C2002/1081, Transcript of Proceedings [2002] AIRCTrans 776 (8 March 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT02667
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2002/1081

ROBERT RYAN

and

MELBOURNE UNIVERSITY STUDENT
UNION INCORPORATED

Application under section 170LW of the Act
for settlement of dispute re alleged threat
to summarily terminate employment

MELBOURNE

9.03 AM, FRIDAY, 22 FEBRUARY 2002

PN1

MR C. HARTIGAN: I seek leave to appear on behalf of Mr Ryan.

PN2

MR A. ERMER: I seek leave to appear on behalf of the Melbourne University Student Union Incorporated.

PN3

THE DEPUTY PRESIDENT: Is there any objection to leave in either case?

PN4

MR ERMER: We don't have an objection.

PN5

THE DEPUTY PRESIDENT: Leave is granted. Sorry, just before you start, Mr Hartigan, I have got some time pressures this morning because I have got another matter at 10.30, so to the extent that this matter may be able to be assisted by us moving into conference, I would rather do that sooner than later.

PN6

MR HARTIGAN: Yes.

PN7

THE DEPUTY PRESIDENT: So if we can just - but I just sort of say that at the outset so we can report.

PN8

MR HARTIGAN: Yes, thank you, your Honour. Yes, I did note that you do have a time limitation. It might assist if I just give you a brief outline of background - - -

PN9

THE DEPUTY PRESIDENT: Yes.

PN10

MR HARTIGAN: - - - and then it may well be useful to move into conference. I have a folder of documents here that may well assist - that I will hand up sir, that I will be referring to a number of agreements and matters of correspondence.

PN11

THE DEPUTY PRESIDENT: Presumably there is copies of that for the other parties?

PN12

MR HARTIGAN: I have already provided a copy to the other side.

EXHIBIT #A1 FOLDER OF DOCUMENTS

PN13

MR HARTIGAN: I will just take you briefly through the folder. We have a copy of the application. There are orders which I will come to which are not in the folder at the moment. There is a copy of my client's contract of employment and then the applicable certified agreement, which I understand you are familiar with, having certified it a few weeks ago.

PN14

THE DEPUTY PRESIDENT: Yes.

PN15

MR HARTIGAN: There is then a series of bits of correspondence from the union to my client, the first dated 11 February, which has attached to it 40 questions and copies of certain file notes dating back to last year, and an e-mail. There is then correspondence in relation to that matter. You will find under tab 9 an extensive response to those questions from ourselves and further correspondence. You will then find under tab 13 a copy of the constitution of the Student Union. It sets out the respective authority of various organs of the union, and then the manual of procedures at the end.

PN16

At the very back is one of the underlying awards which is nominated in the certified agreement as one of the underpinning awards, and it is the relevant award applicable to Mr Ryan as a managerial employee of the student union. This dispute arises about the application or in what we would say is the non-application of the disputes procedure by the Student Union to Mr Ryan. Mr Ryan is currently the General Manager of the Student Union, and in that role he has the chief day to day operational responsibility for the staff of the union.

PN17

The union is obviously the union situated at Melbourne University. It has 100 permanent employees and 200 casual employees who are caterers, cleaners, provide various functions. Mr Ryan has worked for the Student Union in various managerial capacities for eight - more than eight years, and in senior managerial positions. In April last year he became the Acting General Manager of the union following the resignation of the previous General Manager. On 21 December last year he then was appointed as General Manager under the contract of employment that you have in the folder.

PN18

Now, as you are probably aware from the certified agreement, the terms of the certified agreement, I might just briefly take you to that, which is under tab 5, tab 4, sorry. And if you turn to clause 5, application of the agreement, it states:

PN19

This agreement shall apply to all employees of the Melbourne University Student Union -

PN20

of whom my client is one, and secondly -

PN21

The terms and conditions of this agreement shall be a condition of employment for all existing and new employees.

PN22

If you follow that back into the contract of employment you will see that that is confirmed in the contract of employment. There is an express incorporation of the terms of the certified agreement into that, and we can see that under tab 3 at clause 2.4 on the second page where it says: Conditions of employment:

PN23

Terms and conditions contained in the certified agreement shall be deemed to be terms of the contract with the exceptions of the following -

PN24

and relevantly for this dispute, if you then turn to clause 4, duration of the contract, it states:

PN25

This agreement shall commence on the date agreed, 21 December 2001 and the employer's employment pursuant to this shall continue ...(reads)... the terms of the certified agreement or is extended.

PN26

And then you go to 4.3, and it says:

PN27

The employee's employment pursuant to this agreement may be terminated by the employer as indicated in clause 16 of the Melbourne University Student University Enterprise Agreement.

PN28

So we are four square within the bounds of the certified agreement. We then look at the certified agreement and relevantly here clause 16, the termination provision. And that states:

PN29

16.1. Termination by Melbourne University Student Union may only be effected pursuant to the disciplinary or redundancy procedures of this agreement.

PN30

And we then come back to 15, the clause before, which is the disciplinary procedure, and it sets out the steps to be taken if an issue of concern arises, and says in 15.1:

PN31

Disciplinary action will be taken when a supervisor perceives an employee is inefficient in the performance of his or her duties, negligent ...(reads)... misconduct or serious misconduct.

PN32

And that is an important point, that this clause does deal with serious misconduct, or allegations of it, and there is then a definition of serious misconduct, and you can see there at 15.2.3, gives as examples of serious misconduct theft, fraud, assault and serious harassment, quite indisputable grounds. Now, the dispute here is that the student union through its current executive, and you need to understand that the executive and the council of the union is replaced each year.

PN33

There is an election around August/September which elects a new one. Some persons can be elected in one year and then re-elected in another position or in the same position in the following year, but there is a cycle every year. Now, what happens is that the constitution of the union sets down a process dealing with a body called the Electoral Tribunal, and that tribunal is invested with responsibility to deal with the disputes arising out of an election.

PN34

So, for example, you have got a current council, an executive made up of students elected from the student body. There is then a separately-appointed returning officer, and sitting over the top of this process in the way the Australian Electoral Commission does is this body called the Electoral Tribunal. It is appointed through a process set out in the constitution where the person who comes first in an election gets to appoint one, the person who comes second gets to appoint the second and then those people appoint a third.

PN35

Now, in the relevant period, last year and now, the three people occupying that, and they have to be solicitors or persons admitted as barristers and solicitors in Victoria, the chairperson is Susan Zeitz, who is a former head of the Employee Relations Commission of Victoria, and a former partner of Blake Dawson and Waldron, and an eminent employment lawyer. Another eminent employment lawyer, Tony Macken, who has his own firm in the city, and the third person is a barrister, Craig Dowling, who practises in employment law particularly.

PN36

Now, this body rather than any, the council or the executive of the union, determines what happens. If there is a dispute about - if someone challenges the outcome of an election that body determines it after - - -

PN37

THE DEPUTY PRESIDENT: So this is a Court of Disputed Return, in effect?

PN38

MR HARTIGAN: That is right. Now, if we have to go into this, and there is - as you can probably guess from now there is a fair bit of complexity in this dispute - the constitution of the union, although it sets out in regulation page after page if what happens if there is a dispute and the power of the Tribunal, nowhere does it say appoint any secretariat or any means by which the Tribunal can undertake the functions that it does, and there is no money or persons appointed to the Tribunal to undertake that task. So, it says you will take submissions and you will consider them and x, y and z, but there are no associates or persons appointed to it.

PN39

So, the constitution and the regulations on that point are silent. Now, it has been the custom and practice for many years, well prior to my client occupying the role of acting general manager last year and general manager this year, is that the office of the general manager of the union took on this role of ex officio secretariat to the Tribunal, so if there had to be communication with the Tribunal, if there had to be a collection point for submissions and then conveyed to the Tribunal for them for consideration it was done through the office managing what is a $12 million budget organisation. That is where the resources were.

PN40

But the constitution doesn't spell out in any formal way, it doesn't say that will happen, but that had, you will see, been the custom and practice. What happened last year is that the election process became a very contentious one, and in - the start of it appears to have been that the body that was occupying the role of the returning officer was a company in this case, and the company's name was GTS Elections. So, this company performed this role of doing the nuts and bolts of the election, and it appeared that there were problems arose about how that company was performing the role.

PN41

One person who was the actual nominated returning officer, called Dan Feldman, after a period of these upsets about the processes, contacted the Electoral Tribunal, and I am instructed what the evidence would suggest is that he said, due to illness he had to resign. This happened around the middle of August. Now, the problem with that is that the closing of nominations was on 24 August. So, in a very short time frame, effectively a week, the Electoral Tribunal had to get a new returning officer to supervise the final acceptance of nominations for the election for that year.

PN42

THE DEPUTY PRESIDENT: So this Mr Feldman was GTS, was he, in its entirety?

PN43

MR HARTIGAN: Well, it appears that there were other parties in GTS and other persons involved, and a dispute arose when Mr Feldman said due to illness he couldn't continue. As I understand it there is now a dispute between GTS and the union about whether they resigned, whether they were terminated, and what contractual rights might flow from that. So, when Ms Zeitz as Chairperson of the Electoral Tribunal, who is the only body that can supervise a returning officer, discovered that this person had resigned she then instructed my client as the ex officio secretariat or associate to contact the GTS people and try and clarify the situation.

PN44

A file note was made of the discussions between my client and a woman, Ms Sifikis, of GTS, and it was kept on the file. Four days later following this there was an executive meeting which the sole agenda item of that executive meeting was the returning officer issue. In the meantime, the Electoral Tribunal had appointed a new returning officer who was a former officer of the Australian Electoral Commission, Mr Ron Ritchie. The nomination dates arrived, and it is my instruction Mr Ritchie advised the Tribunal that because of the inadequacies of the process and the problems of the returning officer they should postpone the election, and that is what the Tribunal did.

PN45

On 24 August which was the final day of nominations, my client met with the president, general secretary and two other members of the executive and there was a wide-ranging discussion about this dispute with the returning officer. As soon as the nominations closed and the decision of the Tribunal to adjourn the election was made publicly known, which was not a decision of my client, obviously, an injunction was sought by some students requiring the election to proceed and to effectively overturn the decision of the Tribunal, and that injunction ultimately was upheld.

PN46

So, what it meant was although the Tribunal had told the student body that they were going to adjourn it, the Magistrates Court said, no, you must proceed, and the practical effect was that very many of the student groups who would ordinarily nominate didn't nominate, and they didn't nominate, an election was held, a few student groups and independents stood for election, were elected, but the broad range of groups like the Liberal students group, foreign student groups, college student groups, and other groups and the left student group didn't nominate, weren't there, got elected.

PN47

THE DEPUTY PRESIDENT: Sorry, why was that, Mr Hartigan?

PN48

MR HARTIGAN: Because they became aware the Tribunal had indicated that they were going to adjourn the election.

PN49

THE DEPUTY PRESIDENT: Yes, I understand that.

PN50

MR HARTIGAN: So because there was an adjournment they said, well, they had left their nominations till the last moment, they find out the Tribunal is not going to carry the election, so they don't nominate. The date passes.

PN51

THE DEPUTY PRESIDENT: I see.

PN52

MR HARTIGAN: And they are too late. The election proceeds, this smaller group of people nominate than would be normal and they are elected, and it is from that smaller group that the current executive are elected. Because of this confusion around the election a number of student group, I think there are four, lodged appeals against the outcome of the election, and once again my client as the ex officio, you know, paper shuffler for the Tribunal, has the role of conveying those to the Tribunal, Ms Zeitz, then liaises with the other Tribunal members.

PN53

Now, out of this set of circumstances this year the new executive came into office 1 January. It included as president Mr Darren Ray who is here now, and who last year was also a member of the executive. Mr Ray, as I understood it, took charge of the general manager's files dealing with all these circumstances that took place through August right through to December, and after about a week he came to my client with three pieces of paper, a couple of handwritten notes and a paper copy of an e-mail that he had extracted from this two arch-folders of documents.

PN54

He said, well, I have got concerns about these documents. My client says, well, what are the concerns, and he says, well, executive will tell you that subsequently, because my client was going on leave. My client goes on leave for a couple of weeks. He then on 7 February, so we first meeting 10 January, second meeting on 7 February there is an informal meeting between my client and Mr Ray, the president, and Mr Marchenko, who is also here today who at that - who is another - who is the acting general secretary of the union for this year, and there are some handwritten minutes of that meeting that both of these gentlemen signed to confirm that they agreed with.

PN55

That said that that meeting wasn't a formal meeting of executive. It said that they confirm that Mr Ray said he had concerns about these documents, but that he wouldn't say what the concerns were, and they say that executive will take up the matter later. So, this is 7 February. 11 February my client then receives a document, which is at tab 5, which attached - just briefly there it says in the cover letter from Mr Marchenko:

PN56

I have been directed to present you with the following questions. These questions are based on three documents.

[9.26am]

PN57

And they are three documents extracted from the file:

PN58

The executive has directed you to provide a written response to these questions which shall be presented to me by Monday 18 February, shall allow you to provide further clarification of your written response at the next meeting which will be Tuesday 19 February.

PN59

And he says:

PN60

I reiterate the executive's commitment to a fair and equitable process.

PN61

There is then 40 questions set out about these documents, the essence of which seem to suggest that in my client operating in this role - operating in his role and dealing with the Tribunal, communicating with the Tribunal, communicating with GTS at the request of the Tribunal was somehow behaving improperly. Now, what this does not do, this document, and where the primary objection comes from in relation to this is this is an interrogation but it does not spell out the grounds of complaint in relation to my client's conduct.

PN62

As we all know, in any fair process, if you want to say to someone, I've got a problem with your conduct, you say first of all, I have a problem because I believe you did X, Y and Z. There is nothing in this document that says that. So my client instructed me to respond to that, and that is the letter - - -

PN63

THE DEPUTY PRESIDENT: Sorry, Mr Hartigan. And no allegations were forthcoming in either the meeting of 10 January or 7 February, in terms of specifics?

PN64

MR HARTIGAN: No. They said - what was said was, oh well, we have got concerns, but they were not enunciated in any way, nothing in writing, nothing said. In my letter of 14 February I write back to Mr Marchenko and say, in paragraph 5 - - -

PN65

THE DEPUTY PRESIDENT: And this is under tab?

PN66

MR HARTIGAN: Tab 6. Says at paragraph 5:

PN67

Your letter does not identify on what basis you ask these questions. As you should be aware ...(reads)... Melbourne University Union Incorporated Enterprise Agreement 2001.

PN68

So then, just going down, a complaint that he has been required to answer 40 questions without knowing why or what basis is clearly oppressive. I then say, two paragraphs down:

PN69

If it is truly the case the executive is committed to a fair and equitable process when dealing with all staffing matters ...(reads)... and why you require him to answer the questions.

PN70

That was responded to the next day by Mr Marchenko in a letter dated 15 February. In the first dot points, he claims, incorrectly, that the documents had been the subject of several discussions and communications between representatives of the executive. Well, there had been two informal talks. They had not particularised any concerns at that time. But they start saying here, at the end of the first paragraph, they say:

PN71

Your client will be well aware the issues raised by the attachments concerning his conduct are a matter of grave concern to the executive.

PN72

They then say again they are committed to a fair and equitable process, and they say they require the answers. And then you can come along to executive on 19 February. But then the third dot point was the compelling part of this letter. They say:

PN73

Having considered both your client's written and oral representations, the MUSU will deliberate on his conduct ...(reads)... purposes of determining whether summary dismissal is warranted.

PN74

So we have here on 15 February, they have known about these from at least 10 January, they are now saying, oh, we have in mind a view about your client's conduct that it may well warrant summary dismissal, but we will not tell you what conduct it is we allege. That is the first point. The second point, what they want to do is, to justify their avoidance of the certified agreement, they want to try and rely on clause 15.8 of the certified agreement. 15.8 says with regard - and you will recall that this process deals - the disciplinary process expressly deals with serious misconduct, but it says here in 15.8, summary dismissal:

PN75

Nothing in the forgoing sections will limit the right of the MUSU to dismiss an employee whose misconduct is so grave as to warrant summary dismissal.

PN76

So they want to say, we do not have to follow the procedures because we have got a view that your client's conduct is so grave that all of this that we have just agreed to a month ago, we do not have to follow. We do not have to follow it. We do not have to spell out what conduct is alleged. This of course - and this is someone who has worked for the union for eight years, holds the most senior position, and is held in high regard throughout the university, and has a family, has small children.

PN77

So they are saying come Tuesday we might make a decision to summarily terminate you and we are not going to tell you why. So we write back in the following letters, and provide detailed responses to these questions, but complain again equity, you know, employment law, justice, all require the Act. If you go to 170CE, and you go to the obligations to provide a valid reason, given an opportunity to respond, all of that requires you to put down conduct that you allege and allow a person a reasonable opportunity to respond.

PN78

They say, we do not have to do that, because we have got a view it is so grave, but we do not tell you what the conduct is that is complained of. So we had no out in the end but to bring the matter here. Our problem is that they have not followed the disciplinary process.

PN79

THE DEPUTY PRESIDENT: Well, sorry, just in fairness, Mr Hartigan, just on my reading and your submissions today, it appears to be saying to me that there may be an issue here which is so grave as to warrant summary dismissal, in which case there would be no need for a process of warnings as laid out in the early sections of clause 15. I take your point that it appears on the face of it, to me at least at this stage, that there does not appear to be anything that says what those allegations or what that misconduct might be.

PN80

MR HARTIGAN: Yes.

PN81

THE DEPUTY PRESIDENT: But in fairness it seems to me to be simply saying at this stage, well, you directed us to a process. It may be that that process is not relevant because the conduct may be conduct so grave as to warrant summary dismissal, and if that is the case there is a provision in clause 15 relating to summary dismissal and rendering the previous sections of that clause null and void in the circumstance.

PN82

MR HARTIGAN: Well, I think that is a very important point, your Honour, and that is the key to this. I think in employment law, as you are aware, there are those circumstances which are sort of - when you are confronted with them, are just beyond debate, beyond dispute. And when an employer is confronted with them, they may well seek advice but they have no other choice than to immediately terminate the person, without going through - and you can think an employer is confronted with a major theft of money, when the person involved is a person responsible for administering money you might say from a school context where there is compelling proof that a teacher has had an improper sexual relationship with a student, there would be a heavy onus to investigate that, but if the evidence is there, not the mere allegation but the evidence is there, then some extensive process obviously would be obviated because of the heinous nature of the conduct.

PN83

What we have here though is that back on 10 January they have got these three pieces of paper. So they have this now for six weeks or so. If they were of the view that that evidenced certain conduct, and they clearly had in mind through this process particular conduct that they considered so grave, surely they could write it down and put it in a letter, but they did not do so. I attended this meeting of 19 February and the students, including Mr Ray, want to continue the interrogation. And I said, look, if you have concerns you clearly have this mind, set out in writing what the concerns are so my client can respond.

PN84

Patently, if they have known from 10 January about this piece of paper, on their face they cannot evidence - and we deny they evidence anything - but they do not evidence conduct so grave of the type I have talked about before, as to say, well, come 11 January you have got to go.

PN85

THE DEPUTY PRESIDENT: So what do the three - I mean, I am in the dark at the moment as to the three documents, so what do they say?

PN86

MR HARTIGAN: Okay. If we can turn to tab 5, at the back of the 40 questions are three documents. One is an e-mail to Ms Zeitz from my client. The second one are some notes on a piece of paper and it is probably describing them too highly to describe them as some sort of file note. And the third one appears to be the record of - which is a one-page document headed Maria Sagis GTS, is a record of a conversation with a representative of the returning officer who, as you recall, in this story about that time ceased to be returning officer.

PN87

So if you come back to - well, if we go through - we start from the end, the Maria Sagis telephone call; what my client says and what the executive appears to now concede is that the Tribunal asked my client - because the Tribunal - I do not think they are paid to do this, they are all practising law, they are honorary members - they asked my client to contact Maria Sagis and this, you will recall, is following Dan Feldman resigning. And what my client says is that Ms Zeitz said, look, give them the opportunity to fall on their sword to the extent that they have not already resigned because the whole thing has been a shemozzle, and at Ms Zeitz's request, who was the authorised person, has a conversation, and this records the conversation. So in dot point 3 it said:

PN88

I indicated that the Tribunal had not met but Susan had asked that GTS would fall on their sword. I put that to Maria and she emphatically stated they could continue the election.

PN89

Even though Dan Feldman has resigned, they say, well, the rest of us can keep it going:

PN90

I indicated the Tribunal was meeting over the weekend and it was very likely that termination was going to happen but I could not say categorically. Left message for Susan Zeitz.

PN91

Now, subsequently this company commenced legal proceedings against the union claiming breach of contract. These things happen. There is a dispute. My client had this telephone call because Ms Zeitz asked him to do it. Ms Zeitz was the president of the Electoral Tribunal. My client acted totally properly. What you will see when we come to it is when there was the imminent appearance here in the Commission, the student union's legal executives yesterday, for the first time, now set out what they say are the conduct that they complain of.

PN92

And in relation to this - so for the first time yesterday, some six or seven weeks into the process, they have now set out the grounds of complaint. We say about this, there is absolutely nothing in there improper. My client is responsible for managing relationships between the student union and service providers. He has day to day operational control. He was put in a position that other general managers were put in of providing ex officio secretarial support to the Tribunal.

PN93

The Tribunal under the constitution has control, and he does what he is asked to do; end of story. There is nothing in that document, there is no sustainable allegation of any impropriety arising from that document. We can see now, latterly, what the alleged complaint is in relation to that. And that is at tab 11. There is a letter from Andersen Legal, and if you turn relevantly to this document, to where the letter, it is the third page of the letter, and it says attachment 3, and they say:

PN94

Your client's response to executive dated 18 February which was under cover of our letter, attempts to give background to attachment 3. In effect, your client insists that Susan Zeitz of the Electoral Tribunal requested that he asked GTS to resign.

PN95

Next line, very important:

PN96

Notwithstanding that this may be the case -

PN97

so they concede that my client was acting at the instruction of the president. They say:

PN98

Our client is - - -

PN99

THE DEPUTY PRESIDENT: Well, I am not sure that that is a concession, as you put it, but it may be.

PN100

MR HARTIGAN: All right, it may be:

PN101

Our client is most concerned that your client's actions in doing so exposed MUSU to risk and placed it in a very serious legal predicament.

PN102

Well, we just say that is, you know, a nonsense. If the Tribunal invested with the authority to determine who is a returning officer instructs my client, he does not have any choice:

PN103

As you will be aware, GTS subsequently took legal action against MUSU for breach of contract.

PN104

Yes, these things happen:

PN105

One of GTSs ground for claim was your client's request that they fall on their sword -

PN106

expressly at the instruction of Ms Zeitz -

PN107

before a formal decision to terminate her services had been made. Again, your client's actions extended beyond those necessitated by his office's general manager and into the realm of matters more properly dealt with the Electoral Tribunal. Those same actions reflected very poorly on the union and its consequent position.

PN108

Well, that is a retrospective assessment of judgment used at that time. But nothing in there. You might say, well, look, you might have done something differently, but it is not conduct that is so grave to warrant summary dismissal.

PN109

THE DEPUTY PRESIDENT: Mr Hartigan, I think - I am conscious of the time, and I recognise that you would want to put substantial submission in respect of that as well as the other two documents most probably. What I would really like to do at this stage if I could is get an overview of what those two documents are about, because they are the substance of the allegations against your client.

PN110

MR HARTIGAN: The three documents, yes.

PN111

THE DEPUTY PRESIDENT: Yes, the three documents.

PN112

MR HARTIGAN: Yes.

PN113

THE DEPUTY PRESIDENT: If I can do that in sort of summary form, then we know where we stand.

PN114

MR HARTIGAN: Yes, certainly.

PN115

THE DEPUTY PRESIDENT: I would like to at least get the opportunity to hear from Mr Ermer, because I do have to adjourn prior to 10.30.

PN116

MR HARTIGAN: Yes. The other two documents, the first one is, well, the one attached at the top is a document dated 6 November, and what my client has responded is an e-mail, my client in his - if you look at the back of the 11 February document there is a copy of these, tab 5.

PN117

THE DEPUTY PRESIDENT: Tab 5, right.

PN118

MR HARTIGAN: There is a copy of these documents. This one is an e-mail sent to Susan Zeitz. At this stage the Electoral Tribunal is considering appeals to the election. My client has had a discussion prior to this with Ms Zeitz, and Ms Zeitz had indicated that the Tribunal may not hand down its decision on the appeal until December or later. My client has expressed his concern about that, because depending on who is elected, for example, students have to nominate where they are going to study in the following year, have to enrol.

PN119

They don't know whether there is going to be another election at this time, because the Tribunal hasn't made its decision. They might have to stand again, and so on. And there were decision-making processes that were to go on within the union that would be affected. So, there was a high level of anxiety within the organisation. My client says to Ms Zeitz, look, I am concerned, very concerned that if the decision is later than December that will have an effect. I don't want to influence your decision, and he expressly says that there in the third or fourth last, you know, I have got no interest in the decision, what I have an interest in is in the timing of the decision.

PN120

Ms Zeitz says, look, that is a fair point. If you can set those out in an e-mail to me and I will take them up with the other Tribunal members. And as I understand consequently the Tribunal then did concentrate on having a quick decision. The decision was that the election would stand, they didn't overturn it. Now, the allegation - well, you know, we can go into what the allegation is, or my friend can do that. The next page, and it is not clear from this fax, the next page is a page that appears to be dated around 31 August, so going back to the period where this injunction application is going on, and you can't see it from this copy, but it is headed: Toby B.

PN121

Toby Borgeest is a solicitor at Slater and Gordon. At that time Slater and Gordon were acting on behalf of the Student Union, they were their legal advisers, so part of this page would appear to be some notes of a conversation with the union's legal advisers and there are some dot points made. What has happened is this conversation takes place within a day of the injunction coming down saying, no, you must go on with the election in the original form.

PN122

My client has a discussion with Mr Borgeest about the outcome of the injunction application, because Slater and Gordon were acting in that injunction application. So, we say it is entirely proper to have - my client had to instruct the solicitors to oppose the injunction application. He has a discussion with them. Nothing further goes from that discussion. We say it is entirely proper; it is within his role. He was talking to the lawyer acting on his behalf. He makes some notes about the discussion.

PN123

I think what is suggested or put against my client is that somehow my client is interfering in the electoral process which seems to be the primary allegation underneath all three documents, but we just say that is a nonsense and deny it. Okay.

PN124

THE DEPUTY PRESIDENT: Okay. Thank you, Mr Hartigan. Mr Ermer.

PN125

MR ERMER: Thank you, your Honour. I am conscious of the time, your Honour, so I will try and be brief.

PN126

THE DEPUTY PRESIDENT: Yes. Just before you do, just on that subject, we I think have got some considerable way to go with this, even in the form of sort of formal submissions, so I would be intending probably around about 20 past 10 to try and work out with the representatives where we go from here to put some sort of direction. Can I just understand first of all what the current circumstance is, Mr Hartigan, with respect to your client?

PN127

MR HARTIGAN: Yes. We provided a 12-page response to these questions. Mr Ermer yesterday has set up for the first time the allegations in a letter. He says in the letter that he then requires an extensive letter from Humes setting out a restatement of - or first time a statement. At the end of it he says:

PN128

We are instructed to allow your client the opportunity to respond to our client's concerns by 5 pm on Monday this week - next week. Our client will then further deliberate on your client's conduct in light of those responses. In the event that such consideration is given that the union is of the view that your client's conduct warrants summary dismissal we expressly reserve the right to summarily terminate your client's employment.

PN129

Now, that is why we are here. We are subject to the axe on Monday and that is a big problem for us. We say you can't have your investigation, then set out your concerns and then say two days later you are going to sack someone. So that is something we might come back to.

PN130

THE DEPUTY PRESIDENT: Yes, okay. Thanks, Mr Hartigan. Sorry, Mr Ermer, I interrupted you.

PN131

MR ERMER: Not a problem, your Honour. Again, I am conscious of the time so what I might do, your Honour, just to assist the Commission is go through those three documents just briefly just to give you an idea of exactly what they are about. We are here today because of the concerns that my client has in relation to those three documents. Again, I will be putting it briefly but the first document is actually referred to as attachment 3 because I will present it in chronological order so it might assist the Commission.

PN132

The first document relates to a discussion that the applicant, Mr Ryan, had with Ms Zeitz of GTS. Essentially the concern there is, and I am being brief about it, but the concern there is that the discussion extends beyond the realms of what the general manager of my client ought be discussing that essentially it exposes our client to liability and ultimately is a serious dereliction of his duties.

PN133

The second document referred to as attachment 2 notes a discussion between Mr Ryan and Mr Toby Borgeest. The concern with that document is, and as my friend perhaps conveniently didn't indicate, is that the applicant wasn't at that time in the process of instructing Mr Borgeest, I expect, in relation to anything. Mr Borgeest had been acting in relation to an appeal in relation to the election process - sorry, he had been acting in relation to an injunction concerning the extension of the election deadlines. That injunction was won.

PN134

Mr Borgeest had essentially finished with that case in the sense that the injunction had been lost. It had been determined then that the election would proceed later on in November and that any sort of appeal would be after the election in November. What the applicant does when he speaks to Mr Borgeest is to essentially ask him how it is that the current, essentially the current executive, a prospective party in that impending appeal process should make submissions to the electoral tribunal. This seriously undermines the mutual obligation of trust and confidence that my client has with the applicant and goes to the heart of his employment and seriously raises concerns about his faithfulness to employer. Again, I am just putting it briefly, your Honour.

[9.56am]

PN135

The third document, which is again labelled attachment 1, relates to a discussion which the applicant has with Ms Zeitz of the Electoral Tribunal. That discussion essentially comes after there is another appeal in relation to the election that had then gone in October/November. That appeal would ultimately essentially look to determining whether or not the Magistrates Court decision was correct.

PN136

The Magistrates Court decision was to injunct and allow the election process to proceed as it normally would. That appeal - the submissions for that appeal had closed, I understand, the day before the applicant spoke with Ms Zeitz. The applicant in his E-mail to Ms Zeitz makes comments in relation to - was talking about time lines, yes, but makes comments in relation to essentially the faction which now sits on the MUSU Executive, the faction which won the election. Ultimately the appeal was of - the outgoing MUSU Executive was denied.

PN137

Essentially, what the applicant does in his E-mail is cast some view of a party in the process, particularly where it says that - I should say that this is at tab 5, attachment 1, in the fifth paragraph down there, including "I hope", is the first paragraph:

PN138

This November is unique, in that a relatively small political group have an unprecedented amount of power in putting budget strategies in place 2002. The impact of this could well put MUSU in a situation which would be increasingly difficult to undo as November proceeds, and is a situation which is becoming more difficult to manage.

PN139

Now, the applicant notes that he is not seeking to influence the Tribunal, but it is my client's grave concern that that was being sought - attempted to be done. So, in a nutshell that is - hopefully I have assisted the Commission into light what the concerns are. Those concerns are reflected in our letter of yesterday to the applicant's solicitors, the 21 February letter. If I might - again, I am conscious of time - but if I might - we are here today, but essentially I would ask the Commission to first consider issues of jurisdiction, as to whether or not we should be here today.

PN140

We have foreshadowed to the applicant's solicitors that this is a case where these proceedings are premature. I would like to, if I could, just note why I believe that is so. Clause 10 of the MUSU certified agreement requires that MUSU employees with a grievance or concern of any sort connected with his or her employment will follow established procedures as set out in he MUSU certified agreement.

PN141

In our view, it is questionable whether Mr Ryan has sought to implement those procedures. We believe that ultimately what has happened is he has sought just to come here with a view to circumventing the process that has been put in place by MUSU, my client.

PN142

THE DEPUTY PRESIDENT: Just on that, Mr Ermer, if I can take you to clause 15.8 and 15.9. What do you say to me, then, in respect of those two provisions, because it would seem to me that the issue of summary dismissal is a real proposition. And it would also seem to me that 15.9 says something about if there is a dispute about the implementation of the clause, being the entirety of the clause 15, which would include 15.8. Would you like to comment on it?

PN143

MR ERMER: Certainly, that is exactly what I was getting to, your Honour. My next point is that the matters raised by Mr Ryan are not the proper subject of a notice under dispute settling procedures in an agreement. The notice purports to be an invoking of clause 10, but in this instance there is actually no dispute in our view, although it might be a technical argument, but no dispute in our view in relation to the application of the agreement. Essentially, my argument there, your Honour, is the agreement is absolutely clear.

PN144

When 4.1 of the applicant's contract is read, it allows for summary dismissal or dismissal otherwise under the certified agreement. That dismissal otherwise under the certified agreement is in fact allowed for under 15.8. This is a case where my client has grave concerns regarding the conduct of the applicant. And under 15.8 it is able to essentially dismiss, for summary dismissal, if it feels those concerns are warranted. Now, what the applicant appears to be asking for, and has asked for, is that if you - or it is suggested that if you are going to do that, then what you do is you dismiss someone. You shoot first, and then you ask questions later.

PN145

What my client is doing is in fact instead of doing that, is seeking to go through the processes that are fair and equitable, instead of just summarily dismissing. It is essentially an investigation process, and certainly, in my view, that investigation process certainly appears to seek to be fair. Now, part of that investigation process has been the letter of 21 February. In my view, also, the questions that were posed make it clear what the concerns are, but, again, for clarity's sake, that has been put in the letter of 21 February.

PN146

So the applicant seems to be asking for reasons. It has been given those, and in fact has been given a number of opportunities to respond.

PN147

THE DEPUTY PRESIDENT: The letter that you have provided to the applicant outlining the allegations, and asking for a response to by, I think, Monday - - -

PN148

MR ERMER: Monday, yes.

PN149

THE DEPUTY PRESIDENT: Monday afternoon, was a reserving rights in respect of summary dismissal, which I am not sure you had to do. They seem to exist.

PN150

MR ERMER: Yes.

PN151

THE DEPUTY PRESIDENT: But am I to understand by that, with effect from Monday afternoon, that the applicant could be out of a job?'

PN152

MR ERMER: Not entirely, your Honour. What is sought to be done, then, is to deliberate in relation to the applicant's responses. Everything will be looked at in the context of the applicant's previous - - -

PN153

THE DEPUTY PRESIDENT: Okay, but what I guess I am getting at, at this point in time, given that the matter has got here, and given that there may well have been concerns that could have brought the prospect of summary dismissal into play, it seems to me there is a process that has to be worked through in any organisation, be it a laid out one, as is the case here, or simply by virtue of the requirements of procedural and substantive fairness in any termination that needs to be worked through.

PN154

Now, I am concerned that that process should be worked through. I am also concerned that if it gets to the stage of a determination on the part of your client, Mr Ermer, that this in fact does warrant termination, it then seems to me that you would then need to overcome 15.9. In which case, the applicant may well say, I dispute that, and then would like to put it in the disputes procedure. That opportunity should exist.

PN155

MR ERMER: I understand that, your Honour, and take your point. And that is why, in fact, should the Commission determine there is jurisdiction, then I certainly have some submissions in relation to that.

PN156

THE DEPUTY PRESIDENT: Yes.

PN157

MR ERMER: What I could say in relation to that, is that essentially in relation to jurisdiction, our client's argument is therefore that they might proceed under 15.8, or they are entitled to proceed under 15.8. But that is not exactly what they have done, in the sense that they have in fact sought to accord procedural fairness - - -

PN158

THE DEPUTY PRESIDENT: No. Look, i appreciate that, Mr Ermer. I guess I am just thinking in terms of the future, and so that we make sure that procedures are followed. I mean, there is a technical argument. I accept that at this point in time jurisdiction may well be an issue. However, in my view, once 15.9 is invoked, then I am not so sure that argument would stand up. Now, at this point in time it would seem that it would be premature to invoke 15.9. There hasn't been a summary dismissal, although there has been suggestion that that may be an appropriate action in the circumstances. So it seems to me there is some ground to be covered between the parties.

PN159

I would not like to see a circumstance whereby there has been a letter served on the applicant to which the applicant is to respond, and entirely on the basis of a written response there is a decision then made for termination. It would seem to me that the purposes of natural justice are not necessarily served by that mechanism alone, although that might be appropriate as at least a first step. But it would seem to me that once there is a response, it seems to me that the parties need to get together again, then, so that people have some opportunity to be able to put the case in support of the submissions that they may have made in writing.

PN160

MR ERMER: Certainly, your Honour, I take that on board. I guess what I would say to that is, there has definitely been some opportunity to respond, and also, as is indicated in the correspondence, to further supplement the applicant's responses, and put essentially his case. That was at the executive meeting on 19 February, on the Tuesday afternoon. I understand your point also, though. I guess what I would stress, though, whilst it is a technical argument, that given 15.8, there is no dispute in relation to the application of the agreement. Our client simply seeks to proceed under that. That is where I would end the jurisdictional argument: except to say that obviously in my view the application itself here today is premature to that effect.

PN161

If I might - I am conscious of time - in terms of the merits of the matter, your Honour, just to clarify. As I submitted earlier, clause 4.1 of the employment contract of the applicant allows for dismissal or otherwise under the MUSU certified agreement. Clause 15.8 allows for summary dismissal. That clause 15.8 offers a wide discretion to the employer. As I put earlier, that allows the employer to shoot first, ask questions later. My client has gone to extensive lengths to ensure that has not been the case here. And if I might, I will just quickly outline - although Mr Hartigan looked to outline these things as well, but I might put it perhaps in a different light - outline what has occurred.

PN162

There were meetings on 10 January and 7 February 2002 between the President of my client, Mr Darren Ray, and Mr Ryan. The provision of a list of questions attaching the three documents, an extensive list of questions, a list of questions which sought to ensure that, and came under the cover of a letter which made it clear, as the Executive directed, that it be a fair and equitable process - the Executive of my client. A meeting of the MUSU Executive, as I have indicated, was held on Tuesday 19 February in the afternoon.

PN163

Correspondence was forwarded yesterday afternoon clearly setting out, if they were not already clear, my client's concerns and apprehension of serious misconduct, serious and wilful misconduct that warrants summary dismissal. In these circumstances, my clients made substantial efforts to detail its concern to Mr Ryan, and giving him an opportunity to respond, both verbally and in writing. It is my submission that even if the disciplinary processes were to be applied, then my client in these circumstances, having done what they have done, would in fact be shown to have met the requirements of clause 15. In fact, clause 15 allows for a disciplinary process to go straight to formal disciplinary procedures, as you would be well aware, your Honour, if the circumstances warrant it.

PN164

This is certainly one of those circumstances. They would have seen to have essentially applied that de facto processes that are outlined there. So again what I say to your Honour, to the Commission, is that the applicant in this case simply just seeks to circumvent those procedures under the cover of an application which suggests there is a dispute in relation to the application of the agreement. I would ask your Honour to bear that in mind, in any order or recommendation or otherwise that you might make. That ends my submission.

PN165

THE DEPUTY PRESIDENT: Thanks, Mr Ermer. Mr Hartigan, I don't, unless you have something of hugely burning importance you want me to hear, I didn't propose to give you an opportunity to respond at this point in time.

PN166

MR HARTIGAN: No, that is fine. That is fine.

PN167

THE DEPUTY PRESIDENT: Because I think there is a process that actually needs to be worked through by the parties to bring it to a point, if it is going to get to a point, for any further submissions or hearings that may have to occur here, and that would include any submissions that the parties might want to make on the issue of jurisdiction of the Commission.

PN168

It seems to me that this circumstance now rests back with the parties to follow a process of procedural fairness, in respect of giving the applicant ample opportunity to answer the allegations that have been put, both in the first instance in writing, as has been requested, and I would suggest secondly by face to face meetings to enable those submissions to be enhanced, elaborated upon, or questioned, or whatever.

PN169

MR HARTIGAN: If we might go into conciliation - - -

PN170

THE DEPUTY PRESIDENT: Yes, I was just going to suggest that. I think in terms of progressing the matter further as far as this Commission is concerned, it might be wise if we just go off the record for a few moments. So we will do that.

SHORT ADJOURNMENT [10.11am]

RESUMED [10.25am]

PN171

THE DEPUTY PRESIDENT: To summarise - if I slip on some of these dates, then the parties can help me out - there will be a response to the allegations in writing from the applicant back to the respondent by close of business on 28 February, which is the Thursday. There will be a meeting held between the respondent and the applicant to address matters raised both in the initial allegations and in the response to those allegations to be conducted no later than close of business on the Monday. I am presuming representatives of both parties would be in attendance at that.

PN172

As I said, that happens by no later than close of business on Monday the 4th. And there will be a listing at 1 pm on Tuesday 5 March back here for purposes of report back. On that basis, I think we can adjourn these proceedings.

ADJOURNED UNTIL TUESDAY, 5 MARCH 2002 [10.27am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 FOLDER OF DOCUMENTS PN13