks to impugn two findings of the Commissioner: first, that for the purposes of 24.3(g)(iv), an employee is subject to "proven misconduct" when the employer determines the discipline outcome under clause 21.12(a); second, that the exception in clause 24.3(g)(iv) of the 2016 Agreement applies in the year the misconduct occurred.

[49] We deal first with the Appellant's contention that the Commissioner erred in "rewriting" clause 24.3(g)(iv) of the 2016 Agreement through her findings. This submission is unpersuasive. The Commissioner engaged in a conventional process of construing the relevant provisions of the 2016 Agreement in accordance with well-established principles regarding text, context and purpose.[40] In doing so, the Commissioner explicated the plain and ordinary meaning of the relevant clauses, a process which may involve synonymising specific words or simplifying the language contained within a clause to elucidate the relevant denotations of words. To this extent, we accept the Respondent's submission that the Commissioner's construction exercise was merely "the task the parties asked the Commissioner to undertake". Read in the context of clause 24 and of the 2016 Agreement as a whole, it seems to us plainly correct that the term "proven misconduct" in clause 24.3(g)(iv) means proven at the time the employer determined the disciplinary outcome as required under clause 21.12(a). That is what the words "as per clause 21" in clause 24.3(g)(iv) convey. The words "during the course of the performance cycle" refer to the period when the misconduct, later proven, occurred.

[50] Second, we reject the Appellant's submission that the wording of clause 29.5(b)(iv) of the proposed 2020 enterprise agreement sheds light on the drafters' intention as to how the exclusion to eligibility at clause 24.3(g)(iv) is intended to operate. There is no authority in the proposition that an unapproved version of a replacement enterprise agreement is relevant to the assessment of the drafters' intention of agreement clauses. Whilst it has been acknowledged that subsequent conduct may be relevant to the interpretation of an industrial instrument, such post-contractual conduct must be such as to found a settled interpretation accepted by the parties.[41] In this matter, it is not permissible to have regard to the replacement agreement to inform the relevant intention of the parties with respect to the meaning of clause 24.3(g)(iv). In any event, the intention of the drafter in positing the analogous provision in the proposed 2020 enterprise agreement, might equally be said to reflect the fact that the drafters intend a different application of the exception than that which pertains to the 2016 Agreement.

[51] Third, as to the Appellant's contention that the Commissioner's construction creates uncertainty and is untenable in practice as, amongst other things, an employee "may never be provided with a disciplinary outcome", the contention fails to appreciate that an employer failing to communicate a disciplinary outcome would be contrary to the objective of investigating and addressing alleged misconduct "expeditiously", as stipulated in the 2016 Agreement.[42] In any event the theoretical possibility that an employer may fail to communicate a disciplinary outcome to an employee is no reason not to give the provision the meaning ascribed by the Commissioner. The construction adopted by the Commissioner, and with which we agree, is not inconsistent with the 2016 Agreement's requirements for investigating and addressing alleged misconduct "expeditiously", for managing misconduct with minimal disruption, or for completing the misconduct process as "quickly as possible". Those requirements continue, and to the extent they create rights or obligations, are enforceable in the event of a breach.

[52] Fourth, we accept the Respondent's submission that there exists in practical terms only a nominal difference between the construction advocated by the Appellant and the construction adopted by the Commissioner. Whereas the Appellant asserts that the misconduct could only be plausibly proven when the final outcome is advised to an employee pursuant to clause 21.12(c), the determination of the disciplinary outcome (as per 21.12(a)) would logically occur in close temporal proximity with when an employee is "advised" of the disciplinary outcome. Having regard to this, and the purpose broadly to resolve such matters expeditiously, it is inconceivable that an employee could never be provided with a disciplinary outcome.

[53] Finally, the Appellant's contention that the Commissioner's construction is untenable because an employer's decision to subjectively determine a disciplinary outcome is "unquantifiable" and could only become quantifiable when the employer advises the employee of that outcome is rejected. As the Commissioner observed,[43] to the extent that clause 21.12(a) requires the employer to have completed a consideration of the response of the employee under clause 21.11, clause 21.12(a) can be viewed as being a distinct step required of employers. Accordingly, the employer "determining" the disciplinary outcome is not unquantifiable. In the context of a dispute, the time at which an employer made the determination may be objectively assessed through probative evidence.

[54] Turning next to the Appellant's submissions about the Commissioner's findings that the exception in clause 24.3(g)(iv) applies in the year that the proven misconduct occurred. The Commissioner found that once misconduct has been proven, it would render an employee ineligible for progression pay in the year in which the misconduct occurred. To the extent that an employee is found to have engaged in misconduct over one or more performance cycles, the Appellant asserts that it should only disentitle an employee to progression pay in the year it is proven.

[55] We reject the Appellant's submission that had the drafters of the 2016 Agreement intended clause 24.3(g)(iv) to operate in the way the Commissioner determined, then they would have included the wording used by the Commissioner when construing the clause.[44] Although the Respondent suggests that ambiguity exists in respect of how the clause operates, we do not agree. As we have already indicated, the words "during the course of the performance cycle" plainly refer to the period when the misconduct, later proven, occurred.

[56] The Appellant contends the Commissioner reversed the syntax and timing of when the ineligibility criterion applies in relation to clause 24.3(g)(iv) of the 2016 Agreement. He submits that the words in the clause are "subject to". They are not, as the Commissioner would have them, "engage in". Consequently, the Appellant contends an employee is eligible for progression if they were not subject to a misconduct outcome pursuant to clause 21 during the year. There is no force in the Appellant's submission. The Appellant's submission overlooks the importance of clause 24.3(g)(iv) in its context. Critically, the sub-clauses within clause 24.3(g) are very specific in respect of when an exclusion criterion contains a temporal element, as observed by the Commissioner at [108]. We agree with the Commissioner's conclusion that clause 24.3(g)(iv) must apply in respect of the same performance cycle for which progression pay is being considered. Accordingly, clauses 24.3(g)(iv) must apply in the performance cycle where misconduct occurred and is later proven. The evident purpose of the provision is to deny progression pay to an employee who engaged in proven misconduct in a particular progression year in which the misconduct occurred. The Commissioner's construction is consistent with the evident purpose disclosed by the text of the provision.

[57] There is no force in the Appellant's submission that the Commissioner's construction would allow the Respondent to delay investigations and "sit on" allegations in order to manipulate an employee's entitlement to progression pay. The requirements of the 2016 Agreement as concern investigating and dealing with misconduct continue to apply and are enforceable. The Appellant's submission that the conducting of performance reviews may be "impermissibly stayed pending the 'determination' of a misconduct outcome"[45] is also rejected. We accept the Respondent's submission that it would not be unreasonable for an employer to await the outcome of a misconduct investigation before determining an employee's eligibility for progression pay.

[58] For the reasons given above, we consider the Commissioner's construction of clause 24.3(g)(iv) of the 2016 Agreement was correct. Accordingly, appeal ground 1 would fail.

[59] By ground 2 of the notice of appeal, the Appellant seeks to impugn the Commissioner's finding at [147] that while the Appellant was not at work, he was not eligible for progression pay as he could not participate in the requisite steps relevant to determine a progression plan. The Appellant correctly says that "suspension" is not an express ground for ineligibility for progression pay in clause 24 of the 2016 Agreement. Moreover, clause 24.3(b) does require all employees to participate in the performance development and review process. However, the premise of the Appellant's submission is that in the absence of any clause prescribing suspension as a ground for ineligibility, employees meet the requirements under clause 24.3. This premise is flawed. The reasons for which were correctly identified by the Commissioner.

[60] In short, clause 24.3 renders an employee eligible for progression pay if they have met all of the elements of their individual performance plan in addition to not being rendered ineligible via the exceptions specified in clause 24.3(g). We agree with the Commissioner's findings that:

"[139] ... On balance however, it is difficult to see how an employee, suspended from work, could meet the standards of professionalism, capability and productivity which form the core of progression requirements, particularly in circumstances where Mr Tucker's stand down was on the grounds of misconduct subsequently substantiated.

[141] On balance I cannot see that an employee could participate in progression whilst suspended."[46]

[61] The Commissioner's construction did not involve inserting a new criterion concerning ineligibility for pay progression, rather, she properly construed the requirements of clauses 24.1(d) and 24.3(f) of the 2016 Agreement which concern the circumstances when an employee is eligible for progression pay. By not performing work, an employee is unable to satisfy the requisite requirements.

[62] We would also note that the Commissioner's construction does not bring about any degree of unfairness, particularly when applied to the Appellant's circumstances. The critical flaw of the Appellant's submission rests in the premise that progression pay under the 2016 Agreement is remuneration for the mere rendering of service rather than the performance of work in accordance with a developed and agreed performance plan. Progression is a reward for meeting agreed standards, described as the "progression criteria". The Appellant's contention that his ineligibility for performance pay whilst on suspension amounts to punishment and endorsing a "guilty until proven innocent" application of clause 24.3 is inaccurate and rejected. We accept the Respondent's submission that there is a legitimate balancing of rights conceivable in suspending an employee, including the right for an employer not to have to pay progression pay to an employee performing no work.

[63] We see no appealable error in the Commissioner's conclusion with respect to clause 24.3 of the 2016 Agreement. Appeal ground 2 would fail.

[64] The Commissioner found that the Commission did not have jurisdiction to arbitrate the Appellant's claim for the 2015 progression pay under the 2016 Agreement. This was because the 2015 progression pay dispute was not a dispute or grievance that was being considered pursuant to clause 11 of the 2012 Determination at the time the 2016 Agreement commenced operation. Consequently the 2015 progression pay dispute could not continue to be considered under clause 12 of 2016 Agreement. The Appellant takes issue with the Commissioner's findings on two bases. First, the finding was irrational and made in the absence of evidence. Second, he says he was denied procedural fairness as no opportunity was provided to him to test the Respondent's relevant evidence, including by cross-examining the Respondent's witnesses.

[65] The Commissioner's critical findings were reasonably open to her on the evidence. As the Respondent correctly contends, the jurisdictional question before the Commissioner was whether, having regard to the evidence, a dispute or grievance was "being considered" pursuant to clause 11 of the 2012 Determination as at 26 May 2016 (when the 2016 Agreement came into operation), so that it could continue to be considered under the 2016 Agreement. The Commissioner had regard to clause 11.5.1 of the 2012 Determination, which stipulates that "parties to the dispute" must "genuinely attempt to resolve the dispute" and ensure dispute resolution processes under the Agreement "are carried out expeditiously".

[66] Considering this context within the 2012 Determination, it was open for the Commissioner to evaluate the degree to which the Appellant's conduct "count[ed] against" the Appellant as "attempting to have the matter resolved expeditiously". The Commissioner noted that the Appellant "sat on his hands for almost 12 months ... [having done] nothing about the dispute". By this, the Commission was referring to the fact that no action took place between when Mr Heywood responded to the further issues raised by the Appellant's CPSU representative in February 2016 to the Appellant's correspondence in January 2017 which sought to reagitate the 2015 pay progression issue. We agree with the Commissioner that a "failure to take any action to progress the matter does not suggest a genuine attempt was made by [the Appellant] to resolve the issue". We also agree with the Commissioner's observation that the Appellant, as a practising lawyer, and not a "novice in reading and understanding legal documents or legislation", provided no explanation for his failure to attend to the 2015 pay progression issue.

[67] We reject the Appellant's submission that the Commissioner's findings were "irrational" by failing to have regard to the Appellant's evidence in respect of the "delays in agitating the dispute". In his witness statement dated 30 August 2018, the Appellant made reference to his "leave", "being consumed by work matters", "waiting for the Respondent's process to conclude" and other matters as explaining the delay. This explanation is concerned with why the Appellant did not take any action in relation to the dispute at the appropriate time. It confirms, rather than disputes that he did not take any action relevant to supporting a finding that the dispute was being considered pursuant to clause 11 of the 2012 Determination. On the evidence it was open to the Commissioner to conclude that by allowing the matter to lapse, the dispute had concluded or at least was not being considered pursuant to clause 11 of the 2012 Determination.

[68] The Appellant asserted that the Commissioner erred in failing to engage with the Appellant's evidence. We do not accept this submission, as the Commissioner considered the evidence relevant to the jurisdictional question. In any event, as the Respondent points out, there is no obligation on the part of a decision-maker to summarise all evidence in making a decision.

[69] We also reject the Appellant's contention that he was denied procedural fairness in being unable to test the Respondent's evidence. It is not the case that the Appellant was denied a right to cross-examine the Respondent's witnesses. In the hearing before the Commissioner, Counsel for the Respondent made clear that witnesses were available if required, but took issue with the additional materials filed by the Appellant following the Commissioner's directions:

"... I just want to make it clear just to sort of disabuse Mr Tucker of any view he has about what the State's up to. We've not said witnesses are not available. Witnesses are not seeking to hide from anything. But in terms of the proper order of witness, our submission is that the Commission needs to deal with it before witnesses should be subject to cross-examination."[47]

[70] The Commissioner did not make a ruling to the effect that the Appellant could not cross-examine the Respondent's witnesses.

[71] The Commissioner did not fall into appealable error in determining that the Commission had no jurisdiction to deal with the Appellant's 2015 pay progression dispute. Therefore, appeal ground 3 would fail.

[72] The Appellant's fourth ground of appeal is that the Commissioner fell into error at [194] by denying the Appellant an opportunity to rely on his materials filed in the unfair dismissal proceeding and that this amounts to a denial of procedural fairness.

[73] We agree with the Commissioner's finding that the unfair dismissal materials filed (materials filed) by the Appellant on 25 March 2020 were outside the scope of the leave granted. Leave was sought by the Appellant to file "short submissions" relating to the basis relied by the Respondent to deny progression as well as the Commission's jurisdiction to deal with the 2015 pay progression issue. Accordingly, it was within the Commissioner's discretion to not accept the materials filed that were unrelated to the 2015 and 2019 pay progression years. The appropriate time for the Appellant to have filed such materials was August 2018, when he was required to file in relation to the application before the Commissioner.

[74] In any event, as noted by the Commissioner at [195] of the Decision the materials at issue were subject to a confidentiality order,[48] meaning that accepting such materials would be contrary to the order. There is also force in the Respondent's submission that, contrary to the Appellant's contention, the Respondent would be subject to procedural unfairness if the Commissioner were to have accepted the unfair dismissal materials filed. As the Commissioner correctly observed at [200] of the Decision, the Appellant's evidence filed in 2018 proceedings did not suggest a denial on his part of the misconduct findings against him. By permitting the Appellant to rely on that material and seeking to challenge the misconduct at such a late stage in the proceedings, would put the Respondent at a disadvantage. The evidence and submissions prepared by the Respondent in 2018 were prepared on the basis that the Appellant did not dispute the misconduct findings against him.

[75] Overall, we see no appealable error in the Commissioner's discretionary decision at [197] in refusing to accept the material filed by the Appellant in his unfair dismissal application. Therefore, appeal ground 4 would fail.

[76] The Appellant submitted that permission to appeal should be granted because:

• The Decision is attended with sufficient doubt to warrant its reconsideration;

• It is important to uphold public confidence in the Commission and its ability to administer justice;

• The 2016 Agreement affects a large workforce of over 300,000 individuals, therefore the proper construction of its provisions effects a large workforce;

• The Decision, if erroneous, has unfairly exposed the Appellant to serious financial and reputational damage; and

• The Respondent's conduct in refusing to consider settling this matter and incurring significant legal costs constitute a breach of the Victorian Model Litigant Guidelines.

[77] The Respondent submitted that permission to appeal should be refused because:

• The Appellant has failed to demonstrate appealable error in the Commissioner's reasoning.

• In reality, the Appellant's case on appeal is that the Commissioner was wrong to reject the submissions he advanced at the hearing.

• The issues on appeal have no impact on any persons other that the Appellant. The jurisdictional matters on appeal turn on a finding of fact specific to the Appellant. The matters relating to the receipt of evidence is procedural, an appellate body would rarely intervene in such a case management issue. The substantive law issues on appeal relate to the construction of the 2016 Agreement, but specifically in relation to the unusual circumstances of the Appellant's employment.

[78] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission's powers on appeal are exercisable only if there is error on the part of the primary decision maker.[49] There is no right to appeal and an appeal may be made only with the permission of the Commission.

[79] Subsection 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is 'in the public interest to do so'. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[50] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[51] In GlaxoSmithKline Australia Pty Ltd v Makin[52] a Full Bench of the Commission identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters."[53]

[80] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[54] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

[81] Contrary to the Appellant's submissions, we are not persuaded the Decision is attended with sufficient doubt to warrant its re-consideration. We find no error in the Commissioner's construction of clauses within the 2016 Agreement, and the factual findings made were reasonably open to her. We also reject the submission that the Respondent's conduct in refusing to consider settling the matter, in addition to incurring significant legal costs, constitutes a breach of the Victorian Model Litigant Guidelines. In any event, such a submission would not on its own attract the public interest. Additionally, issues considered in the Decision and agitated on appeal do not raise any novel questions of law nor do they have any impact on persons other than the Appellant. Finally, there is also no procedural unfairness as contended, nor is the result counter intuitive.

[82] In substance this is a classical inter partes dispute. Because this dispute involves the exercise of private arbitral powers, its outcome is binding only on the parties to the dispute in the context of the dispute. The impugned construction adopted by the Commissioner has no broader application beyond the immediate parties. We are not persuaded that it is in the public interest to grant permission to appeal. Nor are we persuaded there is any other basis on which we should grant permission to appeal.

[83] For the reasons set out above, we are not satisfied, for the purpose of s.604(2) of the Act, that it would be in the public interest to grant permission to appeal. We are not persuaded that there is any other basis upon which permission should as a matter of discretion be granted. But even if we were minded to grant the Appellant permission to appeal, we would for the reasons stated, dismiss the appeal.

[84] Permission to appeal is refused.

[1] Tucker v State of Victoria [2020] FWC 3159 (Decision).

[2] Tucker v State of Victoria [2019] FWC 3896.

[3] Tucker v State of Victoria [2019] VSC 420.

[5] Tucker v State of Victoria [2020] FWC 3159 at [26].

[38] The Appellant's application to vary or revoke the confidentiality order was dismissed by the Commission on 18 May 2020 ( [2020] FWC 2593).

[39] See WorkPac Pty Ltd v Skene [2018] FCAFC 131, at [197] and the authorities referred to therein.

[40] See Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union v Berri Pty Limited [2017] FWCFB 3005 at [114] ('Berri'); see also WorkPac Pty Ltd v Skene [2018] FCAFC 131, at [197] and the authorities referred to therein.

[41] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union v Berri Pty Limited [2017] FWCFB 3005 at [106] ('Berri').

[44] Appellant's submissions, paragraph 46.

[45] Appellant's submissions, paragraph 52.

[49] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[50] O'Sullivan v Farrer and another [1989] HCA 61; (1989) 168 CLR 210 at [216]- [217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78; (2011) 207 IR 177 at [44]- [46].

[51] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

[52] [2010] FWAFB 5343.

[54] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

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