C2001/5594, Transcript of Proceedings [2003] AIRCTrans 2064 (29 May 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2001/5594

WENDY ZARB

and

DEPARTMENT OF EDUCATION AND COMMUNITY SERVICES

Application under section 170LW of the Act
for settlement of a dispute re grievance
against a workplace manager

CANBERRA

9.55 AM, WEDNESDAY, 14 MAY 2003

Continued from 29.11.02

PN622

THE COMMISSIONER: Good morning.

PN623

MR D. JARVIS: I appear for the respondent, Commissioner.

PN624

THE COMMISSIONER: Thank you, Mr Jarvis. And you are representing again yourself, Ms Zarb?

PN625

MS W. ZARB: Yes.

PN626

THE COMMISSIONER: Yes. Well, this is listed for at least for you to put your case, Ms Zarb and I note that you have presented a comprehensive document thus far, which was exhibit Z1. So, if you wish to now proceed.

PN627

MS ZARB: Okay. I handed your assistant - sorry, on the last page there is a typographical error. First paragraph where it says, "Document 34, page 1170", should just be parenthesis instead of the zero, my apologies.

PN628

THE COMMISSIONER: I am sorry?

PN629

MS ZARB: I requested policy documents, my last document, page number 123, the document 34 page 1170, the zero should be a parenthesis not zero.

PN630

THE COMMISSIONER: All right. Yes, I see. Yes?

PN631

MS ZARB: You asked me to address the issue that the procedure was not followed appropriately. If you go to the last page, the one that I just directed you to, I think that just sums up how I feel about it. I requested policy documents so I could understand how, you know, the guidelines for how my process was to be conducted. If you look back on document Z1, page 114, I was not able to be given any because there were not any.

PN632

THE COMMISSIONER: Now, what am I looking at, Ms Zarb? I have got page 114.

PN633

MS ZARB: Grievances, 4 August 2000, I had a conversation with Brian Liddey from Workforce. I requested the documents to say how the process would - the procedural guidelines. I was not given any documentation because there was not a policy in place.

PN634

THE COMMISSIONER: Yes.

PN635

MS ZARB: So, then, when I asked for some documents again this year, I was given a set which mainly deals with merit protection procedures which I have been told is inapplicable in my case because I am now under the AIRC, not merit protection, despite having been told by the DECS another document quoted that you do not need to look at.

PN636

So, in the light of (a) asking for documents twice, once not being allowed to have them because there was not such a thing, the second time being given ones that were not appropriate in my case because it is merit protection they are talking about, I do not see how the department can say the process was followed properly, how they were empowered to completely dismiss my documented dissatisfaction with the composition and operation of the appeal panel.

PN637

THE COMMISSIONER: What does that mean in the light of one and two?

PN638

MS ZARB: Well, the fact that documents have not been - when I asked for some, they were not available in 2000 so that I could ensure that the process that was going to be followed, I was completely au fait with so that I knew exactly what my rights - I actually asked, down the bottom on page 114, the queries, my queries regarding my role, responsibilities, rights in the matter and the scope of the inquiry were not able to be fully answered due to the lack of formal procedure - procedural document as indicated.

PN639

So then for the department to totally dismiss my dissatisfaction with the composition and the conduct of the panel when they had no document telling me my rights and they have still not presented me with a document saying they had the charter or the right to proceed as they did, to completely dismiss my objections and with the composition and the operation of the panel. They still have not shown me a document giving - outlining about those powers, the powers under which they operated a panel.

PN640

THE COMMISSIONER: Yes.

PN641

MS ZARB: So I do not see how proper process could have been followed. If I was denied information, they still do not have a document to say how they are supposed to conduct it.

PN642

THE COMMISSIONER: Are you talking about the panel review?

PN643

MS ZARB: The appeal panel?

PN644

THE COMMISSIONER: Yes.

PN645

MS ZARB: That is the past process. You told me I had to talk on the process.

PN646

THE COMMISSIONER: Well, I did not say that you had to talk - I said - - -

PN647

MS ZARB: You had to show me how the process was not followed properly.

PN648

THE COMMISSIONER: Right.

PN649

MS ZARB: And that is what I am saying here.

PN650

THE COMMISSIONER: But was this request made prior to the process or after?

PN651

MS ZARB: Prior to. Look at the date, 4th of the 8th 2000.

PN652

THE COMMISSIONER: When was the appeal?

PN653

MS ZARB: After the conducting of the appeal panel, it was after that because I rang up to find out about it.

PN654

THE COMMISSIONER: Right. And what - why do you say that you should have been provided with such documents?

PN655

MS ZARB: Because I requested them so I would know what my rights, my responsibilities and how it would be conducted.

PN656

THE COMMISSIONER: Right. And they said they did not have documents?

PN657

MS ZARB: No.

PN658

THE COMMISSIONER: Right. And they do not have documents what is the problem then?

PN659

MS ZARB: Well, I then asked for the documents.

PN660

THE COMMISSIONER: Yes.

PN661

MS ZARB: Well, (a) if they did not have documents what right did they have to totally dismiss any objections I had to how they composed the panel, how the panel was conducted if they did not have a set down policy of what to do? What gave them the right to do it as they did it without allowing me some input? They have no documentation to show that that is how they were allowed to do it, to disregard anything I said. I was given no rights into how it was can be conducted or composed or even operated.

PN662

THE COMMISSIONER: Why should you be consulted about that?

PN663

MS ZARB: I should be given the documents so that I could find out my role, my responsibilities, my rights in the matter. Any person is allowed to have a document so that they can see what the process is.

PN664

THE COMMISSIONER: Yes, but you were the appellant, were you not?

PN665

MS ZARB: I was putting the case against - - -

PN666

THE COMMISSIONER: Right. Sorry?

PN667

MS ZARB: I was putting the case against.

PN668

THE COMMISSIONER: Yes. Now, did you not acquaint yourself with what the appeal process was all about?

PN669

MS ZARB: That is what I am saying, I tried to, there was no document in place to let me know what the proper steps are.

PN670

THE COMMISSIONER: Right. But you fronted up to this inquiry, or this appeal?

PN671

MS ZARB: Well, I was told if I did not go to the appeal panel I would be called obstructionist, and would be seen not to be co-operating.

PN672

THE COMMISSIONER: Well, you were the appellant, were you not?

PN673

MS ZARB: If appellant means bringing the case against them, correct.

PN674

THE COMMISSIONER: Yes, that is what the appellant means.

PN675

MS ZARB: Yes.

PN676

THE COMMISSIONER: Well, presumably you therefore have to prosecute your case. But you then went to the appeal board.

PN677

MS ZARB: Well, rather than appear obstructionist.

PN678

THE COMMISSIONER: Well - yes, well, you went there. And what was unfair as to what happened to you?

PN679

MS ZARB: I put in noted, okay, document 21 page 54. I objected to one of the members on the panel. I offered suitable replacements, and then if you follow down - sorry, have you found that?

PN680

THE COMMISSIONER: Wait a second. I will just - just hold on a second. I will mark - this document that you gave you before we go on, what is this that you have just handed up?

PN681

MS ZARB: Well, when I first arrived the first time I was told any documents that I was going to use, I was to present two copies to - - -

PN682

THE COMMISSIONER: Yes, I know that. But you presented this and on the front of this it has got, "Document 34, document 35", what does that mean?

PN683

MS ZARB: It continues on from Z1.

PN684

THE COMMISSIONER: I see. That has got document 33 as the last document in there, is that right?

PN685

MS ZARB: Correct.

PN686

THE COMMISSIONER: I see. Right. I see, and those papers continue. That is clear. Okay, well, I will mark that exhibit Z3 because we had another Z2 somewhere else earlier on, so that will be marked exhibit Z3.

EXHIBIT #Z3 DOCUMENT 34, DOCUMENT 35

PN687

THE COMMISSIONER: Now, sorry, let us go back to page 54. Sorry?

PN688

MR JARVIS: Sorry to interrupt, Commissioner. The document that has just been and made an exhibit we do not have a copy of, it has not been served on us.

PN689

THE COMMISSIONER: I see.

PN690

MR JARVIS: So, we are at a disadvantage. Mrs Zarb - - -

PN691

MS ZARB: I handed in two copies.

PN692

MR JARVIS: - - - has not seen fit to give us a copy of it. So, if some use is to be made of it, then it would be helpful if we - - -

PN693

MS ZARB: I have another copy. I thought I only had to give two to you and you would pass one on.

PN694

MR JARVIS: Thank you.

PN695

MS ZARB: Sorry.

PN696

THE COMMISSIONER: And you are right, Mr Jarvis, that the last page of that which has got 123, a quarter of the way down there is a reference to document 34 page 1170 and that was the correction. It should have been page 117 bracket.

PN697

MS ZARB: It is corrected.

PN698

THE COMMISSIONER: It is corrected, is it?

PN699

MS ZARB: Yes.

PN700

THE COMMISSIONER: Okay.

PN701

MR JARVIS: Yes, I think it has.

PN702

THE COMMISSIONER: Yes, okay. Right, sorry, Ms Zarb, we are back to 54, yes.

PN703

MS ZARB: I also asked in the letter that I sent - - -

PN704

THE COMMISSIONER: Wait there, let me read down.

PN705

MS ZARB: Okay.

PN706

THE COMMISSIONER: Right. So, you objected to Mr Neild. Right.

PN707

MS ZARB: Yes. Offered other ones. I then asked for information about what the panel would - you see, there is five questions, do you want me to read them?

PN708

THE COMMISSIONER: No, I can read them.

PN709

MS ZARB: That was not replied to. They just sent me a letter of when to come to the meeting.

PN710

THE COMMISSIONER: Okay. Yes. And you went to the meeting.

PN711

MS ZARB: Yes. And I also in 58B documented my dissatisfaction with the panel, and I asked my - the person who accompanied me what the scope and reference of the panel was. They applied and therefore we objected to some - - -

PN712

THE COMMISSIONER: Yes, well, sorry, you are going too fast.

PN713

MS ZARB: 58B.

PN714

THE COMMISSIONER: Yes, wait there.

PN715

MS ZARB: The panel put some questions to me.

PN716

THE COMMISSIONER: Yes, which is what? Is in 58? 57 and 58?

PN717

MS ZARB: Yes.

PN718

THE COMMISSIONER: Right. They are the questions. Right. And 58B says this, "I twice asked" - yes.

PN719

MS ZARB: Also the last paragraph, when questioned as to the role of the panel, the response was their role was not to reinvestigate the grievance but rather to ensure that the process and steps taken were appropriate and reasonable. In the light of this certain questions posed were definitely not appropriate, and this frame of reference as they agree opened the grievances, and that was acknowledged by the panel after we brought those questions up and we did not answer those ones. That is totally inappropriate. They do not even seem to stick to their own supposed frames of reference.

PN720

THE COMMISSIONER: Their frame of reference being that they are - - -

PN721

MS ZARB: Suitable.

PN722

THE COMMISSIONER: - - - there to make sure that the investigating officer had done it properly.

PN723

MS ZARB: To reinvestigate - - -

PN724

THE COMMISSIONER: Yes, not to deal with the grievance itself.

PN725

MS ZARB: Yes.

PN726

THE COMMISSIONER: But you say the questions indicate that they were sticking their - well, they were inquiring as to the grievance.

PN727

MS ZARB: Some of the questions were inappropriate because they did reopen the grievance. And again when I answered - asked twice why I could not be given these questions beforehand, because they had had over a week's notice, I became very forward in answering questions, or making sure that they knew whether it was available etcetera. I just do not think the whole thing is appropriate, and they definitely did not give me any answers to my questions about what is the proper process, give me the - nearly everyone else when there is a process there is a documented process that you have to stick to.

PN728

I do not think the department has a policy, or they have certainly not given me one, to show me the steps so that I can be happy that the process was adhered to. They appeared to override my objections. They did not give me any answers by telling me, you know, the time frame, the reference and all those things as I have asked for more than once, and yet they go ahead with no documentation that I can see allowing them to do it as they did it.

PN729

THE COMMISSIONER: Yes. And what were the questions that you think were matters of - that reopened the grievance?

PN730

MS ZARB: Well, two for a start. 2, 3, 5 - there is three of them. This is an old story. I objected in the meeting and so we did not deal with those ones and I have not bothered to continue on with that because they have acknowledged it.

PN731

THE COMMISSIONER: And these are the seven questions that they - were the subject of their inquiry, was it?

PN732

MS ZARB: That was- provided some of the basis, yes.

PN733

THE COMMISSIONER: Yes, all right. I have now heard your concerns prior to the meeting, then your - and your concerns at the meeting, the participation of Mr Neild and the failure to reply to you, to those five questions that you point, or five points that you put on 2 August, and then now at 58B you have told me more of your concerns. So, what else?

PN734

MS ZARB: I beg your pardon?

PN735

THE COMMISSIONER: What else do you wish to put to show that the process was unfair to you? I am not saying what else, like I am not satisfied with what you are saying, but is there anything else?

PN736

MS ZARB: No. I am trying to stick only to the process.

PN737

THE COMMISSIONER: Yes.

PN738

MS ZARB: To go back over my other documents, I feel, deals with the, actually, substance of the agreement, not the process. If you were to ask for the process, perhaps at another time I could go to the substance, but that is not appropriate here.

PN739

THE COMMISSIONER: Yes, yes, yes.

PN740

MS ZARB: My summation more or less does it for me, page 123.

PN741

THE COMMISSIONER: Yes. Now, that fits into context. Yes, I will just read that. Yes, thank you. Yes, Mr Jarvis?

PN742

MR JARVIS: Commissioner, if I might just address the points raised today by Ms Zarb. Perhaps before doing that, the respondent's understanding of the general position is that the appellant had this adjournment period to identify ways in which the process for investigating her grievance was not fair and equitable as required by the certified agreement, by clause 4 in schedule D of the certified agreement applying to the ACT Department of Education, and it was by that root that the Commission expressed a tentative period that there may be jurisdiction in the matter pursuant to section 170LW of the Act.

PN743

Now, the matters which Ms Zarb has now identified are really the ones that had been raised earlier to some extent. First, there is the composition of the panel and the gist of that objection was that a panel member, Mr Bob Neild, was likely to be biased because he was a rugby fan. Prior to this adjournment, the respondent looked into that matter and wrote to Ms Zarb giving her the results of our inquiries and I think that letter was tendered on the last occasion.

PN744

Our short answer is that rejected that suggestion that there was any bias by the reason of the - a member of the panel being a rugby fan. Indeed, that same issue had been addressed earlier, in August 2001. Speaking on this issue, Ms Zarb this morning has said that she wrote - she referred to document 54 - - -

PN745

THE COMMISSIONER: Yes.

PN746

MR JARVIS: - - - and she said there had been no reply to that complaint about the composition of the panel. And, in fact, the next page, 55, is the reply in which the department not only asserts that in the absence of any specific allegation, that Mr Neild was an experienced officer and is suitable to be a panel member. It also makes reference to the procedures to be followed in the panel, namely those set out in - - -

PN747

THE COMMISSIONER: Just before you do that, I just want to look at Mr Neild's thing.

PN748

MR JARVIS: Yes. At the end of the first paragraph, Commissioner, there is a reference to Mr Neild, and he in fact was the union representative on the panel.

PN749

THE COMMISSIONER: Did the letter of the - that document at page 54, did it describe the basis of Mr Neild's - - -

PN750

MR JARVIS: No, no. At that stage, the nature of the alleged bias was not clear. It is only in these proceedings that it emerged that it was an allegation about some sort of rugby connection between Mr Neild and the principal of the school, who was the subject of parts of the grievance complaint. As I say, once that - - -

PN751

THE COMMISSIONER: Yes, i see.

PN752

MR JARVIS: - - - became clear to us, we, in the last adjournment period, looked into the matter and wrote to Ms Zarb - - -

PN753

THE COMMISSIONER: Yes, I see.

PN754

MR JARVIS: - - - essentially rejecting that suggestion.

PN755

THE COMMISSIONER: Yes, okay.

PN756

MR JARVIS: But I am drawing your attention to 55 because it does show that the department attempted to address the allegations such as it was known to it in 2001, and also because that letter touches on the next issue which Ms Zarb has raised this morning, namely that she was not given any information to understand the procedures to be followed. I think that is a fair summary of it. That letter does so.

PN757

In the same paragraph, it points out that the matter is to be looked into in accordance with schedule D of the certified agreement. That is the document which sets out the procedure and it was referred to as early as 2001. Ms Zarb has also this morning referred to document number 104 in exhibit Z1.

PN758

THE COMMISSIONER: Just hold on a second, Mr Jarvis. I am just looking - - -

PN759

MR JARVIS: Yes, Commissioner.

PN760

THE COMMISSIONER: - - - for schedule D.

PN761

MR JARVIS: Schedule in the - - -

PN762

THE COMMISSIONER: Yes?

PN763

MR JARVIS: Schedule D in the certified agreement is the one setting out the process for an appeal and sets out the role of the panel and so on.

PN764

MS ZARB: Excuse me, which page did you say?

PN765

MR JARVIS: Schedule D of the certified agreement, which we gave to you on a previous occasion. I am now referring to schedule D in exhibit DECS1 being the certified agreement of the ACT Department of Education and Community Services, Teaching Services Agreement 2000-2003.

PN766

THE COMMISSIONER: They did not respond to one of the questions, "Who will be interviewed, if anybody?"

PN767

MR JARVIS: No, it does not do that, it - in terms of the process it goes on to seek from Ms Zarb her advice as to what time would be convenient for a meeting with the panel rather than indicate that any person was to be interviewed at that stage.

PN768

THE COMMISSIONER: Yes, anyway, go ahead.

PN769

MR JARVIS: Now in terms of the issue, if I can state it generally, of not being informed about the process. Ms Zarb referred this morning to another document being number 114 in her documents, being exhibit Z1, and that document appears to be, Commissioner, a note in which Ms Zarb herself has made a record of a meeting with a person by the name of Brian Liddey, whom I assume is a person from the human resources part of the department, and this appears to be a document which relates to the earlier stage of the grievance process as it is provided for in the certified agreement.

PN770

The process is a two stage one. You can lodge a grievance, make a complaint, an investigation officer is appointed to look into it. If you are still not happy with that outcome then you go to the panel - what we have been called the panel. So at this stage it appears that Ms Zarb went to Mr Liddey to find out what she had to do about making a complaint and it appears from her own note that Mr Liddey gave her that information.

PN771

Now to the best of her ability, in an oral form. He told her that there was no documented guideline but Ms Zarb records that, "Brian was able to give me a run-down of the process he had known from his experiences", so it appears to that - to the extent recorded in this document at least, Ms Zarb was given, even at that early stage, an outline of the process that she would have to follow to make a complaint.

PN772

THE COMMISSIONER: Now you say that the time of this, the 4th of the 8th, was before the first investigating officer?

PN773

MR JARVIS: That is what the document appears to be, yes, Commissioner. Ms Zarb can correct me, but I gather from looking at this document that this would have been at an earlier stage - the first in the two stage process that I have outlined a moment ago, and as I understand it, until this morning Ms Zarb's complaint, at least to our understanding, had been focused on the second stage, the panel stage, about its composition and so on.

PN774

She has now raised an issue which appears to have related to an earlier stage of the process, namely that she was not given any document which set out the process. But it appears that there was no such document apart from the certified agreement, of course, and it also appears that a departmental officer did give her, orally, an outline of the process.

PN775

THE COMMISSIONER: Yes.

PN776

MR JARVIS: The third - - -

PN777

THE COMMISSIONER: I missed - sorry. Can I take you back to schedule D?

PN778

MR JARVIS: Yes, Commissioner.

PN779

THE COMMISSIONER: Do you have that?

PN780

MR JARVIS: Yes, I do.

PN781

THE COMMISSIONER: Sorry:

PN782

1.1. If an officer is not satisfied with the outcome of the decision in regard to the issues contained in clause 13.1 of schedule C -

PN783

I just had a look. That is redeployment and redundancy -

PN784

...or in relation to a grievance, disciplinary or an inefficiency matter as defined in the Public Service Management Act the officer may apply to have a decision reviewed.

PN785

And this then goes on with the appeal. Do I take it that the issue of grievance that is referred to there, is not otherwise dealt with in this agreement?

PN786

MR JARVIS: That is correct. That is correct.

PN787

THE COMMISSIONER: Yes. It is dealt with - - -

PN788

MR JARVIS: In the Public Sector Management Act, yes.

PN789

THE COMMISSIONER: Yes, okay. So therefore the focus of my - going back to the LW - the focus of my interest, at least at this stage, is schedule D and whether that has been carried out. I know you have different - - -

PN790

MR JARVIS: In my submission, that is correct.

PN791

THE COMMISSIONER: Yes.

PN792

MR JARVIS: Because the Commission's jurisdiction does not extent to enforcement of the ACT Public Sector legislation.

PN793

THE COMMISSIONER: Yes, that is right.

PN794

MR JARVIS: At least not in this respect.

PN795

THE COMMISSIONER: Yes. Anyway, sorry, I interrupted you.

PN796

MR JARVIS: But I thought it better to deal with that matter in substance rather than in that way, Commissioner. Now the third issue which Ms Zarb has pointed to this morning was the - was based on document 58B, and again that appears to be a document in which Ms Zarb gives her version of events occurring at the panel which she attended and met the panel.

PN797

She does say that they had given her an outline of the process that they had a limited role in some way, but she then confirmed that in fact they did not carry out their role in that limited way but looked into the actual grievance that she was raising and she illustrated that by referring to a number of questions that they asked and asked her to comment on which indicated to her that they were not adopting any limited role in the way that they were looking into.

PN798

THE COMMISSIONER: Well, that was not her point, was it? I thought her point was they said that they were not to investigate the merits of the complaint. She said, "Well, if that's the case, how come some of the questions seem to be about merit?", and consequently they then did not pursue those questions. So that was the point she made.

PN799

MR JARVIS: Well, Commissioner, I may have misunderstood her but as I understood her to say this morning that they - the questions indicated to her that they were going to look into the matter. Indeed the report of the panel, which is, I think, the next document commencing at page 59 going through I think to page 71, that that report itself also indicates that the panel looked into the actual - - -

PN800

THE COMMISSIONER: I see.

PN801

MR JARVIS: - - - substance of the complaints about the conduct of the principal, Mr Davies, the principal of the school Ms Zarb was in - teaching at.

PN802

THE COMMISSIONER: Okay, so - - -

PN803

MR JARVIS: In brief what we say is that there may have been room for improvement, Commissioner, but the material before the Commission at this stage seems to indicate, in our submission, that the matter was looked into in a fair and equitable way and that the matter - the inquiry into the complaints raised by Ms Zarb was not limited or circumscribed in a way which is inconsistent with the certified agreement.

PN804

THE COMMISSIONER: Do you take issue with the comments on 58B that says:

PN805

When questioned as to the role of panel, the responsibility of its role was not to re-investigate the grievance but rather ensure the process were appropriate and reasonable.

PN806

You do not agree with that, do you?

PN807

MR JARVIS: No. Well, I make the point only that that is Ms Zarb's apparent notes of what took place at the panel. Even assuming that is correct, which I do not concede, it appears that in fact the Tribunal - the panel did not adopt that view of its role but went on to look at the substance of the matter. Now, it is evident from their report that they looked into these things. Ms Zarb disagrees with their conclusion and feels that more should have been done or recommended by that panel but it does appear that they looked into, to the best of their ability, the substance of the matters that she was raising.

PN808

THE COMMISSIONER: Yes. So what you say is that the words in or the position in 58B which is that the panel said, "All right, yes, we're not supposed to - we're only looking at the process, not the merits", that seems to be in contradiction to the body of the report which very much goes to the grievance.

PN809

MR JARVIS: Indeed.

PN810

THE COMMISSIONER: And also the questions, I have just had a look at the questions, which also go really to the grievance.

PN811

MR JARVIS: Yes.

PN812

THE COMMISSIONER: There is no mention there of - I do not think we have remembered the name of the first investigating officer, but there is no mention of her, I think it was a woman, in the questions from Wendy Zarb, in the way the second question - so one seems to indicate that process was not the issue.

PN813

MR JARVIS: Indeed.

PN814

THE COMMISSIONER: Yes.

PN815

MR JARVIS: That is the gist of our contention, Commissioner, that - it may be that the role of the panel was misstated but what they went on to do was in fact to do what they were supposed to do, namely investigate the issues raised in Ms Zarb's complaint.

PN816

THE COMMISSIONER: Yes. Yes, anything further?

PN817

MR JARVIS: No, Commissioner.

PN818

THE COMMISSIONER: So, Mr Jarvis, before I hear from Ms Zarb in response, my view is that given that the issue of the panel is part of the certified agreement that - I think on the last occasion there is a reference to its - I think I dealt with its functions but I think implicit in, if there is any appeal mechanism, that it must be carried out in a fair and equitable manner - do not forget the words are specific there - and therefore the Commission has the power to deal with such equity or fairness and therefore is able to do so and therefore - I take it then that if I find that then I deal with the merit question, that is, the challenge to the fairness of the process which Ms Zarb puts in issue and I have to determine that. Now, you have not conceded that jurisdiction point or you have put as much as you wish to put?

PN819

MR JARVIS: Well, we have put it in this way, that as the proceedings developed the situation has emerged. Initially, as you will recall, Commissioner, we said there was no jurisdiction. We looked at 170LW and we could not see how it could arise. But once it became clear that Ms Zarb was alleging that the circumstances in which the panel conducted itself were not fair and equitable, it then appeared that there could be a question whether there was a dispute over the application of the agreement. And that is the relevant provision in - those are the words in the relevant provision, paragraph (a) in 170LW.

PN820

So this Commission would be entitled to inquire into whether the agreement applied to particular circumstances. The agreement, referring in one of its provisions to the matter having to be heard in a fair and equitable manner. So you would be entitled to say whether those words, fair and equitable, were applicable to the circumstances that were being outlined to you in evidence. So it was in that way that the respondent was prepared to concede that jurisdiction may arise.

PN821

THE COMMISSIONER: Yes. Yes, thank you. Yes, thank you, Mr Jarvis. Is there anything you wish to put in response, Ms Zarb?

PN822

MS ZARB: Going back to the oral outline I was given, 114 by Mr Brian Liddey, just because I got an oral run-down from his memory does not make it an appropriate and official process. I leave it at that. About the panel, page 60, my documents, Z1, the actual panel's report or Commissioner of Public Administration's report, down the bottom of page 60, 1.21.1, the panel said their role was not to re-investigate. I do not quite know what is going on here. After a "was not to" and then to go to. Thank you. And then I just go back to 123, my final page of my document I just gave you today.

PN823

THE COMMISSIONER: Yes. I note that. Mr Jarvis, I see that. I would have thought - that is really no different to how an appeal of this Commission normally operates and that is it needs to look at the merits or the circumstances of the case and then see whether the single member was right or wrong. I know, that is really what it does, is it not?

PN824

MR JARVIS: Yes, yes.

PN825

THE COMMISSIONER: The panel investigates the facts, it then finds that Narelle Hargreaves' conclusions were correct or were not correct. That probably puts it into - it means that the words - it is not there to reinvestigate the grievance, that is deal with the grievance at first issue but to ensure that the process and steps were appropriate. Well, I think there is - Ms Zarb, if you look at 58B says:

PN826

The role was not to investigate the grievance but to ensure that the processes and steps taken were appropriate and reasonable.

PN827

The committee of the appeal describes themselves as - but to consider whether the decision made by the Chief Executive to accept the internal investigating officer's findings and recommendation was reasonable in the circumstances. There is a difference there, I know what - - -

PN828

MR JARVIS: Yes. I am prepared to accept that could have been better worded, that paragraph.

PN829

THE COMMISSIONER: Yes. But nonetheless, no, no, I understand it.

PN830

MR JARVIS: Yes.

PN831

THE COMMISSIONER: Yes, okay. Well, thank you, Mr Jarvis, thank you, Ms Zarb. I will reserve my decision an I will issue it in due course as to whether or not there is jurisdiction and if there is, whether or not the point as to whether the panel dealt with the matter in a fair and equitable way as the certified agreement requires, that issue has been made out. And as I said, the decision will issue in due course. Thank you.

ADJOURNED INDEFINITELY [10.40am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #Z3 DOCUMENT 34, DOCUMENT 35 PN687