Industrial Magistrate dismisses the claim by two employees that the employer breached clause 36A of the Public Service Award 1992 during disciplinary processes.

The Industrial Magistrate dismissed the employee’s claim because the Industrial Magistrate found employer clearly conveyed to each employee that they were permitted to have a union representative, the representative advocated on behalf of the employee and there is no requirement for direct correspondence with an employee’s representative.

Background

On 22 May 2020, the respondent commenced separate disciplinary processes for two employees under Part 5 of the Public Sector Management Act 1994 (WA).

By letter dated 15 June 2020, Ms Arntzen (Industrial Officer, Civil Service Association) notified the respondent that the claimant represented one of the employees and responded to the disciplinary allegation. By letter dated 12 June 2020, Mr Tebbutt (Industrial Officer, CSA) notified the respondent that the claimant represented the other employee and responded to the allegation.

On 21 January 2021, the respondent emailed the employees separately, inviting them to meetings to be held the following day, 22 January 2021. The emails explained the purpose of the meeting was to discuss the outcomes of their respective disciplinary processes. However, such emails were not sent to Ms Arntzen or Mr Tebbutt.

Contentions

The claimant alleged the employer contravened clause 36A of the Public Service Award 1992 by:

1. not directly informing the claimant or the employee’s representatives (Ms Arntzen and Mr Tebbutt) about the meeting on 22 January 2021 (contravening cl 36A(4));
2. not allowing Ms Arntzen to advocate on behalf of the employee which she represented at the meeting (contravening cl 36A(6));
3. not providing the letter of outcome to Mr Tebbutt prior to the meeting (contravening cl 36A(4); and
4. refusing to reschedule the meeting when requested by Mr Tebbutt (contravening cl 36A(5).

Findings

The Industrial Magistrate dismissed the claim.

Contention 1

The representative’s letters constituted notification in writing of representation as contemplated. Thus, clause 36A(4) was engaged, requiring the employer to recognise the “person’s” representational capacity in all future dealings on that matter.

The employer clearly conveyed to each employee that they were permitted to have a union representative with them at the 22 January 2021 meeting. This constituted recognition of the claimant’s representational capacity in the disciplinary matters.

Although the employer dealt directly with each employee, an employer subject to the Award is at liberty to correspond directly with its employees, while at the same time recognising the representational capacity of a nominated representative in the manner contemplated by cl 36A of the Award.

Contention 2

Ms Arntzen gave evidence, corroborated by contemporaneous documentation created by the employee, that the employer’s director spoke over her at the 22 January 2021 meeting. On the basis of this evidence, the Industrial Magistrate accepted that the employer’s director had spoken over Ms Arntzen and effectively shut her down.

However, the evidence also showed that Ms Arntzen had made comments on the disciplinary process during the meeting, including noting that the meeting had been arranged at very short notice and that this had caused considerable stress for the employee. By making such statements, Ms Arntzen was advocating for the employee.

Thus, the claim that the employer breached cl 36A(6) of the Award by not allowing Ms Arntzen to advocate on behalf of the employee fails.

Contention 3

As to this claim, the employer must recognise the “person’s” representational capacity in all future dealings on that matter. There is nothing in the Award which justifies interpreting the word “recognise” as including a requirement of service of documents upon an employee’s representative.

Contention 4

Following the employer’s refusal to reschedule the meeting at Mr Tebbutt’s request, the meeting went ahead at the scheduled time, and Mr Abrahamson of the CSA attended as the employee’s representative.

Thus, there was no breach of cl 36A(5) of the Award because the respondent permitted the representative, i.e. the CSA, to attend, in the form of Mr Abrahamson.

The decision can be read here.