C2014/7725, Transcript of Proceedings [2015] FWCTrans 301 (20 May 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051860

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DEPUTY PRESIDENT GOSTENCNIK

C2014/7725

s.739 - Application to deal with a dispute

Miss Rebecca Coughlan v Wyndham City Council

(C2014/7725)

Wyndham City Council Enterprise Agreement No 6, 2011

Melbourne

10.05 AM, TUESDAY, 12 MAY 2015

PN1

THE DEPUTY PRESIDENT: Yes, good morning. Ms Paynter, you're seeking permission to appear for the respondent?

PN2

MS PAYNTER: I am. Thank you, Deputy President.

PN3

THE DEPUTY PRESIDENT: Presumably, you are going to tell me that having regard to the complexity of the matter, the matter will be dealt with more efficiently were I to grant you permission.

PN4

MS PAYNTER: That's right. We've also got Natalie Hansen here who is involved in the matter. So for efficiency and also for the smooth process of the matter, it's our submission that permission should be granted.

PN5

THE DEPUTY PRESIDENT: Yes, Ms Paynter. In the absence of the applicant to put any contrary view, I'm satisfied having regard to the complexity of the matter, particularly because it raises jurisdictional issues about the power of the Commission to deal with the dispute in particular circumstances, that the matter will be dealt with more efficiently were I to grant you permission.

PN6

MS PAYNTER: Thank you.

PN7

THE DEPUTY PRESIDENT: Now, Ms Paynter, you will no doubt be aware throughout Ms Coughlan the applicant has not attended this morning. This is not the first occasion on which the applicant has failed to attend a hearing or a conference.

PN8

MS PAYNTER: Yes.

PN9

THE DEPUTY PRESIDENT: I'm satisfied that notice was given to the applicant of the hearing. The notice was issued on or about 16 February 2015. Prior to that time, the applicant was advised that the matter would be relisted because of her failure to attend on a previous occasion and that if she failed to attend, the matter may be dismissed. She was also advised that if she was not available on the date that the matter would be listed, she was to communicate with my chambers and seek an adjournment.

PN10

MS PAYNTER: Yes.

PN11

THE DEPUTY PRESIDENT: We have not received any application for an adjournment. My associate telephoned the applicant immediately prior to my commencing the proceeding this morning and the telephone message advises that communication should be by text. What I propose to do, Ms Paynter, is this: I propose to allow the respondent to put its case on the question of jurisdiction. I have read the material, but because of the way in which I propose to deal with this matter, I will allow you to elaborate on your submissions.

PN12

MS PAYNTER: Certainly.

PN13

THE DEPUTY PRESIDENT: Because what I propose to do is to provide a copy of today's transcript to the applicant and give the applicant seven days within which to file written submissions.

PN14

MS PAYNTER: Yes.

PN15

THE DEPUTY PRESIDENT: After which I propose to determine the matter. Is that satisfactory, Ms Paynter?

PN16

MS PAYNTER: Thank you, Deputy President. Yes, it is.

PN17

THE DEPUTY PRESIDENT: Before you begin, as I understand the nature of the jurisdictional objection that is pressed, it is pressed on three separate bases; the first is that the various steps set out in the dispute settlement procedure in the agreement have not been followed. They're a conditional precedent to the commencement of proceedings here. The failure to follow those means that the application is not properly made.

PN18

MS PAYNTER: Yes.

PN19

THE DEPUTY PRESIDENT: So that's the first basis. The second basis is that at the time the application was made, Ms Coughlan was not an employee. The dispute settlement procedure in the agreement is only applicable to persons who are covered by the agreement or to whom the agreement applies. At the time she made the application not being an employee, she was not covered or the agreement did not apply to her. So that's the second basis.

PN20

MS PAYNTER: Yes.

PN21

THE DEPUTY PRESIDENT: The third is that the subject matter of the alleged dispute has either been dealt with or has been withdrawn by the applicant.

PN22

MS PAYNTER: That's right, yes.

PN23

THE DEPUTY PRESIDENT: And consequently there's no dispute, even if all the other grounds are rejected. .

PN24

MS PAYNTER: Yes.

PN25

THE DEPUTY PRESIDENT: They're the three general bases.

PN26

MS PAYNTER: That's correct.

PN27

THE DEPUTY PRESIDENT: All right. Now, Ms Paynter, the respondent has filed some submissions which I take it have been served on the applicant?

PN28

MS PAYNTER: No, Deputy President.

PN29

THE DEPUTY PRESIDENT: They haven't.

PN30

MS PAYNTER: We haven't received anything.

PN31

THE DEPUTY PRESIDENT: No, sorry. The respondent - - -

PN32

MS PAYNTER: Our submissions, yes.

PN33

THE DEPUTY PRESIDENT: The respondent filed and served some submissions.

PN34

MS PAYNTER: Sorry, I misunderstood that. Yes.

PN35

THE DEPUTY PRESIDENT: Sorry, perhaps I didn't express myself clearly.

PN36

MS PAYNTER: No, that's fine, Deputy President. We've served those on the applicant.

PN37

THE DEPUTY PRESIDENT: All right. It's not my usual practice to mark submissions, but in the circumstances, I will mark the submissions of the respondent which are dated - actually, they're undated, but in any event they comprise 38 paragraphs.

PN38

MS PAYNTER: They were filed on 12 January, if that assists.

PN39

THE DEPUTY PRESIDENT: Yes, I have the email that attaches them, so I will mark those submissions as exhibit R1.

EXHIBIT #R1 RESPONDENT'S SUBMISSIONS FILED 12/1/2015

PN40

THE DEPUTY PRESIDENT: Now, there were also a number of documents that were attached to those submissions.

PN41

MS PAYNTER: Yes, attachment A and B. Attachment A is a bundle of emails pertaining to the two disputes that were raised by the applicant and the withdrawal of those two disputes, and attachment B - - -

PN42

THE DEPUTY PRESIDENT: Just bear with me.

PN43

MS PAYNTER: Sorry.

PN44

THE DEPUTY PRESIDENT: Attachment A, is that some seven pages?

PN45

MS PAYNTER: It should be paginated at the top, Deputy President.

PN46

THE DEPUTY PRESIDENT: Yes, 15 pages?

PN47

MS PAYNTER: That's right, yes.

PN48

THE DEPUTY PRESIDENT: So that's attachment A. Is that right?

PN49

MS PAYNTER: Yes, that's right. Thank you.

PN50

THE DEPUTY PRESIDENT: All right. I will mark the bundle of documents that have been filed. They are attachment A and they commence with an email from Ms Hansen to Ms Coughlan dated 26 February 2014.

PN51

MS PAYNTER: Yes.

PN52

THE DEPUTY PRESIDENT: So that document and the 15 pages which follow, including the first page, I will mark that as Exhibit R2.

EXHIBIT #R2 BUNDLE OF DOCUMENTS MARKED ATTACHMENT A

PN53

MS PAYNTER: Thank you.

PN54

THE DEPUTY PRESIDENT: What is attachment B?

PN55

MS PAYNTER: Attachment B is a bundle of emails between Friday, 3 October 2014 and Thursday, 13 November 2014.

PN56

THE DEPUTY PRESIDENT: All right. So this is the first email, so I will mark attachment B. So the first email in the bundle is an email from Ms Coughlan to Mr LeClerc and Ms Dixon.

PN57

MS PAYNTER: Yes.

PN58

THE DEPUTY PRESIDENT: And the last email - - -

PN59

MS PAYNTER: Between Ms Hansen - - -

PN60

THE DEPUTY PRESIDENT: Is 13 November from Ms Hansen to Ms Coughlan.

PN61

MS PAYNTER: Yes.

PN62

THE DEPUTY PRESIDENT: Well, I will mark that bundle of material collectively marked attachment B as exhibit R3.

EXHIBIT #R3 BUNDLE OF DOCUMENTS MARKED ATTACHMENT B

PN63

MS PAYNTER: Thank you, Deputy President.

PN64

THE DEPUTY PRESIDENT: All right. Is that the totality of the evidentiary case you wish to lead in relation to the jurisdictional objections?

PN65

MS PAYNTER: It is. Thank you, Deputy President.

PN66

THE DEPUTY PRESIDENT: All right. Well, Ms Paynter, you can make the submissions.

PN67

MS PAYNTER: Thank you. Perhaps I will just say if there's anything you want to hear further on as we proceed, please let me know.

PN68

THE DEPUTY PRESIDENT: You needn't worry about that, Ms Paynter. I will.

PN69

MS PAYNTER: Thank you. The applicant has lodged an application for the Commission to deal with a dispute in accordance with a dispute settlement procedure under section 739 of the Fair Work Act. In the respondent's respectful submission, the Commission doesn't have jurisdiction in relation to the application on three bases, as put by the Deputy President this morning.

PN70

Firstly that the applicant is not an employee of the respondent, and on that basis doesn't have standing to bring the application and further, and these two - this is one point put in the submissions, but really the two points put by the Deputy President this morning that the requirements for bringing a dispute to the Commission under the agreement, which is the Wyndham City Council Enterprise Agreement Number 6 2011 have not been satisfied. So that's the precondition point the Deputy President referred to earlier this morning.

PN71

The reason for that is because any alleged disputes raised by the applicant during her employment were withdrawn by the applicant prior to the Commission's jurisdiction being enlivened. So on those basis, the respondent's seek and order that the dispute application be dismissed.

PN72

THE DEPUTY PRESIDENT: Yes.

PN73

MS PAYNTER: I will touch briefly on the preliminary matters. The Commission's jurisdiction to deal with the dispute only arises if it's expressly authorised to do so in accordance with a provision under the Fair Work Act. This is touched on in our submissions.

PN74

What we say there is that the Wyndham City Council Enterprise Agreement has a five-stage process for brining a dispute to the Commission. That's outlined at paragraph 9 of our submissions. I might come back to that later when we talk about the preconditions required to bring the dispute here.

PN75

I will touch now on the first argument we put before the Commission and that is to say that Ms Coughlan on the basis of the evidence in attachment B to our submissions has brought her employment with Council to an end. So I won't go to those emails, because they're set out in the submissions, but I will touch briefly on the chronology of those documents as it's important considering the timing of the application.

PN76

In summary, Ms Coughlan emailed her direct manager, Ross LeClerc and copied to Alison Dixon on 3 October 2014. In that email she issues Council with what she terms an "ultimatum" that she be placed back on the roster in the following month or she will have treated her employment as being terminated. Ms Coughlan then - - -

PN77

THE DEPUTY PRESIDENT: Ms Paynter, are you able to tell me why Ms Coughlan wasn't on the roster? What was her status as an employee?

PN78

MS PAYNTER: She's a casual employee of Council.

PN79

THE DEPUTY PRESIDENT: When did she commence that employment?

PN80

MS PAYNTER: She commenced employment - please bear with me.

PN81

MS HANSEN: It was at least 12 months.

PN82

MS PAYNTER: Yes, it was around October 2013. Just bear with me and I'll find the document. Sorry, I will correct that. It was 6 May 2013.

PN83

THE DEPUTY PRESIDENT: Yes.

PN84

MS PAYNTER: She worked in Council's theatre. She was based at a cultural centre at Council on a casual basis.

PN85

THE DEPUTY PRESIDENT: What was her actual job?

PN86

MS PAYNTER: An usher, Deputy President.

PN87

THE DEPUTY PRESIDENT: How did she come not be on the roster?

PN88

MS PAYNTER: Rosters are issued monthly, is my understanding. Perhaps I'll go the background. The applicant has issued, prior to this dispute application, two general protections applications to the Commission, one in September - one was filed on 9 September 2014 and the second was on 27 October 2014.

PN89

THE DEPUTY PRESIDENT: Were they both general protections disputes not involving dismissals?

PN90

MS PAYNTER: That's right. The background to those disputes broadly was that the applicant raised a bullying allegation against another employee of Council, based at the cultural centre. These two disputes are similar to the disputes that are mentioned in the dispute application. Ms Coughlan raised those disputes with Council and Council commenced some processes to deal with those disputes under the enterprise agreement.

PN91

At the withdrawal of what's termed "the bullying claim" in our submissions, which was the subject of both the first and the second general protections dispute application, Ms Coughlan requested not to be rostered on with that particular employee that the bullying claim was made against. That particular person works virtually part-time at the cultural centre and on that basis, it became difficult to roster the applicant.

PN92

I think there are some other issues about the applicant's availability. So those are broadly the reasons why the applicant wasn't rostered on in that October/November period.

PN93

THE DEPUTY PRESIDENT: Yes, thank you.

PN94

MS PAYNTER: Coming back then to chronology of the emails leading up to the cessation of the applicant's employment, on 30 October 2014, Ms Coughlan emailed Ms Hansen and asserted that Council had terminated her employment as it handed responded to her ultimatum not to be put back on the roster. Ms Hansen - - -

PN95

THE DEPUTY PRESIDENT: Ultimatum to be put back on the roster.

PN96

MS PAYNTER: Sorry, I - - -

PN97

THE DEPUTY PRESIDENT: Had not responded to the ultimatum to be put back on the roster.

PN98

MS PAYNTER: That's right.

PN99

THE DEPUTY PRESIDENT: Rather than not to be put back on the roster, which presumably the Council agreed with.

PN100

MS PAYNTER: Well, yes. To put it that way, yes. What Ms Hansen responded with was to say - and this is in the emails at attachment B, that Council had not terminated her employment and that, in fact, Ms Coughlan was still employed.

PN101

On 31 October 2014, Ms Coughlan again emailed Ms Hansen and asserted that her employment had been terminated, and she also stated that she did not want to be contacted by her manager again.

PN102

On 11 November, Ms Coughlan again emailed Ms Hansen in respect of an email that her manager, Mr LeClerc had sent her. It was a pretty incongruous email; it was about some training that was going to be conducted for all Council staff rostered at the centre. In that email, she asserted that her employment with Council had been terminated and that she didn't want to be contacted by any of Council's staff in the future, including her manager.

PN103

ON 13 November 2014, Ms Coughlan then contacted Council's IT department, stated that her employment had been terminated and that she did not want to receive any further emails from Council staff. On that same day, Ms Hansen then emailed Ms Coughlan to request that she confirm that she did not want to receive any more emails from Council, that she'd be removed from all listings, as this would mean that Council would be unable to contact her for rostering purposes. Ms Coughlan didn't reply to that email, but she then contacted the following day, 14 November, contacted Council's IT department again and stated that her employment had been terminated, that she did not wish to be contacted by anyone from Council or receive any emails from Council staff in the future, and during that call she informed Council's IT staff that she'd contact the police if Council were to email her or otherwise contact her again.

PN104

Subsequent to that, Council received the dispute application which was filed here with the Commission on 13 November and received by Council on 1 December and the dispute application also states that Ms Coughlan asserts she was dismissed from employment with Council in November 2014.

PN105

So on the basis of that chronology, which is borne out in the documents at attachment B to the submissions and also, I suppose, with a particular emphasis on Ms Coughlan's assertions in those documents and also her requests not to be contacted by Council again, Council had no option but to accept that Ms Coughlan had brought her employment with Council to an end on or around 13 November 2014 at the latest.

PN106

On that basis, we say that Ms Coughlan was not an employee of Council at the time the dispute application was made, because she wasn't a party to the dispute application and had no standing to bring it.

PN107

THE DEPUTY PRESIDENT: You say "party" within clause 54.3 can only mean a person who is covered by the agreement to whom the agreement applies.

PN108

MS PAYNTER: That's right. We outline that in our written submission.

PN109

THE DEPUTY PRESIDENT: I understand.

PN110

MS PAYNTER: I will just note there as well, Deputy President, that there were no live or outstanding disputes capable of being referred to the Commission at the time Ms Coughlan's employment was brought to an end. So I will touch on that in the second half of my submission and I will also just note that in the dispute application under point 4, Ms Coughlan has alleged that she was constructively dismissed from her employment, and again that's not an issue that could be raised or dealt with under clause 54.3 of the Wyndham agreement.

PN111

THE DEPUTY PRESIDENT: Yes. In any event, it's not necessary for me to determine how the employment came to an end. It seems that both parties now regard the employment to have ended. Both parties seem to regard it to have ended some time, you say, no later than the 13th. The application was actually signed by Ms Coughlan on the 6th. So as at that date she regarded her employment has having come to an end.

PN112

MS PAYNTER: Yes, certainly the 13th is the latest date that we say the employment has come to an end.

PN113

THE DEPUTY PRESIDENT: Yes. So as I say, it doesn't seem to me to be necessary for me to determine whether the employment ended at the initiative of the employer or at the initiative of the employee or otherwise.

PN114

MS PAYNTER: Yes.

PN115

THE DEPUTY PRESIDENT: But simply that both parties regard the employment as at an end.

PN116

MS PAYNTER: Yes, Deputy President.

PN117

THE DEPUTY PRESIDENT: It's a bit hard to maintain an employment relationship in this circumstances.

PN118

MS PAYNTER: That's right, yes. Thank you.

PN119

I will just go briefly now to the second and third grounds upon which we base this objection which were outlined by the Deputy President this morning. We say that even if Ms Coughlan did have standing to bring the dispute application at the time it was made, which we say obviously is denied, it's clear that the preconditions to enliven the Commission's jurisdiction have not been satisfied.

PN120

So we've set out a chronology at paragraphs 20 and 21 of the submission and here I'm referring, Deputy President, to the two claims or disputes that Ms Coughlan raised during her employment. I've touched on these briefly already this morning, but those two claims are the bullying claim and the shifts claim that we refer to the in the submission.

PN121

THE DEPUTY PRESIDENT: Yes.

PN122

MS PAYNTER: Both of those claims were handled by Council in accordance with its policies as outlined at clause 54.3 of the agreement. I will touch briefly on the facts that support this submission, but as the outset I'll just note that both these claims have been withdrawn or were withdrawn by Ms Coughlan prior to the progressing to the stage of the process where they can be referred to the Commission.

PN123

Touching briefly on that chronology, and these are the documents set out at attachment A to the submission, on 20 September 2013, Ms Coughlan sent an email to her manager Mr LeClerc and alleged that she'd been bullied by her colleague at a particular event at Council, an awards night. In accordance with stage 1 of the process and stage 1 is outlined at paragraph 9.1 of the submission, that bullying claim was discussed between Ms Coughlan and her direct manager.

PN124

The claim was then progressed to stage 2 of the process, and during October 2013 to February 2014, the bullying claim was referred to and handled by a member of Council's HR team. In accordance with stage 3 of the process, the bullying claim was then referred to Ms Hansen and her then direct manager, Ms Dixon, who are also in Council's HR team during February and March 2014.

PN125

At that time, there were discussions with the applicant about how she wanted to handle that claim; whether by mediation or some other means. And then in stage 4 of the process in March 2014, Ms Dixon tried to arrange that mediation between Ms Coughlan and her colleague. In the documents you'll see on 28 March 2014, Ms Coughlan then informed Ms Dixon that she did not want to progress or pursue the bullying claim any further. So those emails are set out in the submission.

PN126

On 31 March 2014, Ms Coughlan then emailed Mr Wilson who is here today, who is the manager of Economic Development for Council who has management of the area in which Ms Coughlan worked. That was the first time that the rostering or the shifts claim was raised. In accordance with stage 1 of the process outlined in clause 54.3 of the agreement, Mr Wilson sought to meet with Ms Coughlan to discuss that claim, however - and this is set out in attachment A to the submissions as well - Ms Coughlan informed Mr Wilson that she did not want to pursue the shifts claim.

PN127

So in respect of both the bullying claim and the shifts claim, Ms Coughlan declined to progress them through the process to stage 5, which is the time when they could be referred to the Commission under the disputes process. Instead, and I touched on this earlier, she pursued both of those claims in a process outside that outlined in the agreement by bringing them to the Commission as general protections disputes.

PN128

I think that's all really to say on that, other than that the preconditions haven't been met to bring those disputes to the Commission now and that Ms Coughlan shouldn't be allowed to recommence any of those processes without going through the proper steps outlined in the agreement.

PN129

THE DEPUTY PRESIDENT: Yes, I understand that submission.

PN130

MS PAYNTER: Thank you. If there's nothing else I can assist the Commission with, I think that concludes our submissions.

PN131

THE DEPUTY PRESIDENT: All right. Thank you, Ms Paynter. What I propose to do is to have transcript made available, hopefully by tomorrow. I will then send a note to the applicant enclosing the transcript together with a further copy of your submissions and the two other exhibits in these proceedings. I will give the applicant seven days within which to make a response to those submissions. I will indicate that I propose to determine the matter on the basis of the material that will be available to me at the conclusion of those seven days.

PN132

MS PAYNTER: Yes.

PN133

THE DEPUTY PRESIDENT: I will issue a decision as soon as reasonably practicable thereafter.

PN134

MS PAYNTER: Thank you, Deputy President.

PN135

THE DEPUTY PRESIDENT: Thank you for your attendance this morning, Ms Paynter. We are adjourned.

ADJOURNED INDEFINITELY [10.33 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 RESPONDENT'S SUBMISSIONS FILED 12/1/2015............... PN39

EXHIBIT #R2 BUNDLE OF DOCUMENTS MARKED ATTACHMENT A PN52

EXHIBIT #R3 BUNDLE OF DOCUMENTS MARKED ATTACHMENT B PN62