C2002/1081, Transcript of Proceedings [2002] AIRCTrans 892 (20 March 2002)

AUSCRIPT PTY LTD
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Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N VT02835
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

1.02 PM, TUESDAY, 5 MARCH 2002

Continued from 22.2.02

PN173

THE DEPUTY PRESIDENT: Is there any change at all to the appearances?

PN174

MR HARTIGAN: No, your Honour.

PN175

MR ERMER: No, your Honour.

PN176

THE DEPUTY PRESIDENT: Thank you. Well, this matter was at least in the first instance set down for report back, so Mr Hartigan perhaps you could.

PN177

MR HARTIGAN: Thank you, your Honour. Thank you for making the time for report back. I trust, your Honour, you received a copy of Mr Ryan's response?

PN178

THE DEPUTY PRESIDENT: Yes, I did.

PN179

MR HARTIGAN: Following provision of that to the lawyers for the Student Union we have had the opportunity this morning of having a meeting, as was discussed in our previous hearing, and we have been able to thrash out an agreement, a copy of which I have to hand up to you and I will just briefly take you through that.

PN180

THE DEPUTY PRESIDENT: I am not sure where we got to with the exhibit list. This I think would be A2.

EXHIBIT #A2 AGREEMENT

PN181

MR HARTIGAN: Perhaps for the record if I may, your Honour, just briefly go through this document. This is a memorandum of understanding that was reached between Mr Ryan and the Student Union today and it states:

PN182

That the Student Union having considered Mr Ryan's responses to the allegations contained in Anderson Legal's letter of 21 February, has determined that there are not grounds for the termination of Mr Ryan's employment.

PN183

Secondly, that the Student Union has determined not to proceed with any disciplinary procedures against Mr Ryan in relation to those allegations. However, the Student Union continues to be concerned in relation to its apprehension of Mr Ryan's inappropriate involvement in the 2001 electoral process. That allegation, of course, is expressly denied by Mr Ryan.

PN184

There is then a statement from both parties that they understand that they must act in accordance with their obligations of trust and confidence as required under the common law, and both parties are committed to developing a productive relationship into the future based on those mutual obligations of trust and confidence. Now, as an outcome of that agreement,in terms of this proceeding what the parties have agreed, and with your leave, that this agreement would then be included on the file with the other documentation that you have received and that then the proceeding would be at an end on that basis.

PN185

THE DEPUTY PRESIDENT: All right. Thank you, Mr Hartigan.

PN186

MR HARTIGAN: Thank you, your Honour.

PN187

THE DEPUTY PRESIDENT: Mr Ermer.

PN188

MR ERMER: Your Honour, that essentially sets out the agreement between the parties, although I did understand that we do believe the applicant would seek to withdraw the proceedings on the basis of that memorandum of understanding now placed on the file. Just for your information as well, I thought I might hand up a copy of our response of 5 March which was provided to the applicant and his lawyers today.

EXHIBIT #R1 RESPONSE DATED 5 MARCH 2002

PN189

MR ERMER: That response is referred to in that memorandum of understanding which the applicant has now tendered to you.

PN190

THE DEPUTY PRESIDENT: Yes, thank you. Thanks, Mr Ermer. Look, for my part I am really quite pleased that this matter has come to the conclusion that it has come to and that the parties have been able to work this out between themselves, because I actually think that that was the appropriate place for it to be done. I have a few comments about it. I think this is the right response in all of the circumstances of the parties. So I think that what the parties have agreed to is actually right from all points of view, based upon the material that was in front of me.

PN191

The allegations essentially boil down to whether there was a breach of fidelity by Mr Ryan in his contract of employment, and on the material that was before me, and I think I can safely say this now and put it on the record, that is something that I didn't find to be substantiated on the basis of any of the documentation or the submissions that were put. What I did find, however, and what I would like to put to the parties, particularly in the context of the last paragraph of the memorandum of understanding, is that there is in my view quite a bit of room for an improvement in communication internally within the senior ranks and - well, within the senior ranks of the MUSU and I would think that the parties would be well advised to have a look at how those processes currently work and what they might do to improve the working of them.

PN192

Whilst I take no issue with the fact that Mr Ryan in his duties may well perform functions in this case with respect to the Tribunal in some form of secretarial type role, or secretariat type role, at the same time he performs normal functions for the executive for which he works and it seems to me that there was in this instance, and may well be in the future, room to make sure that there is appropriate communication to particular individuals of what is going on, because I can see in standing back from all of this how some of the constructions that have been put upon things, whilst as I have already said I don't think that ultimately they were sufficient to sustain the sort of action that was being talked about, I can see why those constructions and how those constructions came about and I think they could have been avoided by appropriate communication.

PN193

Might I also say on that matter that it seems to me that this matter, had it been handled in a less, dare I say it, adversarial and somewhat legalistic matter, and a more practical - in a more practical workplace relations type manner, such that people do something, somebody has some problem with that or some concern about it, they call them to account and say, look, it appears that you have done this, would you like to give me an explanation for what you have done? If that had occurred in this instance you may well have saved yourself a lot of time and I suggest probably a lot of money in the process.

PN194

So having said all of that I commend the parties on reaching the understanding that they have and on that basis I think we can accept that this matter is now at a close and I accordingly adjourn.

PN195

MR HARTIGAN: Thank you, your Honour.

ADJOURNED INDEFINITELY [1.10pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A2 AGREEMENT PN181
EXHIBIT #R1 RESPONSE DATED 5 MARCH 2002 PN189