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C2004/ 1676 , Transcript of Proceedings [2004] AIRCTrans 3652 (14 September 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:(02) 9238-6500 Fax:(02) 9238-6533

TRANSCRIPT OF PROCEEDINGS


O/N 13479

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

C2004/ 1676 

INDEPENDENT EDUCATION UNION OF AUSTRALIA -
NORTHERN TERRITORY BRANCH

and

NYANGATJATJARA COLLEGE LTD

Application under Section 170LW of the Act
for settlement of dispute re alleged failure
by the College to follow the procedures
outlined in subclauses 88.1 and 88.2
of the agreement in regard to disciplinary
action against Jerry Fitzsimmons

SYDNEY

10.13 AM, FRIDAY, 3 SEPTEMBER 2004

THIS HEARING WAS CONDUCTED BY VIDEOCONFERENCE
AND RECORDED IN SYDNEY

PN1

THE COMMISSIONER: I will take appearances, please, commencing with the IEU.

PN2

MR S. HALL: From Darwin, Commissioner, it is Simon Hall for the Northern Territory Branch of the Independent Education Union of Australia; in Alice Springs, to your right of the screen, you have MR JERRY FITZSIMMONS, member of the IEU; and in between, or going across to the other side of the screen, you have MR MIGUEL OCIONES, who is the Central Australian organiser for the Australian Liquor Hospitality and Miscellaneous Workers Union. He is with Mr Fitzsimmons for support.

PN3

THE COMMISSIONER: For support, I see. Okay. Thank you for that, Mr Hall. The matter before the Commission is an application filed pursuant to section 170LW of the Workplace Relations Act. It is a notice under the dispute settling procedure in an agreement. It is filed by the Independent Education Union of Australia concerning the alleged failure by the management of the Nyangatjatjara College to follow due process in regard to disciplinary action against Mr Fitzsimmons. They notify details of the steps followed in the dispute settling procedure to date in subclauses 77.1.1, 1.2 and 1.3.

PN4

Immediately before these proceedings commenced, I received by fax a package of documents from the IEU. I have not had a chance to go through those documents at this time, Mr Hall. They were just simply sent too late for me to be briefed on their content before this hearing commences. But it is your application, you filed the 170LW. What do you have to say about the application at first instance?

PN5

MR HALL: Commissioner, those documents I will be referring to in this short opening to the Commission - so just to explain why I faxed them to you at a later time. Basically, Commissioner, this is a - we're running this case for Mr Jerry Fitzsimmons, who is employed by Nyangatjatjara College and at the Yulara campus as a senior house parent. And he has held that position since July 2002. Previous to his employment at Nyangatjatjara College, Mr Fitzsimmons was employed at the boarding facility at Yulara College, which is an indigenous boarding college in Alice Springs. And previous to that, Mr Fitzsimmons has worked for a long period of time in the area of child protection with the Department of Family and Children's Services in Alice Springs.

PN6

Mr Fitzsimmons was head-hunted for the position of senior house parent at Nyangatjatjara College on the basis of his extensive experience in working with indigenous children and working with indigenous cultural expectations. The position of senior house parent is a demanding role with a high level of responsibility and extreme duty of care. Essentially, Jerry is in charge of the staffing and personnel, and also, ultimately, the safety of those children while they are at that boarding facility.

PN7

The position reports directly to the Principal of the college, and then to the board of management; and the senior house parent is responsible for the day-to-day running of the facility, from administering of duties, supervision of staff, and then to hands-on supervision of the students. So his duties are quite extensive. And again, I would emphasise that they require a high level of duty of care and responsibility.

PN8

When Mr Fitzsimmons began his employment as senior house parent, the college boarding facility was in a developmental phase, and much of the policy and procedure which now occurs in its operation is acknowledged by the college as being the result of Mr Fitzsimmons' work. It has been acknowledged that since Mr Fitzsimmons began employment, the level of property damage and behavioural problems within the boarding facility has dropped considerably, saving the college money and creating a positive learning environment for the students.

PN9

During much of Mr Fitzsimmons' employment, the position of College Principal has been in a state of flux, with a number of people active in the position throughout 2003, and a new, inexperienced principal in the first half of 2004. Consequently, Mr Fitzsimmons has been called upon on many occasions to act in a highly professional manner, with minimal guidance and supervision and possibly at a higher level than is anticipated under normal circumstances. Now, just giving you that sort of idea as to the flavour of Mr Fitzsimmons' employment, Mr Fitzsimmons' seniority, and basically why the allegations that have been made to him are of such a serious nature, and why his suspension on full pay is also of a serious nature to the union and Mr Fitzsimmons.

PN10

Essentially, the events started on Tuesday, 27 April 2004, on or about 4 pm, when the previous principal of the college, Miss Tracey Harbour served Mr Fitzsimmons with a formal notification of investigation into allegations concerning capacity and/or conduct in relation to duty of care, inappropriate behaviour management practices. That is document A - or attachment A, as I have sent it, the - - -

PN11

THE COMMISSIONER: All right. Just hold on a second, Mr Hall. Given that I have not had the opportunity of going through these documents. So there is no - there is no letterhead on this document. Who's the document - it's from Tracey Harbour, the principal of the college?

PN12

MR HALL: Yes, the previous principal of the college.

PN13

THE COMMISSIONER: And that detailed allegations, did you say, of what? Duty of care?

PN14

MR HALL: It says, "Duty of care - inappropriate behaviour management practices."

PN15

THE COMMISSIONER: And this is the first that Mr Fitzsimmons is allegedly aware that there are some difficulties associated with his management; is that correct?

PN16

MR HALL: Well, the events the document itself refers to basically refers to two days previously to that, on 25 April.

PN17

THE COMMISSIONER: Right.

PN18

MR HALL: If the Commission pleases, I will continue on, and it will become clear, the relevance of this document. I am not going to go into the great detail of it at this stage.

PN19

THE COMMISSIONER: Right.

PN20

MR HALL: In this document, Mr Fitzsimmons is alleged to have acted on Sunday, 25 April 2004, in a manner which was inappropriate regarding a group of students in terms of behavioural management. Mr Fitzsimmons was requested to reply to these allegations in writing by Friday, 30 April 2004. It should also be noted that from Tuesday, 27 April 2004, Mr Fitzsimmons was to be suspended without pay. However, this was later amended to suspension with pay on advice from the union.

PN21

THE COMMISSIONER: I'm sorry, what - - -

PN22

MR HALL: As to the - - -

PN23

THE COMMISSIONER: Just a moment, Mr Hall. You are obviously intimately familiar with all of this. I am trying to put the pieces of the jigsaw puzzle together as I go, hearing it for the first time. Are you saying as a consequence of this letter of 27 April, that Mr Fitzsimmons was suspended?

PN24

MR HALL: That's correct.

PN25

THE COMMISSIONER: He was first suspended without pay, but later suspended with pay?

PN26

MR HALL: That's correct, Commissioner.

PN27

THE COMMISSIONER: So that was implemented on the day of the receipt of this letter; is that correct?

PN28

MR HALL: That's correct.

PN29

THE COMMISSIONER: Right.

PN30

MR HALL: 27 April.

PN31

THE COMMISSIONER: Okay.

PN32

MR HALL: As the allegations in this document are very serious, and Mr Fitzsimmons obviously required professional assistance in responding to them, because his failure to do so adequately would not only lead to a loss of employment, but also damaging consequences to Mr Fitzsimmons' career, Mr Fitzsimmons sought the advice of both legal representation and the union. Both Mr Fitzsimmons' legal representative and the union, independently from one another, wrote to the college on 30 April 2004 requesting an extension of time to respond to the allegations made on that day. And again, Commissioner, I have provided those two independent letters - one from Mr Fitzsimmons' legal representation, and also the union - which are attachments B and C.

PN33

THE COMMISSIONER: Well, the one from Mr Stirk, attachment C, is dated 2 September 2004.

PN34

MR HALL: That's correct. That's correct, Commissioner. On the original document which I have received an email version of from Mr Fitzsimmons - Mr Stirk has an automatic date, so whenever you print it, it prints the date on which you print it. I don't think Mr Scollay would contest that the college received that letter on or about 30 April 2004.

PN35

MR SCOLLAY: No, I wouldn't contest that.

PN36

THE COMMISSIONER: Thank you, Mr Scollay. So its proper date, in theory, is 30 April?

PN37

MR HALL: That's correct, Commissioner.

PN38

THE COMMISSIONER: Okay, thank you. And both of those documents sought an extension of time for Mr Fitzsimmons to reply - or of the deadline given to him?

PN39

MR HALL: That's correct, Commissioner.

PN40

THE COMMISSIONER: Right.

PN41

MR HALL: If the Commission pleases, will I continue?

PN42

THE COMMISSIONER: Yes. Go on.

PN43

MR HALL: Between 1 May and 4 May 2004 Mr Fitzsimmons had a number of communications with Mr Clive Scollay, Executive Officer of the Nyangatjatjara Aboriginal Corporation which resulted in the requirement to respond in writing to the allegations to be withdrawn. However, the suspension would remain until the parties could meet regarding the matter, and the communication is an email communication and it's attachment D.

PN44

THE COMMISSIONER: Yes. Okay.

PN45

MR HALL: Due to the parties being unable to find a common meeting date, it was not until Thursday, 13 May 2004 that the parties were able to meet at the Yulara campus. At that meeting - and it was attended by Mr Fitzsimmons, Ms Harper, Mr Scollay, Mr Harry Wilson, who is the indigenous principal at the College, myself and Mr Patrick Lee from my national office, Mr Fitzsimmons addressed each allegation at length and examined witnesses and responded to further inquiries for information.

PN46

THE COMMISSIONER: What date was that, Mr Hall?

PN47

MR HALL: That was on 13 May 2004.

PN48

THE COMMISSIONER: Thank you.

PN49

MR HALL: At the conclusion of the meeting, and the meeting was a very long one, it was a three and a half hour meeting, roughly, it was agreed between the parties that the matters and the allegations had found to be either unfounded or unverifiable.

PN50

THE COMMISSIONER: The parties agreed to that outcome?

PN51

MR HALL: Yes. Mr Fitzsimmons was immediately restored to full employment and requested to return to duties on Monday, 17 May 2004.

PN52

THE COMMISSIONER: Yes. Okay.

PN53

MR HALL: It was also agreed between the parties that a serious communication breakdown had occurred between the School Executive and the senior house parent and that some processes needed to be put in place immediately to ensure that this was to be rectified. The processes - - -

PN54

THE COMMISSIONER: I'm sorry. You've now lost me completely. Mr Fitzsimmons has returned to work as a senior house parent.

PN55

MR HALL: That's correct.

PN56

THE COMMISSIONER: And where is the breakdown of working relationship?

PN57

MR HALL: There had been the breakdown in - it was agreed by the parties that there had been a breakdown in communication during the first half of 2004.

PN58

THE COMMISSIONER: Between Mr Fitzsimmons?

PN59

MR HALL: Yes.

PN60

THE COMMISSIONER: And who?

PN61

MR HALL: And the principal of the school, essentially - of the School Executive, which is made up of the senior management of the school.

PN62

THE COMMISSIONER: And distinct from the boarding management?

PN63

MR HALL: That's correct.

PN64

THE COMMISSIONER: Right.

PN65

MR HALL: And the processes that were agreed on 13 May are actually documented in correspondence sent by Mr Patrick Lee, who is one of our national officers, and it was sent to Ms Tracey Harbour on 17 May 2004.

PN66

THE COMMISSIONER: Well, that doesn't mention Mr Fitzsimmons at all.

PN67

MR HALL: No. It just - basically, it was agreed that the - Mr Fitzsimmons was cleared of the allegations, but it was agreed that there was still a procedural problem between the boarding section and the school section. It doesn't mention Mr Fitzsimmons specifically. Whether Mr Fitzsimmons was involved in it or not, it still to be rectified.

PN68

THE COMMISSIONER: Right. Okay. So what happens next?

PN69

MR HALL: Okay. Those processes have never been implemented - - -

PN70

THE COMMISSIONER: Which processes?

PN71

MR HALL: The processes contained in the letter of 17 May 2004.

PN72

THE COMMISSIONER: Are they agreed processes?

PN73

MR HALL: I'm waiting for Mr Scollay to respond, Commissioner, but the union believe they were actually the documented - it's the documentation of the agreed processes. Whatever - - -

PN74

THE COMMISSIONER: Well, just read the letter that you've referred me to. The first line says:

PN75

In respect of the current situation at the College I wish to urge that the following actions occur.

PN76

So that, to me, sounds like a proposal. It doesn't sound like an agreement. Mr Scollay, what's your position on that?

PN77

MR SCOLLAY: I don't have the correspondence in front of me, Commissioner, and I believe that you're referring to a letter to Ms Tracey Harbour. And I correct?

PN78

THE COMMISSIONER: Addressed to Ms Harbour from Mr Lee on 17 May, and it sets out a number of steps:

PN79

...to restore the College to normal and productive educational operations.

PN80

MR SCOLLAY: That would have been the provenance of Tracey Harbour who was the principal, and I'm not aware of whether she took steps because there was other activity occurring at the time in relation to her own position.

PN81

THE COMMISSIONER: I've got no idea what you're talking about, Mr Scollay, but, anyway. Are you Ms Harbour's replacement, Mr Scollay?

PN82

MR SCOLLAY: No. I'm her employer. Just to explain, Commissioner, Nyangatjatjara College is wholly owned by the Nyangatjatjara Aboriginal Corporation. It's an independent secondary college, and the Nyangatjatjara Aboriginal Corporation is an incorporated body owned by the indigenous communities of Yurmungba, Docker River and Wadijilu.

PN83

THE COMMISSIONER: Yes.

PN84

MR SCOLLAY: I'm the executive officer of the Corporation and, therefore, the employer of Tracey Harbour, who is the principal.

PN85

THE COMMISSIONER: Thank you. You're also the employer of Mr Fitzsimmons; is that correct?

PN86

MR SCOLLAY: All the parties are employed through the Corporation.

PN87

THE COMMISSIONER: Thank you. So back to you, Mr Hall. You assert that this attachment E constitutes some sort of agreed procedure for implementing better communications, and you are unable to confirm, or have confirmed, that that is, in fact, the case. These are proposals by Mr Lee, on the face of it.

PN88

MR HALL: Commissioner, they are phrased as proposals because that is the style that we communicate with our employers when we are - we have agreements. I can see your point about it looking, from an outside party who is not familiar with our relationship with Nyangatjatjara College, that it would look like we're suggesting something but, basically, that's the way we actually put our proposals to employers. We're a bit more polite than a normal industrial union.

PN89

THE COMMISSIONER: No. I think you said the only distinction I might have with your letter, I think you said that you had an agreement with the College in these terms, whereas on the face of it this appears to be a proposal, and you have nothing that rejects that as a proposal.

PN90

MR HALL: That's correct. We have nothing that rejects it.

PN91

THE COMMISSIONER: Okay. Go on.

PN92

MR HALL: If I can continue.

PN93

THE COMMISSIONER: Please do.

PN94

MR HALL: I'll explain why this letter is only there for your interest to know that the parties have actually engaged in trying to rectify some of the problems and why it wasn't implemented, because on Friday, 14 May 2004, which is what Mr Scollay was referring to, the other events going on, basically, the other new staff, supported by members of the community, withdrew their students from the campus of the Yulara boarding campus of the College. They took them back to the community so, essentially, there were no students at the boarding facility, and this was because the other new staff and representatives of the community believed that other events, other than Mr Fitzsimmons specifically, were of such a nature that they preferred to not have their children there.

PN95

THE COMMISSIONER: I'm sorry, you talked about other staff withdrawing from the College, and they withdrew their own children; is that correct?

PN96

MR HALL: Yes. Maybe Mr Scollay could actually describe the situation better than myself.

PN97

THE COMMISSIONER: Are we talking about half a dozen, or 100, or - - -

PN98

MR SCOLLAY: I believe there were probably 30 students in residence at that time, somewhere between 25 and 30 students, and we have a situation where half our staff are Aboriginal people referred to as Unawons - that's the word that they call themselves. So our Unawon staff walked off the job and took with them all the students. They drove a bus from the College and took the students, without authority of either the principal or the Executive, and left the premises. They took the children home, stating that they would not bring them back until a letter which was addressed to the principal and issues to do with communication within the College, until those matters were addressed the children would not be returned. And an announcement was made - - -

PN99

THE COMMISSIONER: Just a moment. The reasons that they withdrew the children and themselves are not directly related to the Fitzsimmons circumstance.

PN100

MR SCOLLAY: In part, but there was no particular reference to Mr Fitzsimmons in the letter that was circulated by the indigenous staff. It referred to a breakdown of communications between the staff generally, between boarding and teaching staff, particularly between the indigenous and non-indigenous staff.

PN101

THE COMMISSIONER: Yes, okay. So what happens next, Mr Hall?

PN102

MR HALL: Okay. Look, due to these events and the short period of sick leave due to the stress of the situation, Mr Fitzsimmons reported to have returned to work on 8 June 2004 when the students were back at the campus. On 9 June - he reported on 9 June that he was ready to return to work and on 9 June he was issued a letter by Mr Scollay, stepping in once again on the investigation of other - a new set of allegations.

PN103

THE COMMISSIONER: Right?

PN104

MR HALL: Basically, on 21 May - this is attachment F - Mr Scollay wrote to Mr Fitzsimmons regarding a further complaint from a carer of some students received on 21 May regarding Mr Fitzsimmons' alleged behaviour. And, again, that's attachment F.

PN105

THE COMMISSIONER: Right.

PN106

MR HALL: On 24 May 2004, Mr Fitzsimmons responded, unequivocally denying the allegations and agreeing to meeting with the corporation school executive regarding these matters. On 3 June 2004, Mr Fitzsimmons, accompanied by Mr Paul Richards, who was a teacher at the college at the time - Mr Richards no longer works at the college - attended a meeting with the corporation school executive regarding the allegations and addressed each of them verbally. Mr Fitzsimmons has said to me the meeting concluded with the corporation responding that they needed to further investigate the matters. Now, the reason why I say Mr Fitzsimmons has said that to me is because only notes were taken at that meeting; there were no minutes produced from that meeting.

PN107

THE COMMISSIONER: So at this meeting on 3 June the college management representatives, you say, undertook to investigate matters further?

PN108

MR HALL: That's correct. So Mr Fitzsimmons is suspended on full pay and this is the section of suspension with full pay that is ongoing now, Commissioner. On 9 June 2004, Mr Fitzsimmons responded again, denying the allegations in writing. Since that time, Mr Fitzsimmons has remained suspended on full pay. Now, the reason why this is has now come up and, you know, it's a long time since 9 June, obviously. On 25 August 2004, Mr Scollay emailed correspondence again requesting Mr Fitzsimmons to address the issues raised on 21 May 2004 - and I have given you attachment H for that, Commissioner.

PN109

THE COMMISSIONER: Are these new allegations?

PN110

MR HALL: No, they're the same ones that were raised before with Mr Fitzsimmons on 21 May and were addressed by Mr Fitzsimmons on 3 June in the meeting with the school executive corporation.

PN111

THE COMMISSIONER: They appear to be fairly non-specific.

PN112

MR HALL: Well, we would agree with that, Commissioner. If you look at attachment I, it's the union's response to that letter. And, of course, you've got attachment J there as well, which is Mr Scollay's reply to my letter to Mr Scollay.

PN113

THE COMMISSIONER: Attachment J doesn't appear to be complete in the package of documents that I have, Mr Hall. It's only one page.

PN114

MR HALL: I apologise, Commissioner. I think that the relevant bits are on the first page. I think the second page is basically salutations and - - -

PN115

THE COMMISSIONER: Right. Okay. So in the 1 September letter, this is Mr Scollay saying to you that he's prepared to extend the deadline for Mr Fitzsimmons' response to close of business next Monday; is that correct?

PN116

MR HALL: That's correct.

PN117

THE COMMISSIONER: Well, why is the matter before the Commission now?

PN118

MR HALL: Okay. Well, basically, Commissioner, while this process was going on, the union was looking at ways of assisting Mr Fitzsimmons, because essentially the union seeks the reinstatement of Mr Fitzsimmons.

PN119

THE COMMISSIONER: Well, with very great respect, Mr Hall, the application before me has nothing to do with reinstatement. If you're concerned about so-called reinstatement, there's a proper head of power for Mr Fitzsimmons to apply under section 170CE and have the alleged harshness, unjustness and unfairness of his termination dealt with formally within the unfair dismissal jurisdiction of the Commission, not by way of this notification, which is a 170LW about the application of the agreement.

PN120

MR HALL: Commissioner, I would argue that Mr Fitzsimmons hasn't been terminated yet. He's still in the middle of the due process clauses within the agreement.

PN121

THE COMMISSIONER: Well, if you read 170CE, he still has scope to apply under 170CE.

PN122

MR HALL: I take that under advice from the Commissioner.

PN123

THE COMMISSIONER: Well, I don't give advice, Mr Hall. I'm the bloke that has got to make decisions. Sadly, you've got to take advice elsewhere. 170LW seems to be a limited mechanism for the Commission to be able to assist the parties to resolve what is obviously a highly emotive and highly charged atmosphere, from what you've said. I'm just concerned that you have probably picked the wrong vehicle - - -

PN124

MR HALL: Yes.

PN125

THE COMMISSIONER: - - - to get the Commission's involvement, to date.

PN126

MR HALL: Well, what we're essentially seeking, Commissioner, is basically that we believe that Mr Fitzsimmons is still in employment, the due process procedures in the agreement, in clause 88 of the agreement, can actually be followed by the employer but the employer is choosing not to do so on the basis that they aren't - - -

PN127

THE COMMISSIONER: Well, with very great respect, Mr Hall, there is nothing that I can do to force a party to an agreement to abide by the agreement. It is your agreement, it belongs to the parties, the parties are bound to implement it, and if you don't like it, then I presume you initiate an action in the Federal Court to sue the other side for breach of agreement. Let's be realistic. This is about Mr Fitzsimmons' suspension and possible termination. You say that the employer has breached the due process clauses of the agreement, and yet this matter has been under direct discussion, direct communication, exchange of correspondence, since May - or since April. And you say due process hasn't been followed? That's a bit rich, isn't it?

PN128

MR HALL: I'm saying the due process clauses could provide a solution to this matter if they were followed by the employer, Commissioner.

PN129

THE COMMISSIONER: How do you say that with confidence, Mr Hall?

PN130

MR HALL: Because the due process clauses in the agreement - and when I say "due process" I'm not talking about the generic terms. In the education industry there is basically a form of disciplinary procedure called due process and then it's detailed in the agreement in it's actually the way it is followed.

PN131

THE COMMISSIONER: And you're saying the college has failed to implement that?

PN132

MR HALL: That's correct.

PN133

THE COMMISSIONER: Well, you better sue the college, I guess, for breach of contract. I can't do anything more.

PN134

MR HALL: I understand that - - -

PN135

THE COMMISSIONER: I can't chain you to a table and make you talk and abide by due process. If due process is that important to the parties then go away from the Commission, implement due process, and then, as a consequence of the outcome, fix the problem. Or, should it fail, do something about it.

PN136

MR HALL: Okay, Commissioner.

PN137

THE COMMISSIONER: I will do whatever I possibly can to have sensible adults approach dispute settling, but if you're telling me at this point in time that the discussions that have taken place, the exchange of correspondence, the defences and the allegations that have been made have not been thoroughly aired, how can the so-called due process do any better than that?

PN138

MR HALL: Well, I would believe, Commissioner, both parties have attempted to resolve this situation through that correspondence and both parties are now in a position where basically we have run into a point where we cannot resolve this between ourselves and we are requesting the Commission's assistance in providing a way out of this matter.

PN139

THE COMMISSIONER: Well, with very great respect, Mr Hall, that simply cannot be done by way of a video hearing. I am certainly prepared to allocate time. As you are aware, I will be in Darwin in a fortnight's time and I can list the matter for hearing with people face to face - not by way of camera, face to face. But the parties will have to be prepared to keep their cool until the week commencing 20 September when I will be in Darwin. I have a full book of cases in Darwin. I am happy to create some time to meet with the parties face to face to try and deal with this.

PN140

MR HALL: I would be prepared to participate in such a process, Commissioner.

PN141

THE COMMISSIONER: All right. Are you prepared to follow what you regard as the due process, the various steps associated with that in the meantime?

PN142

MR HALL: Yes, Commissioner. I'm more than happy to follow them. I believe that we have been following them in fact.

PN143

THE COMMISSIONER: Well, you say you've been following them. You say the College has not been following them. I can't chain someone to a table and make them talk, Mr Hall.

PN144

MR HALL: I understand that.

PN145

THE COMMISSIONER: If, you know, consenting adults can't talk, you'll never resolve it no matter what the agreement says. Okay. Mr Scollay, can I now turn to you. I've had now what could only best be described as a very thorough briefing of this dispute from Mr Hall and with very great respect there is always another side to the story. What is the College's side of the story?

PN146

MR SCOLLAY: You heard the sequence of events in relation to the initial suspension which was an initial hearing of Mr Fitzsimmons, and the process that followed that from which the letter that was sent by Mr Hall's colleague was received by Tracey Harbour. To set the context, the Principal at the time, Tracey Harbour, was herself going through a process of probation and on 4 June that probation was - she was actually dismissed. She received a letter of dismissal that she had failed her probation. So the climate quite extraordinary nature referring, during the period that these events were happening.

PN147

Part of the problem that we had with the Principal at the time was that she did not follow due process in respect to the first suspension. Nonetheless concurrent with that, on or about - in mid-May we received some correspondence from a parent, a Mr Kalmar - Mr Lesley Kalmar - who when I say "we", the Executive of the Corporation received correspondence from Mr Kalmar. He's himself an Aboriginal person. He doesn't write a great deal. There are two concerns expressed - that he had concerns about Mr Fitzsimmons disciplinary process in relation to his grandson. That matter was brought to the attention of the Executive and led to the letters being sent to Mr Fitzsimmons and formed the basis for the investigation that we have subsequently pursued.

PN148

The time frame - on the occasions that Jerry came down to the meeting with the Executive which, I think, was 13 May and the allegations against Mr Fitzsimmons were aired, which were strenuously rebutted, and we indicated we would need to continue the investigation. It was intended that at that same meeting Mr Kalmar would bring his grandson and allow us to continue the investigation.

PN149

In fact what followed was that very soon after that Tracey Harbour was dismissed and Mr Kalmar took a position in relation to that dismissal which made it very difficult to speak to him for a period of time. And then he went to Darwin for a month with his grandson and so the entire process had slowed down for much longer than we ever intended.

PN150

We finally got to interview Zac Kalmar at 3.15 on Thursday, 12 August. Zac is a 14 year old. He has been in Mr Fitzsimmons' care for most of the time that Mr Fitzsimmons has been the Senior House Parent. He has alleged, though, that on a number of occasions Mr Fitzsimmons got angry with, in his view, inappropriate - - -

PN151

THE COMMISSIONER: Are those allegations made by a 14 year old student backed up by similar allegations independently obtained?

PN152

MR SCOLLAY: Similar allegations independently obtained - - -

PN153

THE COMMISSIONER: From other students?

PN154

MR SCOLLAY: No. At this stage it's only Zac Kalmar's account.

PN155

THE COMMISSIONER: So it's one 14 year old's students allegations against Mr Fitzsimmons and Mr Fitzsimmons' denial of those allegations.

PN156

MR SCOLLAY: Yes. We also have some complaints from other parents which we have found it difficult to investigate, but there are a number of recent submissions from parents from Umampa and from Boonajulla and grandparents who have alleged that Mr Fitzsimmons' behaviour is inappropriate in relation to the students. And we have so far only been able to interview Zac Kalmar to this point in time. I will point out, Commissioner, the area that we covered when working with indigenous people in a setting - traditional situation, the distances between our communities are 250 kilometres from Yulara to Dokramidla of approximately 180 and 150 kilometres to Emopa, and it's not always easy to arrange to pursue investigations of this nature.

PN157

THE COMMISSIONER: I understand that.

PN158

MR SCOLLAY: I should point out I'm acting under instruction from the Executive, Mr Commissioner, that at a meeting - at two meetings now that have been held, the Executive have got the view that Mr Fitzsimmons' behaviour toward the children on the basis of the accounts of a number of parents and indeed some of the Executive members themselves, the view of the Executive is that Mr Fitzsimmons' behaviour towards the students is incompatible with the expectations of the Executive and of the parents, and I'm under instruction by the Executive to say that if Mr Fitzsimmons were ever to return to the College there would be a full walk-out of all the staff - of all the indigenous staff and the children would not be returned, and an indication of that was the walk-out that occurred that we've already referred to.

PN159

THE COMMISSIONER: Well, with very great respect, Mr Scollay, those sorts of threats don't wash on me at all. This is about a man's employment. There are allegations now in respect of his alleged behaviour. What you're saying is then that's backed up by threats. The simple fact is that in the end a termination of employment dispute between Mr Fitzsimmons and your position as Executive Officer and those to whom you report, being the Corporation, may very well find themselves on the receiving end and having to defend the grounds for Mr Fitzsimmons' termination. So, at least for the time being, the issue of threats can't be taken into account. This is about trying to resolve an industrial dispute before it becomes a fully blown unfair dismissal dispute. Do you accept that that's the context in which we are trying to resolve the differences?

PN160

MR SCOLLAY: Absolutely, Commissioner. I have received legal advice to that effect. Nonetheless, I'm under instruction from the Executive to continue the investigation as appropriate and to follow what the Executive considers is due process by interviewing the students as and when we can find them, and at this point in time the investigation has only managed to speak to Zac Kalmar. However, they are aware that we are pursuing a process of investigation.

PN161

THE COMMISSIONER: And what's your understanding of the time frame of that?

PN162

MR SCOLLAY: The time frame would be - I would like to think that we could resolve this matter as quickly as possible. However, I have explained to you that it is difficult to - and I am sure that the union is aware of the difficulties of communication over these distances. So I can't really answer that, other than to say that we would like to deal with it as quickly as possible.

PN163

THE COMMISSIONER: Do you see any progress able to be made in the next fortnight?

PN164

MR SCOLLAY: There is a possibility that we may have in respect to one or two more students.

PN165

THE COMMISSIONER: Well, you heard what I had to say to Mr Wall at the conclusion of his fairly extensive submissions, and that is that I would be prepared to meet with the parties face to face in the week commencing 20 September, but that the time - in between time - ought to be used for the so-called due process to be properly followed. Is that a course of action that you can participate in, or are you denied doing that?

PN166

MR SCOLLAY: Well, Mr Commissioner, I would like to think that we are following due process, in the exchange of correspondence in keeping Mr Fitzsimmons and the union informed, in following the process of investigation to the best of our ability, and that we have met with Mr Fitzsimmons at an earlier date and have suggested that we had given him the opportunity to respond. We have extended that to next Monday, the opportunity to respond to this separate allegation, and we would be happy to meet with Mr Fitzsimmons. So we believe that we are following due process.

PN167

THE COMMISSIONER: Well, you also heard my fairly facetious remarks I made to Mr Hall about what has obviously been a very extensive series of meeting and examinations, investigations and responses, to date. It's not falling - allegedly not falling within the atmosphere of the disputes - not dispute settlement procedure - the due process procedures. I think I am satisfied, on the face of what I have heard to date, that due process is being followed.

PN168

But perhaps it ought to be followed a bit more thoroughly and a bit more precisely so that in the end there can be an outcome one way or the other, Because what I foreshadow, Mr Scollay, is that if, in the end, your investigations and your instructions lead to Mr Fitzsimmons leaving his position and the Aboriginal corporation pursuing its rights to terminate his employment, then I expect the parties will find themselves in the Commission on another day with far more serious issues to then have to justify in the course of an unfair dismissal dispute. Have you been involved in those sorts of matters in the Commission before?

PN169

MR SCOLLAY: I haven't, but our legal advisers have.

PN170

THE COMMISSIONER: Right. Well, I am sure they will be able to provide you with proper advice as to the difficulties that are associated with proof, and the difficulties associated with outcomes related to termination of employment matters. They are not easy. But there are onuses of proof, and the onuses of proof rest firstly upon the applicant, and secondly upon the employers to justify their actions for terminating an employee's employment. So I think it's that sort of atmosphere that surrounds the circumstances that we're all faced with at the present time.

PN171

Mr Fitzsimmons, whilst you are there, is there anything that you would like to say? Have regard to the fact that we are on the public record and there is a formal transcript being kept of these proceedings. Is there anything that you wish to say?

PN172

MR FITZSIMMONS: Yes. Good morning, Mr Commissioner. I actually only say that I feel that the allegations which I have spoken to on two occasions - and I have also asked a person to be present with me, the professional staff, the teaching staff. I also have not heard mentioned through this whole process what I did mention about getting proof from 12 to 14 year old students and them going back to their parents. I have never once heard the fact that I have been the supervisor of approximately 13, 14 staff. I have never heard them being mentioned about them, what their opinion of all this what is happening.

PN173

I have a background - I think that was mentioned at the beginning - of working with children for many years in the government. I certainly have a method of training my staff to the greatest duty of care, and I'm sure that Mr Scollay would accept that it's one of the areas that I have been very strong on in recommending for many things at the college, is the duty of care of our students, and also the duty of care for me as a supervisor of my staff. I believe that the staff, those that have resigned since this has all started and those that are currently there that I have spoken to, are happy and willing to give evidence to any of these allegations. I can only say, Mr Commissioner, that they appear to be very much trumped up, but there is a background to them, and I agree with you this needs to be thoroughly talked out in a proper manner, with the proper people face to face, which is what I had requested by the people all the time they've made the allegations about me.

PN174

THE COMMISSIONER: Just before you go on, Mr Fitzsimmons, Mr Scollay, are you in a position to facilitate such a meeting between Mr Fitzsimmons and the persons who he says have not as yet been interviewed, and the people that you represent?

PN175

MR SCOLLAY: Mr Commissioner, that was - I referred to that on 13 May when we first initially spoke with Mr Fitzsimmons. We were attempting to facilitate the situation with Mr Kalmar, with Lesley Kalmar, and his grandson. However, the circumstances and the removal of the principal had meant that there was a hostile atmosphere towards the corporation from Mr Kalmar. In think the circumstances have mellowed somewhat since then in relation to that relationship with Mr Kalmar, and I think it would be now possible to facilitate such a meeting with other parties of similar views.

PN176

THE COMMISSIONER: What about the persons to whom Mr Fitzsimmons has just referred, being other teaching staff, who he understands have not been interviewed?

PN177

MR SCOLLAY: With due respect to Mr Fitzsimmons, we have had a number of conversations with both present and past staff. Some staff support the position that has been followed by Mr Kalmar; some staff support Mr Fitzsimmons' position. But we have conducted a quite rigorous number of interviews with members of staff.

PN178

THE COMMISSIONER: And have records been kept of those interviews?

PN179

MR SCOLLAY: Yes, I have kept records of most of those.

PN180

THE COMMISSIONER: And presumably those people would be prepared to give evidence should this matter end up in the Commission in another atmosphere?

PN181

MR SCOLLAY: Oh, absolutely. Though some of those staff, as Mr Fitzsimmons has pointed out, have since resigned. It was a quite volatile situation, as I have described, with the previous Principal; and indeed, we lost most of our senior teaching staff at that time, and we had a situation of considerable industrial unrest, which led to the dismissal of the - or the non-completion of probation.

PN182

THE COMMISSIONER: Yes, okay. Can I come back to you, Mr Fitzsimmons: it appears as though some of those people have been interviewed and have made statements. In my view, you should be entitled to see those statements - - -

PN183

MR FITZSIMMONS: I haven't yet.

PN184

THE COMMISSIONER: - - - as part of your preparedness to defend or promote your position in this whole dispute. But what else did you want to say, Mr Fitzsimmons?

PN185

MR FITZSIMMONS: Well, really, I think that's the crux of the whole thing here because, as you have been hearing, there was a volatile situation which really brought my own integrity, everything, into running here with this whole situation. Nothing major had occurred since July 2002 until I'd gone down there and virtually until the recent principal was appointed in January. And it really got so bad that, if we heard the name of Les Kalmar, hopefully we do have to be face to face with yourself or any other party or a more concise history of all of what has occurred will bring a better picture to this. I personally will probably will finish off without going too far and say too much at this point.

PN186

But I personally feel that no one - and I put this in correspondence to Mr Scollay - no one in all of the difficulties that have been occurring, particularly since January this year, people going off, taking students away, the previous principal not referring to executive matters properly, the Commission having the EBA being breached and quite a number of changes by the previous principal, the mass resignation of some six teachers, all these things, no one else was dealt with as a suspension that I am aware of, on pay or no pay, and what my argument is in my correspondence is that Mr Karma, who is an Indigenous man, is arguing for my suspension, and Mr Karma has acted as a proxy on our executive. Most of our executive are indigenous. The executive has the part to do with others that have been doing the wrong thing to suspend them on pay or whatever. This has never occurred. This has occurred to me now twice, and I've been suspended not on fact but only on allegations.

PN187

Now, this goes a long way and it would be too long to explain here, but I just think that - and I have argued all along - I just want to get back to my job. My current staff, who I have supervised, would prefer that I am back to my job. I have spoken to them as recently as yesterday. And that is all I can say, Mr Commissioner. I think that the staff have got a say in this whole thing, but I am the senior house parent. I only act with the students when the house parents are unable to control the situation.

PN188

That has been the case with the alleged allegations, because whenever I acted on any situation I always had the house parents present with me, whether they are Indigenous or non-Indigenous. There is proof of all - all of these situations, and I certainly agree with you that the current situation, the current allegations - they are so non-specific that I can't even find records of anything that would have occurred in the winter of 2003. But I've got records, and I always prepare records and prepare reports for the principal, incident reports when situations do occur. I believe I have got copies of most of those. Mr Scollay would have access to copies of all of those. I can stand and say here that there is proof of anything that has ever occurred and there has always been witnesses present with me, because when I act as a senior house parent I act when the ordinary house parents are unable to deal with the situation, but they are always present with me.

PN189

And I really don't think I can say much more than that. I just really want to get back to do my job. And I agree too that all these threats that are supposed to be going around that the students will not come back and they will be keeping away, these threats have been getting at me now for months and months and the students are still coming to the college.

PN190

THE COMMISSIONER: All right, thank you, Mr Fitzsimmons. Mr Scollay, is there anything that you have heard from Mr Fitzsimmons that is new?

PN191

MR SCOLLAY: No, Mr Commissioner.

PN192

THE COMMISSIONER: And is the circumstance still that you are under an instruction that Mr Fitzsimmons is not to return to the college?

PN193

MR SCOLLAY: That is the circumstance.

PN194

THE COMMISSIONER: All right.

PN195

MR SCOLLAY: And that I am to continue with the process of suspension and investigation, following the due process.

PN196

THE COMMISSIONER: Well, with very great respect it has taken months, and it is incomplete, and that is just not good enough. And the onus rests with you and the people that you represent to conduct these investigations thoroughly and expeditiously, so that perhaps in a fortnight's time, when I am in Darwin, I can meet you all face-to-face and we can deal with whatever issues then require Commission assistance.

PN197

What concerns me is that on the face of what I have heard to date, there is probably little power for the Commission to exercise at this point in time, and I fear that the whole thing is going to be recycled on another day before another Member of the Commission as an unfair dismissal application pursuant to 170CE of the Act, in which case each side will have to make and properly defend its position, and there are consequences for both sides. There are costs associated for both sides. There is a highly unpredictable outcome for both sides. Mr Hall, is there anything further you want to say at this time?

PN198

MR HALL: Not at this stage, Commissioner.

PN199

THE COMMISSIONER: Well, I think it is about time a bit of a huffing and puffing was set to one side, and the accusers and the accused be given the opportunity to meet face-to-face with their independent representatives to try and get to the bottom of some of these differences. And I will repeat: I fear if you don't resolve these differences yourselves, there is very little the Commission can do under the present application, but there probably is something the Commission will have to do under an unfair dismissal claim. And nobody might like the outcome that arises from that.

PN200

But can I have a commitment from you, Mr Hall, and from you, Mr Scollay, that you will do whatever you each respectively can do over the next fortnight to try and resolve this matter face-to-face with the principal protagonists and their representatives, and be in a position then to report back to me during the week commencing 20 September.

PN201

MR HALL: you have that undertaking from me, Commissioner.

PN202

MR SCOLLAY: You certain have that undertaking from me, Commissioner.

PN203

THE COMMISSIONER: All right. Well, is there anything that you wish to place on the public record, Mr Scollay, at this time, before I adjourn these proceedings to a time to be re-listed in Darwin?

PN204

MR SCOLLAY: No, I don't think so, other than in relation to the time in Darwin, I am actually giving a paper at a conference in Queensland on the Friday of that week, at the end of that week. That is the 24th, I think.

PN205

THE COMMISSIONER: You would be travelling on the Thursday, wouldn't you?

PN206

MR SCOLLAY: Yes. Well, the Wednesday would probably be the best, in terms of logistics.

PN207

THE COMMISSIONER: Right.

PN208

MR SCOLLAY: Bearing in mind that moving from Yallara to Darwin is not always as simple as it appears.

PN209

THE COMMISSIONER: No, I appreciate that. I know the area. Looking at my diary for that week, whilst I have a matter first thing in the morning on Wednesday, the 22nd, and a matter mid-morning, I will shift that mid-morning matter to another time, and allocate some time from 11 am on Wednesday, 22 September.

PN210

But what I will need from you both at that time is, firstly, proper representation by those who can make decisions. That will not be a time for either one side or the other to have to go back to principals to, you know, get approval. Mr Scollay, you need to come to that conference, or that hearing - it will commence as a re-hearing of today, a re-listing of today - but you need to come with very clear authority as to what can be achieved by way of an outcome.

PN211

MR SCOLLAY: Yes, sir.

PN212

THE COMMISSIONER: Okay. And similarly you, Mr Hall. And you will have Mr Fitzsimmons with you, I expect.

PN213

MR HALL: We will make sure of that, Commissioner.

PN214

THE COMMISSIONER: Okay. Well, I will adjourn these proceedings now, and it will be re-listed for 11 am on Wednesday, 22 September in Darwin for a report-back hearing, and further conciliation if that is at all possible. Anything for the record before I conclude, Mr Hall?

PN215

MR HALL: No, thank you, Commissioner.

PN216

THE COMMISSIONER: All right. Fine, well, I will adjourn the proceedings now to that time and date.

ADJOURNED UNTIL WEDNESDAY, 22 SEPTEMBER 2004 [11.15am]