T9153
|
TASMANIAN INDUSTRIAL COMMISSION Decision Appealed - See T9442 and T9443 Industrial Relations Act 1984 Australian Municipal, Administrative, Clerical and Services Union and The Community and Public Sector Union
Industrial dispute - alleged unfair termination of employment - valid reason for termination - breaches of procedural fairness - termination unfair - reinstatement impracticable - compensation ordered REASONS FOR DECISION On 18 August 2000 the Australian Municipal, Administrative, Clerical and Services Union (ASU) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with The Community and Public Sector Union (State Public Services Federation Tasmania) (the employer) arising out of the termination of employment of Ms Carole Medcalf. This matter was first listed for hearing on 20 September 2000. Mr D Hanlon appeared for the ASU on behalf of the applicant. Mr R Grueber, a legal practitioner, sought and was granted leave to appear for the employer. Initially the applicant sought to have the matter stood over pending the determination of certain issues in the Anti-Discrimination Commission. However this position subsequently changed and the application was re-listed for 2 November 2000. Following preliminary submissions the hearing was adjourned into private conference, with the Commission, in an effort to find a resolution to the dispute. This, however, proved to be unsuccessful and the matter was set down for hearing on 16 November. Further hearings took place on 15, 20 and 21 December 2000. The following witnesses gave evidence: For the applicant:
For the Employer:
Chronology of Key Events
The Contract of Employment Ms Medcalf's letter of appointment, dated 8 December 1997, reads as follows:6
It is noteworthy that the letter contains the expression, "Other terms and conditions are similar to those that apply in the state public sector generally". A position description for Ms Medcalf was also entered into evidence7 but this does not materially impact on the contractual arrangements between Ms Medcalf and her employer. Of far greater importance is the status of the so called "Staff Agreement". In opening submissions Mr Hanlon tabled a document headed "Draft" with the title of "CPSU [SPSFT] Staff Agreement 1996"8. This document was not signed or dated. Mr Hanlon said that this was the copy made available to him by the ASU and asserted that the CPSU had a copy that was signed.9 As I understand Mr Hanlon's position, the importance of this document is two-fold. Firstly, it identifies the employer as the "Council of the CPSU". Secondly, the "Agreement" contains a "Dispute Procedure" expressed in the following terms:
It was Mr Hanlon's strong contention that this procedure was not followed in Ms Medcalf's case. The evidence of Ms Strugnell was that the 1996 Agreement was never completed and, as a consequence, did not come into force.10 Ms Strugnell said that the last completed Agreement commenced on 18 April 1991 and expired in April 1994.11 Whilst there are many similarities between the 1991 Agreement and the 1996 Draft, a noticeable difference is however the respective "Dispute Procedure" clauses. The 1991 procedure is probably not capable of literal implementation in the current legislative and industrial environment. I do however note that the spirit of both clauses are similar in terms of structured discussion with an ultimate referral to an independent "umpire", the decision of which is final. The position of the CPSU is that Ms Medcalf was not regulated by any binding Agreement or Award and as such was subject to Sections 46 and 47 of the Industrial Relations Act 1984 relating to award-free employees. The position is well summarised by Mr Grueber.12
I must say this submission does not sit entirely comfortably with the evidence. I instance the following:
I must say that I have found this a particularly frustrating issue to deal with. A perusal of the minutes of a 20 December 1999 Executive meeting may well have resolved it conclusively, but this was not submitted into the evidence. If I had to make a call I think it more likely that the 1996 Agreement had some level of currency than did the 1991 Agreement. I am not able to find, however, that either Agreement had binding effect on the parties during Ms Medcalf's period of employment. As it turns out, this has not had a pivotal impact on my ultimate finding on the fairness or otherwise of the termination of Ms Medcalf's services. During closing submissions Mr Hanlon contended that the Community Services Award arguably had application to the CPSU. Whilst this matter was not argued in any depth, for the sake of completeness I indicate that I do not accept Mr Hanlon's contention. It would however be quite wrong to conclude that the only relevant consideration is a clinical application of Section 47 of the Industrial Relations Act. I consider that the CPSU, possibly even more so than unions at large, should demonstrate quite exemplary processes in terms of procedural fairness. In this context I note with approval the observation of Robinson DP in the Ryan case.18
Whist the legislative scheme does not allow for a precise application of public sector process to a CPSU disciplinary situation I do consider the sentiment inherent in the Deputy President's comment to be persuasive. Was the Termination Consistent with the CPSU Rules? A recurring theme in the applicant's case was a contention that the termination was not consistent with the CPSU Rules. Whist I had some difficulty in following this argument, I believe a fair summary is as follows. Both the 1991 and 1996 Staff Agreements [previously discussed] identify the employer as the Council of the CPSU. A certified copy of the Branch Rules was submitted into evidence.19 Rule 6 provides generally that "The affairs of the Branch shall be managed by the Branch Council ..." Rule 6.1[l] provides:
The evidence of Mr Delaney was that during his term of office, and to the best of his knowledge, the Council had never referred the general power to terminate to the Executive.20 Mr Delaney confirmed that the role of the Executive was to manage the Branch between meetings of the Council. This had become increasingly important following the decision to extend Council meetings out to a quarterly basis. As I understand Mr Hanlon's argument, because there was no evidence of a delegation from the Council to the Executive or the General Secretary in relation to the right to hire and fire, then the termination of Ms Medcalf could only be effected by the Council. As this was not the case, it followed that the termination was invalid. In response Mr Grueber referred to the Minutes of the 26 July 2000 Executive meeting,21 which unanimously passed a resolution delegating authority to the General Secretary to take disciplinary action up to and including dismissal.22 Rule 10.1 states as follows:
I am satisfied that Rule 10 is sufficiently broad to enable the Executive to delegate the power to "hire and fire" to designated officers. The resolution of the Executive on 26 July was quite specific and, in my view, validly made. I therefore find that the termination was not improperly made by reason only of the fact that it was effected by the General Secretary, rather than the Branch Council. Termination with Notice or Summary Dismissal? Mr Grueber argued that Ms Medcalf's employment was terminated on the giving of proper notice, as distinct from summary dismissal. Certainly a reading of the letter of termination23 would support this contention. Mr Grueber also sought to distinguish this matter from the Martin case24 and I largely accept this submission. I do however note that there is a similarity between the two cases in that in both instances the dismissed employee was unceremoniously escorted off the premises. In the Martin case this led Heerey J to observe as follows:25
Whilst this matter and the Martin case can and should be distinguished in a legal sense, I suspect that for all practical purposes, Ms Medcalf and Mr Martin found themselves in remarkably similar circumstances. It is apparent that, during the 15 August meeting, the term "misconduct" was not used, nor was it mentioned in the termination letter of same date. In light of this I find it surprising Ms Strugnell ticked both the "unsatisfactory work performance" and "misconduct" boxes in the Employment Separation Certificate. 26 During Ms Strugnell's evidence the following exchange took place:27
And later:28
Leaving aside the legal niceties, in my experience termination with notice normally applies in circumstances whereby work performance is the key issue. In such circumstances a key element of natural justice and fairness must invariably be present. That is, an employee must be made fully aware of the expectations of the employer, and importantly, the consequences of not meeting those expectations. A short-hand version of this is that proper warnings must be in place. By contrast, a summary dismissal is more likely where serious misconduct is involved. In such circumstances, prior warnings are generally not required or expected. Nonetheless, the well established tests relating to misconduct must be satisfied. In short this means that the misconduct must be seen to be of such a nature as to strike at the heart of the employment contract. The giving of notice in a misconduct situation does not, in my view, render the employer immune from this test. In the instant case the evidence clearly suggests that issues falling into both the above categories are involved and I intend to address this application in such a vein. Legal Aid Incident This incident had as its genesis a letter of complaint from a CPSU member29 relating to a meeting of Legal Aid Commission members on 10 February 2000. The letter complained of "... despicable and disgraceful behaviour ..." on the part of Ms Medcalf. I hasten to add that Mr Grueber argued strongly that this incident did not form part of the issues which led to Ms Medcalf's termination. I accept this submission. I include this short summary of the incident for the sake of completeness, as I am convinced it did have a pivotal role in the ultimate destruction of the working relationship between Ms Medcalf and Ms Strugnell. This was unquestionably a serious complaint and Ms Strugnell quite properly commenced an investigation. This investigation included at least two meetings with Ms Medcalf, with note takers for both present. Mr Mazengarb was the note taker for Ms Strugnell. During his evidence the following exchange took place:30
A perusal of Mr Buza's notes31 suggests that Mr Mazengarb's recollection, to the effect that it was not a disciplinary issue, was a fair observation. During the period of the investigation Ms Strugnell received correspondence from a number of members at the Legal Aid Office. The common theme of this correspondence was support for Ms Medcalf and in particular the manner in which the 10 February meeting was handled.32 This in turn led to a letter from Ms Strugnell to Ms Medcalf dated 9 March, in the following terms:33
By letter dated 8 March Ms Strugnell said: 34
I find this to be a surprising rationale for the removal of Ms Medcalf from the Legal Aid portfolio given that Mr Buza's notes of the 1 March meeting,35 clearly indicate that Ms Medcalf advised Ms Strugnell that she was not proceeding with the legal action. This was clearly a difficult issue for both Ms Strugnell and Ms Medcalf and I do not have a view as to the rights and wrongs of how it was handled. I would not however be surprised if this marked the point when the proverbial battle lines were drawn. Allegations Which Led to Dismissal The issues which ultimately led to the decision to terminate the services of Ms Medcalf came to a head at the meeting of 15 August. For ease of consideration, I have attempted to summarise the allegations and place them in three broad categories. Very largely this summary has been taken from the notes of Mr Lynch36 and the evidence of Ms Strugnell. Category 1 The issues in this category are what I would describe as administrative/management matters. By and large they are embraced in correspondence from Ms Strugnell to Ms Medcalf dated 3 April 200037 and 13 April 200038. They include allegations under the following headings:
Category 2 This category includes issues which are performance related rather than strictly administrative in nature. They include allegations concerning the following:
Category 3 This category embraces allegations concerning matters which might best be described as activities designed to undermine the union. They include the following:
Before dealing with each of these categories in turn, it is appropriate at this stage to describe the procedure adopted in the presentation of these allegations. Ms Medcalf was given written notice of the meeting although the notice did not specify the issues to be discussed. At the meeting a series of allegations were put to Ms Medcalf and she was given the opportunity to respond. Ms Strugnell then asked Ms Medcalf to "show reasons why, in the light of all the issues raised, her employment should not be terminated".39 Mr Paterson then made further submissions on Ms Medcalf's behalf. Ms Medcalf offered the option of mediation and noted that she had raised this suggestion previously. Ms Strugnell then adjourned the meeting to consider the explanations provided by Ms Medcalf. Upon resumption approximately 1-1/2 hours later Ms Strugnell advised that the earlier responses from Ms Medcalf were unacceptable. A further opportunity was offered to Ms Medcalf to comment. She was then given the letter of termination40 and escorted from the union office. I now turn to examine the issues outlined above. The fact that the issues identified in category 1 did not materialise until the early part of 2000 is, I suspect, more than coincidental. From the moment of the 9 February Branch Council meeting, Ms Medcalf and Ms Strugnell became opponents and this was graphically illustrated in subsequent correspondence and the working relationship between the two. The following extract from the 3 April letter to Ms Medcalf is an example:41
The tenor of this correspondence can be contrasted with the Position Description for Ms Medcalf's role, which states, inter alia, as follows:42
I am in no doubt that Ms Medcalf was incensed by this and other correspondence and, I am advised, aspects of it are subject to a separate complaint with the Anti-Discrimination Commission. I would not for one moment suggest that Ms Medcalf is blameless in relation to the category 1 issues. Management is entitled to require compliance with reasonable administrative arrangements and policies, provided they are applied in an even-handed and consistent manner. There was in this case clearly a battle of wills involved and the evidence suggests that Ms Medcalf was less than co-operative in complying with the administrative requirements that were in place. Management was confronted with a series of administrative issues which, not unreasonably, they set out to address. This process continued, largely through correspondence, from April through to August 2000. This process was no doubt frustrating for both parties, but it was nonetheless an appropriate means of addressing the issues. At some stage Ms Medcalf apparently suggested mediation, but this, it appears, was not pursued. There was, however, one significant flaw in the process if the CPSU management intended to use these issues to justify the termination. At no stage in the process was it clearly stated that failure to comply with any or all of the management requirements, would result in the termination of Ms Medcalf's employment. The category 1 issues do not, either separately or collectively, constitute serious misconduct. It follows that for such issues to justify termination, the following must be satisfied:
The first of the above is clearly satisfied. It is unnecessary to make a finding on the second, except to observe that, provided the requirements were applied in an even-handed manner, there is no evidence to suggest that they are unreasonable. The third of the above was not in my view satisfied. It follows that if the reasons for the termination were limited to the category 1 issues, my finding would be that the termination was unfair. I turn now to the category 2 issues. The evidence indicates that Ms Medcalf failed to attend a number of staff meetings during July and August 2000. There was some debate as to the adequacy of Ms Medcalf's explanation for non attendance but, in my view, this is missing the point. Whilst I have little doubt that the attendance of all staff was expected, there was no evidence that attendance was compulsory, or what the consequences of non attendance were. In such a situation it was arguably open to Ms Medcalf to determine her own priorities. Whilst non attendance at these meetings was consistent with Ms Medcalf's combative attitude towards management, it does not constitute grounds which would justify termination. The organising plan for the Public Trustee Office and preparation of the "non expense related allowances claim" have common elements. In both cases management were unhappy with both the progress and adequacy of the projects. In both cases Ms Medcalf had an explanation which was at least plausible. If management remained dissatisfied, then dismissal was hardly the way to address it. It would be appropriate at this stage to acknowledge the point made by Ms Strugnell as to the collective weight of these various incidents. In short, Ms Strugnell observed that, taken individually, these issues may not appear overly serious. However, when added together, they constitute a far more compelling picture. There is force in this argument. However even the collective weight of these allegations does not substitute for that essential element of spelling out, in unambiguous terms, the consequences of continued non compliance with reasonable requirements. Hypothetically, that could be expressed in terms similar to the following:
Such an ultimatum was noticeably absent in the instant case. The issue of engaging in election campaign activities during paid work time occupied a significant amount of the total evidence although it is not entirely clear to me whether it ultimately formed part of the grounds for dismissal. The evidence of Mr Delaney was that a policy was in place which made it clear that the resources of the union could not be used in campaigning or running for office. On the question of what constituted "union resources", Mr Delaney said:43
During cross-examination Ms Medcalf agreed that she had met with a member in Launceston to canvass support for her campaign ticket, but that the meeting was during flex hours. This was not pursued. There was further evidence relating to a meeting in Prospect, but to my way of thinking, this was inconclusive so far as the question of electioneering was concerned. Mr Lynch, in his evidence, agreed that he had sent an e-mail to the University in relation to election matters. He said:44
Presumably this is the "fine line" Mr Delaney was referring to. Suffice to say that I do not accept that any of the activities of Ms Medcalf in relation to electioneering constituted grounds for termination. It follows that if the termination of Ms Medcalf was based solely on category 2 issues, or indeed category 1 and 2 combined, then I would find that the termination was unfair. This takes me to the category 3 allegations. The issues involved here could be broadly described as activities calculated to undermine the union. Unlike categories 1 and 2, this takes us into an area which, if proven and procedural fairness is seen to be followed, would almost certainly constitute misconduct. As such, my earlier observations on the need for warnings would not apply. The allegations relate to a series of e-mails, to and from Ms Medcalf. These e-mails were entered into evidence.45 In summary, these e-mails contain references which can fairly be described as:
There is no doubt in my mind that it was the discovery of these e-mails which transformed an unremarkable administrative process [albeit tedious and frustrating on both sides] into a situation whereby Ms Strugnell secured the authority to terminate Ms Medcalf and then proceeded to implement it. I return to the meeting of 17 July 2000. During the evidence of Mr Paterson, the following exchange took place:46
And later:47
This evidence was not challenged. On the question of changed circumstances between the 17 July and 15 August meetings, the following exchange occurred during Ms Strugnell's evidence:48
Thus it is clear that the pivotal issue in this case relates to the e-mails referred to above. Admissibility of E-mail Evidence During the 15 August meeting, the allegations put by Ms Strugnell referred to "... broadcast[ing], outside the organisation, comments ... considered were not in the interest of the union ..."49 Had these same comments been broadcast in a public sense, either in writing, by e-mail or verbally, there would in my view be no case to answer. Such a public broadcast would undoubtedly constitute gross misconduct. This case however is different. In every instance the e-mails could be characterised as private conversations intended for the recipient only. In some cases the offending passages constituted almost a "throw away line" in an otherwise totally unrelated "conversation". Several of the e-mails appeared to originate from Ms Medcalf's private e-mail address, as distinct from her CPSU address. Nonetheless there was no contest offered to the fact that all e-mails were discovered on Ms Medcalf's CPSU computer. The circumstances under which the e-mails were discovered were quite bizarre, though quite legitimate. In short, as a consequence of a comment made by Ms Medcalf during a staff meeting, the management embarked on an investigation relating to the security of the whole network, not just as it related to Ms Medcalf. It was during this process that offending e-mails came to light. It appears that the timing of this investigation was after the 17 July meeting and before the 26 July Executive meeting. It would not have been surprising that, on discovery of the e-mails, management would have been both offended and concerned. The course of action which followed was quite predictable. Procedural Fairness During the 15 August meeting a series of allegations were put to Ms Medcalf for response. The following example typifies the style in which these allegations were put:50
Prior to the adjournment no documentary evidence of the e-mails was provided nor was any indication given that the "private" e-mails referred to above were in fact the basis for the allegations. Following the adjournment, a copy of one e-mail,51 arguably the least offensive, was shown to Ms Medcalf. There was no evidence that Ms Medcalf was advised as to the source of the remaining [category 3] allegations. Indeed it is apparent that the first time Ms Medcalf became aware of the e-mails was during cross-examination in this hearing. Because we were venturing into previously uncharted waters [in my experience at least], I invited the parties prior to closing submissions, to address two issues:
Mr Hanlon sought to rely on the Federal Court decision in AMACSU v Ansett.52 This case concerned the use of the employer's e-mail system for the distribution of union material. In finding against Ansett, Merkel J made the following observation:53
It is common ground that the CPSU did not have a policy which precluded the use of e-mail for private purposes. In addressing the questions raised by the Commission, Mr Hanlon said:54
Mr Grueber sought to distinguish the Ansett case in that it wasn't a case about whether the e-mail system was private or could be used, but rather a case about whether, as a consequence of the worker using the employer's e-mail system for union activities, the termination of employment breached Section 298K of the Commonwealth Act. I accept the distinction drawn by Mr Grueber. Mr Grueber submitted that there is no general privacy law in Australia. He said that e-mails sent on an employer's computer can give rise to actions by third parties in respect to defamation, sexual harassment, anti-discrimination and breaches of copyright. Mr Grueber said:55
Mr Grueber submitted that it was not necessary to show Ms Medcalf the e-mails:56
In the absence of any clear guidance from the authorities, I accept that private e-mails, sent from an employer's computer, remain the property of the employer and in this context have the same standing as a hard copy file. I do not, however, accept Mr Grueber's contention that the CPSU was under no obligation to show Ms Medcalf the offending e-mails. Given the nature of the allegations and the repeated use of the term "broadcast", it would not be unreasonable for Ms Medcalf to think in terms of written documents or quasi public statements, rather than private e-mails intended for the eyes of the recipient only. This would be particularly so if Ms Medcalf, as it appears, was in the habit of using e-mail "conversationally". In this context, a "categorical denial", is not entirely surprising, even if inaccurate. Mr Lynch's comprehensive notes of the 15 August meeting include notes of the "Consideration of issues raised", during the adjournment. In relation to the e-mails, the following is recorded:57
In my view Ms Medcalf should have been shown a hard copy of the offending e-mails. The appropriate time for this would have been immediately following the adjournment although the timing is not critical. Whether or not Ms Medcalf had an acceptable explanation is not the point. Context is often important and Ms Medcalf should have been given the opportunity to offer an explanation, if indeed one was available. She was not given that opportunity. Given the serious and unusual nature of the allegations, I would go one step further and observe that Ms Medcalf should have been given adequate time to prepare a response. This could have been accommodated by either advance notice of the content of the 15 August meeting or alternatively an adjournment after the e-mails were shown. I consider this to be particularly important given that some of the e-mails originated from persons external and, arguably, they had a right to be involved. My conclusions are based on the well established rules of natural justice with particular regard to the procedures the CPSU would presumably expect to apply to their own members in similar circumstances. In this context I have been guided by the spirit and intent [but not the literal word] of the disciplinary procedural guide applicable to the Tasmanian public sector.58 Finding Having considered all the evidence, including the authorities relied upon, I find that the CPSU did have a valid reason for the termination of Ms Medcalf's employment. Notwithstanding the existence of a valid reason [indeed, possibly more than one], I also find that there have been breaches of procedural fairness, which I consider to be serious rather than technical in nature. Those breaches are:
I therefore find that the termination of Ms Medcalf was unfair. Remedy The evidence of Ms Medcalf was that she felt a working relationship could be re-established. The view of Ms Strugnell was diametrically opposed to this position. My own view is that there would be no prospect of recreating a workable relationship. In fact I would go as far as to say that this case represents the most profound breakdown of an employment relationship that I have yet encountered. I have no hesitation in concluding that reinstatement is impracticable. On the question of appropriate compensation, there are a number of considerations, none of which are scientifically based. On the basis of the evidence, I consider it unlikely that, but for the termination, Ms Medcalf's future employment with the CPSU would have been long term. A union is by definition a political animal and the CPSU is no exception. In this case we have two intelligent, articulate officers with quite different views on how things should be done. Furthermore they were political opponents in that they both stood for the same office. In everyday parlance, the organisation was not big enough to accommodate them both and something would inevitably have had to give. I consider that Ms Medcalf was not blameless in her ultimate dismissal. At the same time I recognise that the working environment at the time would have been particularly difficult. Ms Medcalf is well qualified and she has made serious efforts to mitigate her loss. She had not been successful as at the last sitting day. The impact of the relatively high profile nature of the termination on her future employment prospects is problematic. In all the circumstances I consider compensation equivalent to 12 weeks' salary to be appropriate. I am also aware that Ms Medcalf may be seriously disadvantaged in terms of superannuation. If this can be relieved without additional cost to the CPSU, then I recommend that this occur. It does not however form part of my order. ORDER Pursuant to Section 31{1B] of the Act, I hereby order that The Community and Public Sector Union (State Public Services Federation Tasmania) pay to Ms Carole Medcalf of 40 Wills Road, Abels Bay, Tasmania 7112 an amount equivalent to 12 weeks of the salary applicable at the time of termination, such payment to be made within 21 days of the date of this decision.
Tim Abey Appearances: Date and Place of Hearing: 1 Exhibit R1 |