2023 WAIRC 00149
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2023 WAIRC 00149

CORAM
: INDUSTRIAL MAGISTRATE E. O'DONNELL

HEARD
:
WEDNESDAY, 21 SEPTEMBER 2022

DELIVERED : WEDNESDAY, 22 MARCH 2023

FILE NO. : M 170 OF 2021

BETWEEN
:
THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED (THE CSA)
CLAIMANT

AND

DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AS THE EMPLOYING AUTHORITY
RESPONDENT

CatchWords : INDUSTRIAL LAW – Breach of award – recognition of representational capacity of union – recognition of choice of representative – where employees subject to disciplinary action – construction of the term “recognise” in subclauses of Award cl. 36A
Legislation : Industrial Relations Act 1979 (WA)
Instrument : Public Service Award 1992
Public Sector Management Act 1994 (WA)
Result : Claim dismissed
REPRESENTATION:

CLAIMANT : MS D. LARSON (INDUSTRIAL OFFICER) FROM CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED
RESPONDENT : MR J. CARROLL (OF COUNSEL) FROM STATE SOLICITOR’S OFFICE



REASONS FOR DECISION
Introduction
1 On 22 May 2020, the respondent commenced separate disciplinary processes against two of its employees, namely Ms Jasmina Malkoc (Ms Malkoc) and Mr Dimce Petrovski (Mr Petrovski), under Part 5 of the Public Sector Management Act 1994 (WA) (the PSMA).
2 By letter dated 15 June 2020, Ms Danielle Arntzen (Ms Arntzen) (Industrial Officer, Civil Service Association) (CSA) notified the respondent that the claimant represented Ms Malkoc in her disciplinary process. The letter also contained the response to the allegation of breach of discipline on behalf of Ms Malkoc. Exhibit 3, Document 3.

3 By letter dated 12 June 2020, Mr Jason Tebbutt (Mr Tebbutt) (Industrial Officer, CSA) notified the respondent that the claimant represented Mr Petrovski in his disciplinary process. That letter also attached Mr Petrovski’s response to the allegation of breach of discipline. Exhibit 3, Document 4.

4 On 21 January 2021, the respondent sent emails to both Ms Malkoc and Mr Petrovski, inviting them to meetings to be held the following day, 22 January 2021. The emails explained the purpose of the meetings, which was to tell Ms Malkoc and Mr Petrovski the outcomes of their respective disciplinary processes.
5 Those emails were not sent directly to the claimant’s representatives, Ms Arntzen or Mr Tebbutt.
6 The claimant claims that the respondent has contravened cl 36A of the Public Service Award 1992 (the Award) by not sending its emails of 21 January 2021 directly to its representatives, and in various other ways.
Representation Clause
7 Clause 36A of the Award, often referred to as the “representation clause”, came into effect on 1 January 2021. It provides as follows:
Officer Entitlement to Representation
(1) For the purposes of representation under this clause, significant matters are discipline, performance, officer entitlements, fitness for work and return to work.
(2) In respect of significant matters an officer’s right to representation includes advocacy.
(3) The employer will recognise the choice of representative made by an officer, which may include a union representative, a union official or an employee of the union.
(4) If:
(a) a representative nominated by an officer, being an organisation within the meaning of the Industrial Relations Act 1979 (the Act), an employee or officer of such an organisation, a union representative within the meaning of clause 36(2) of this Award, a person registered under section 112A of the Act, an employee or officer of such a person, or a legal practitioner, or
(b) an officer,
notifies the employer in writing that a representative acts for the officer in relation to a matter and provides the identity and contact details of the representative, the employer must recognise that person’s representational capacity in all future dealings on that matter.
(5) The presence of a representative is not necessary at every meeting between an officer and the employer (or a representative of the employer). Where the meeting involves a significant matter the representative shall be permitted to attend. All parties will make reasonable efforts to avoid unnecessary delays.
(6) The employer accepts a representative can advocate on behalf of the officer at the meeting. For the purposes of this clause only, an advocate may make comments on the process, ask questions, seek clarification of questions put to the officer, seek adjournments to confer with the officer and provide further comments at the conclusion of the interview, but will not answer questions of fact put to the officer.
Alleged Contraventions
8 Having regard to the Statement of Claim, the evidence at trial and the cross-examination of the respondent’s witness, it appears that the claimant is alleging that the respondent contravened cl. 36A of the Award in the following ways:
(i) The respondent contravened cl. 36A(4) of the Award in respect of Ms Malkoc by not directly informing the claimant and/or Ms Arntzen about the meeting scheduled on 22 January 2021;
(ii) The respondent contravened cl. 36A(6) of the Award in respect of Ms Malkoc by not allowing Ms Arntzen to advocate on behalf of Ms Malkoc at the meeting on 22 January 2021;
(iii) The respondent contravened cl. 36A(4) of the Award in respect of Mr Petrovski by not directly informing the claimant and/or Mr Tebbutt about the meeting scheduled on 22 January 2021;
(iv) The respondent contravened cl. 36A(4) of the Award in respect of Mr Petrovski by not providing the letter of outcome to Mr Tebbutt prior to the meeting of 22 January 2021;
(v) The respondent contravened cl. 36A(5) of the Award in respect of Mr Petrovski by refusing to re-schedule Mr Petrovski’s meeting in view of Mr Tebbutt’s request that the meeting be held the following week.
Findings
Alleged contravention (i)
9 As noted at paragraph 7 of the Statement of Agreed Facts, by letter dated 15 June 2020 Ms Arntzen notified the respondent that the claimant represented Ms Malkoc with respect to the alleged breach of discipline.
10 Although there was no direct evidence on the point, I infer that Ms Malkoc nominated the claimant to represent her with respect to the disciplinary matter, and this led to the writing of the letter.
11 Specifically, the letter stated: Exhibit 3, Document 3.

The Civil Service Association of Western Australia Incorporated (the CSA) represents Ms Malkoc and this letter is to be taken as her response.
12 The letter provided the identity and contact details of the CSA itself, as well as Ms Arntzen personally.
13 In closing the letter, Ms Arntzen wrote:
If you have any questions or would like to discuss this matter further, please do not hesitate to contact me on [phone number] or via email at [Ms Arntzen’s work email address].
14 Ms Arntzen’s letter constituted notification in writing of representation on a matter, as contemplated by cl. 36A(4) of the Award.
15 Consequently, once cl. 36A(4) of the Award came into effect, the respondent was required to recognise the “person’s” representational capacity in all future dealings on that matter; the use of the word “must” in the clause indicating a mandatory action on the part of the employer.
16 With respect to the “person” whose representational capacity an employer is required to recognise when cl. 36A(4) of the Award is enlivened: in my view the word “person” must be capable of referring to an individual or to an organisational “person”. This is because “a representative nominated by an officer” may be:
an organisation within the meaning of the Industrial Relations Act 1979 (the Act), an employee or officer of such an organisation, a union representative within the meaning of clause 36(2) of this Award, a person registered under section 112A of the Act, an employee or officer of such a person, or a legal practitioner
and such representative may act “for an officer in relation to a matter”.
17 The claimant is an organisation within the meaning of the IR Act.
18 In this case, the easiest way for the respondent to engage with the claimant was by communicating with Ms Arntzen, as she was the individual industrial officer who was assisting Ms Malkoc.
19 However, there is no evidence that Ms Arntzen was “engaged” by Ms Malkoc on a personal basis as her representative. In her statement, Ms Arntzen simply says that in June 2020, she assisted Ms Malkoc to respond to allegations of breaches of discipline. Exhibit 1, [3].
She does not preface this by stating that she had been specifically engaged or appointed as Ms Malkoc’s representative. And under cross-examination at trial, Ms Arntzen agreed that it was the claimant, rather than she personally, who was representing Ms Malkoc with respect to the disciplinary matter. Trial Transcript, p 13.

20 Having regard to the agreed facts and the evidence, I find that the respondent was required to recognise the representational capacity of the claimant, and not Ms Arntzen personally.
21 On 21 January 2021, the respondent invited Ms Malkoc to a meeting scheduled at 11:00 am on 22 January 2021. The purpose of the meeting was to inform Ms Malkoc of the outcome of the investigation into the alleged disciplinary breaches.
22 The terms “representational capacity” and “future dealings” are not defined in the Award. They bear their ordinary English meaning.
23 A meeting scheduled by an employer to discuss the outcome of an investigation into a disciplinary matter is clearly a “dealing” on that matter.
24 In my view, the invitation to such a meeting is also a “dealing” on the matter.
25 The invitation to Ms Malkoc to attend the meeting on 22 January 2021 post-dated Ms Arntzen’s correspondence informing the respondent that the claimant represented Ms Malkoc in the disciplinary matter and was therefore a “future dealing” on that matter, in which the respondent was required to recognise the claimant’s representational capacity.
26 The respondent did not send the meeting invitation either to the claimant or to Ms Arntzen.
27 However, the respondent did inform Ms Malkoc that she was permitted to have a union representative with her in the meeting. Exhibit 3, Document 5.

28 Like “representational capacity” and “future dealings”, “recognise” is not defined in the Award, so it bears its ordinary meaning.
29 The Macquarie Dictionary defines “recognise” as:
1. to know again; perceived to be identical with something previously known.
30 However, in the context of the Award, the Cambridge Dictionary provides a more apt definition, namely:
to accept that something is legal, true, or important.
31 A thing may be “recognised”, that is, accepted as legal, true, or important, in any number of ways, any of which may be appropriate in a particular context.
32 In order to determine whether the respondent’s invitation to Ms Malkoc recognised the claimant’s representational capacity, I must take into account the terms of cl. 36A of the Award as a whole. Significantly:
(i) Discipline is a “significant matter” – cl. 36A(1) of the Award;
(ii) In respect of significant matters an officer’s right to representation includes advocacy – cl. 36A(2) of the Award;
(iii) Where the meeting involves a significant matter the representative shall be permitted to attend – cl. 36A(5) of the Award;
(iv) The employer accepts a representative can advocate on behalf of the officer at the meeting – cl. 36A(6) of the Award.
33 In view of the identified provisions of cl. 36A of the Award and in view of the fact that the respondent had received the correspondence contemplated by cl. 36A(4) of the Award, it stands to reason that when the respondent invited Ms Malkoc to the meeting, it had to convey clearly to her that she was permitted to have a representative with her at the meeting. If it had not done so, it would have effectively ignored the claimant’s right to attend and Ms Malkoc’s right to advocacy, meaning it would have failed to recognise the claimant’s representational capacity.
34 In the circumstances however, the respondent did convey clearly to Ms Malkoc that she was permitted to have a representative with her at the meeting. Ms Malkoc obviously understood this, because she promptly contacted Ms Arntzen.
35 In my view, the respondent telling Ms Malkoc that she was permitted to have a union representative with her at the meeting, in a way that she understood, constituted recognition of the claimant’s representational capacity in the disciplinary matter.
36 In the absence of a provision in the Award specifically requiring service of invitations and the like upon the claimant, or defining “recognition” as including such a requirement, there is no basis upon which to import such a notion into the word “recognise”.
37 To the extent that the proximity of the meeting to the invitation, which admittedly was very short, caused stress to Ms Malkoc and caused Ms Arntzen to make last-minute arrangements to have her child looked after so that she could attend the meeting, none of that was known to the respondent. Neither Ms Malkoc nor Ms Arntzen asked the respondent to re-schedule the meeting due to the difficulties they were experiencing. Effectively, Ms Arntzen scrambled to make things work. The respondent cannot have breached the Award by failing to change the meeting time, when it was not asked to do so.
Alleged contravention (ii)
38 There is a suggestion in the claimant’s case that the respondent breached cl. 36A(6) of the Award in respect of Ms Malkoc.
39 In full, cl. 36A(6) of the Award provides:
The employer accepts a representative can advocate on behalf of the officer at the meeting. For the purposes of this clause only, an advocate may make comments on the process, ask questions, seek clarification of questions put to the officer, seek adjournments to confer with the officer and provide further comments at the conclusion of the interview, but will not answer questions of fact put to the officer.
40 In her statement, Ms Arntzen explained:
I recall that I conveyed to the Justice representatives present at this meeting what I had been instructed to inform them by Mr Claydon … I believe I said something along the lines that I had been instructed to inform them that the CSA was preparing briefing papers for the prosecution of the Department for breaches relating to the representative rights clause in the Award/s.
I remember at some point during this discussion, Mr Wynn spoke over me and it became difficult for me to continue speaking without raising my voice or speaking over him. Exhibit 1, [38]-[39].

41 Ms Malkoc was not a witness in the case, but her notes of the meeting are included as an annexure to Ms Arntzen’s statement. In her notes, Ms Malkoc states:
When you attempted to discuss the further issue in regards to prosecution Trevor spoke over you and wouldn’t let you finish what you were trying to say. Exhibit1, Document 18

42 Mr Trevor Wynn (Mr Wynn) (Director, Western Australian Department of Justice) was not cross-examined on the issue of speaking over Ms Arntzen. However, on the basis of Ms Arntzen’s evidence and the notes of Ms Malkoc which corroborate Ms Arntzen’s account of this part of the meeting, I accept that when Ms Arntzen began to speak about prosecution, Mr Wynn effectively shut her down.
43 It is also apparent from the evidence that shortly after Mr Wynn interjected, the meeting came to an end and no further discussion took place, either on the subject of “prosecution”, or on any other subject. It is also apparent that by this stage, the outcome of the disciplinary process had been conveyed to Ms Malkoc i.e., the purpose of the meeting had been fulfilled.
44 Insofar as the claim includes an allegation that the respondent breached cl. 36A(6) of the Award by not accepting that Ms Arntzen could advocate on behalf of Ms Malkoc, the claim fails.
45 To the extent that Ms Arntzen commented (during the meeting) on the process by noting that the meeting had been arranged at very short notice, and that this had caused considerable stress for Ms Malkoc, she was advocating for Ms Malkoc entirely in a way contemplated by cl. 36A(6) of the Award. If the respondent had been dismissive of those concerns or had sought to stop Ms Arntzen commenting in that way, that might well have constituted a breach.
46 However, the evidence establishes that Mr Wynn only began to speak over Ms Arntzen when she raised the issue of “prosecution”. When Ms Arntzen began to speak on that topic, she was not advocating on behalf of Ms Malkoc; rather, she was conveying a view of her superior that the respondent’s actions had exposed it to legal action.
47 There is a difference between raising concerns about the process, on the one hand, and saying that those concerns are so significant that they provide a basis for potential legal action, on the other. The first is obviously contemplated as part of advocacy in cl. 36A(6) of the Award; the second is properly the subject of separate correspondence that does not concern the employee. I specifically reject any suggestion that it might come within the ability of a representative to ‘provide further comments at the conclusion of the interview’. When read in context, such further comments must be on the subject matter of the meeting, which in this case was the disciplinary matter.
48 In my view, Mr Warwick Claydon (Mr Claydon) (Senior Industrial Officer, CSA) put Ms Arntzen in a difficult position by asking her to convey his view on the appropriateness of legal action in a meeting which properly concerned the outcome of disciplinary action. Nor should he have conveyed his views on this directly to Ms Malkoc in an email, which he did.
This tactic had the potential to increase strife between Ms Malkoc and her employer. It is apparent from all the materials, and would have been apparent to the claimant, that Ms Malkoc already felt aggrieved that she had been the subject of the investigation in the first place. To ask an industrial officer to clearly state in a meeting, in the presence of that employee and her employer, that the claimant also took the view that the employer should be “prosecuted” was unnecessarily inflammatory. Mr Wynn was entirely correct to state to Ms Arntzen that it was inappropriate to continue that discussion in the meeting.
49 In this discussion I have repeatedly put the word “prosecution” in inverted commas. The reason for this is because the legal action Mr Claydon was contemplating, and which has eventuated, is not a prosecution. This Court does have a prosecution jurisdiction, but this claim is not brought, and could never have been brought, within that jurisdiction. Mr Claydon’s use of the word, and its repetition by his staff, was legally wrong and had the potential to inflame a stressful situation for Ms Malkoc, given that “prosecution” carries with it serious connotations that tend not to accompany the word “claim” in the same way.
Alleged contravention (iii)
50 As noted at paragraph 8 of the Statement of Agreed Facts: by letter dated 12 June 2020, Mr Tebbutt notified the respondent that the claimant represented Mr Petrovski in relation to the allegation of breach of discipline pursuant to cl. 36 of the Award.
51 Although there was no direct evidence on the point, I infer that Mr Petrovski nominated the claimant to represent him with respect to the disciplinary matter, and this led to the writing of the letter.
52 Specifically, the letter stated: Exhibit 3, Document 4.

The CSA represents Mr Petrovski in relation to this matter per cl 36 Public Service Award 1992 and s 112A Industrial Relations Act 1979.
53 The letter provided the identity and contact details of the CSA and indicated it was written on behalf of Branch Secretary, Rikki Hendon.
54 In closing, Mr Tebbutt wrote:
If there are any further enquiries, please direct these to me –
but did not include his personal contact details, or those of Ms Hendon.
55 Mr Tebbutt’s letter constituted notification in writing of representation on a matter, as contemplated by cl. 36A(4) of the Award.
56 Consequently, once cl. 36A(4) of the Award came into effect, the respondent was required to recognise the “person’s” representational capacity in all future dealings on that matter; the use of the word “must” in the clause indicating a mandatory action on the part of the employer.
57 For the reasons stated at paragraph [16] above, in my view the word “person” must be capable of referring to an individual or to an organisational “person”.
58 In this case, the easiest way for the respondent to engage with the claimant was by communicating with Mr Tebbutt, as he was the individual industrial officer who was assisting Mr Petrovski.
59 However, there is no evidence that Mr Tebbutt was “engaged” by Mr Petrovski on a personal basis as his representative. In his statement, Mr Tebbutt states that in June 2020, he assisted Mr Petrovski to respond to allegations of breaches of discipline initiated by the respondent. Exhibit 2, [4].
He does not preface this by stating that he had been specifically engaged or appointed as Mr Petrovski’s representative.
60 At paragraph 5 of the statement, Mr Tebbutt said:
On 12 June 2020, I informed the Respondent that the CSA was representing Mr Petrovski in its representative capacity.
61 Under cross-examination at trial, Mr Tebbutt accepted what he had said at paragraph 5, but added:
I believe I represented Mr Petrovski on behalf of the Civil Service Association, but I – I suppose, I'm not too sure on …
and then goes on to state:
I'm not too sure on whether I was, um, the representative on behalf of the Civil Service Association or whether the Civil Service Association itself represented Mr Petrovski. Trial Transcript, p 18-19.

62 In answer to the question, ‘So you were representative in your role as an employee of the CSA, is that right?’, Mr Tebbutt said, ‘I – I think that could be right, yes.’ Trial Transcript, p 19.

63 Although Mr Tebbutt was uncertain as to whether he was a personal representative for Mr Petrovski (albeit as an employee of the CSA), the correspondence which enlivened the respondent’s obligations under cl. 36A(4) of the Award clearly stated that the CSA, and not Mr Tebbutt personally, represented Mr Petrovski with respect to the disciplinary matter. Further, it contained the contact details of the CSA, and not Mr Tebbutt personally.
64 Consequently, I find that the respondent was required to recognise the representational capacity of the claimant, and not Mr Tebbutt personally.
65 On 21 January 2021, the respondent invited Mr Petrovski to a meeting scheduled at 10:30 am on 22 January 2021. The purpose of the meeting was to inform Mr Petrovski of the outcome of the investigation into the alleged disciplinary breaches.
66 The invitation to Mr Petrovski to attend the meeting on 22 January 2021 post-dated Mr Tebbutt’s correspondence informing the respondent that the claimant represented Mr Petrovski in the disciplinary matter and was therefore a “future dealing” on that matter, in which the respondent was required to recognise the claimant’s representational capacity.
67 The respondent did not send the meeting invitation either to the claimant or to Mr Tebbutt.
68 However, the respondent did inform Mr Petrovski that he was permitted to have a union representative with him in the meeting. Exhibit 3, Document 6.

69 In view of the provisions of cl. 36A of the Award identified at paragraph [32] above, and in view of the fact that the respondent had received the correspondence contemplated by cl. 36A(4) of the Award, it stands to reason that when the respondent invited Mr Petrovski to the meeting, it had to convey clearly to him that he was permitted to have a representative with him at the meeting. If it had not done so, it would have effectively ignored the claimant’s right to attend and Mr Petrovski’s right to advocacy, meaning, it would have failed to recognise the claimant’s representational capacity.
70 In the circumstances however, the respondent did convey clearly to Mr Petrovski that he was permitted to have a representative with him at the meeting. Mr Petrovski obviously understood this, because he promptly contacted Mr Tebbutt.
71 In my view, the respondent telling Mr Petrovski that he was permitted to have a union representative with him at the meeting, in a way that he understood, constituted recognition of the claimant’s representational capacity in the disciplinary matter.
72 In the absence of a provision in the Award specifically requiring service of invitations and the like upon the claimant, or defining “recognition” as including such a requirement, there is no basis upon which to import such a notion into the word “recognise”.
73 To the extent that Mr Petrovski appeared panicked and confused that Mr Tebbutt did not know about the meeting, in my view this was likely borne mostly of the time frame between the invitation and the meeting, which admittedly was very short. It is understandable that an employee in that situation would experience stress.
74 To the extent that Mr Tebbutt and Mr Claydon took the view that it was wrong of the respondent to deal directly with its own employee, there is no basis for that view. It must be the case that 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. That is what the respondent did in this case.
75 There is no foundation in the Award for the claimant’s view that once it has representational capacity, all correspondence must go directly to it and never to an individual employee.
Alleged contravention (iv)
76 The claimant alleges that the respondent contravened cl. 36A(4) of the Award in respect of Mr Petrovski by not providing the letter of outcome to Mr Tebbutt prior to the meeting of 22 January 2021.
77 As I have mentioned in the context of the meeting invitations, 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.
78 I observe also that the claimant’s allegation of this particular contravention is inconsistent with its submission that it would have been acceptable for the respondent to simply email the outcome letters to the employees, presumably without service upon the claimant.
79 If the suggestion here is that the existence of the meeting somehow imported a requirement of service of meeting-related documents upon the claimant, there is no foundation in the Award for that submission.
Alleged contravention (v)
80 The claimant alleges that the respondent contravened cl. 36A(5) of the Award in respect of Mr Petrovski by refusing to re-schedule Mr Petrovski’s meeting in view of Mr Tebbutt’s request that the meeting be held the following week.
81 The meeting went ahead at the scheduled time, and Mr Abrahamson of the CSA attended as Mr Petrovski’s representative.
82 The simple answer to this aspect of the claim, in view of the findings I have already made, is that there was no breach of cl. 36A(5) of the Award, because the respondent permitted the representative, that is, the CSA, to attend. It attended in the form of Mr Abrahamson.
83 However, some further observations are warranted, which encompass some comments pertaining to cl. 36A(4) as well as cl. 36A(5) of the Award.
84 Having been contacted by Mr Petrovski, Mr Tebbutt raised concerns with Mr Wynn that he (Mr Tebbutt) had not been contacted about the meeting, and he advised Mr Wynn that he would be unable to attend the meeting as he had other appointments already scheduled.
85 In evidence that I accept, Mr Wynn said that he was initially prepared to re-schedule the meeting, but ultimately declined to do so when it seemed to him that Mr Tebbutt objected not simply to the time and date of the meeting, but to the meeting per se.
86 It is clear on all the evidence that Mr Wynn was entirely correct in concluding that this was not simply a case of difficult timing for Mr Tebbutt, but rather a case of Mr Tebbutt doubting the legitimacy of the meeting altogether.
87 It is not the case that Mr Tebbutt was not permitted to attend the meeting. He conveyed a clear intention not to, even when more convenient times were suggested to him, for two reasons, namely, because in his view:
(i) The respondent had failed to recognise his and/or the claimant’s representative capacity by not telling him directly about the meeting; and
(ii) In any event, a meeting to convey the outcome of a disciplinary investigation was not warranted at all.
88 In Mr Tebbutt’s view, there was a “dispute” about the meeting which needed to be settled before he would consider attending.
89 Although Mr Claydon was not a witness in the case, the documents filed in the case give rise to an irresistible inference that Mr Claydon had leapt immediately to the view that the respondent had breached cl. 36A(4) of the Award by not directly telling Mr Tebbutt (and Ms Arntzen, in the case of Ms Malkoc) about the meetings. This clearly influenced the stance taken by Mr Tebbutt and his view that there was a “dispute” about the meeting’s legitimacy.
90 As I have explained, there is no basis for that view. The Award does not explicitly or implicitly contain a requirement for direct correspondence with an employee’s representative, in order for it to have fulfilled its duty to recognise that representative’s representational capacity.
91 Whether or not an employer covered by the Award has properly recognised a representative’s representational capacity, where it must do so under cl. 36A of the Award, is a matter to be determined in the context of the individual case and with respect to the particular “future dealing” under consideration. In the case of a meeting invitation, there is no requirement to send that invitation to a representative; it is, however, a requirement to tell the employee that he or she is permitted to have a representative present at the meeting.
92 To the extent that the claimant suggests a breach of cl. 36A of the Award by the respondent choosing to schedule a meeting at all to convey the result of a disciplinary investigation to its employee/s, rather than simply telling the representative the outcome, that suggestion is mystifying and has no basis in the Award.
93 In the circumstances, nothing was going to be achieved by the respondent postponing the meeting, other than a fruitless argument with the claimant about the “legitimacy” of the meeting; and additional stress being placed on Mr Petrovski, who needed to know the outcome of the disciplinary matter.
94 Provided the respondent permitted the claimant to attend the meeting, it was not in breach of cl. 36A(5) of the Award. The respondent permitted Mr Abrahamson, a representative of the claimant, to attend, and therefore was not in breach.
Additional Observations
95 I find it disingenuous of the claimant that it takes the position that face-to-face meetings were unnecessary in a case like this. Disingenuous because, on the one hand it brings this claim on the basis that the respondent failed to recognise its representational capacity in the disciplinary proceedings brought against Ms Malkoc and Mr Petrovski, but on the other hand submits that it would have been acceptable for the respondent to deliver its outcomes to the employees by email, with nobody present to assist them.
96 In my view, it is a matter for the employer to determine when it is appropriate to meet face-to-face with an employee about a workplace issue.
97 In a case concerning the outcome of a disciplinary matter, the claimant appears content for its members to receive potentially highly stressful news alone in an office, or at home via email, in circumstances where they could well react adversely without any support. The respondent appropriately recognised the risk to its employees’ mental health in such a scenario.
98 Accordingly, in this case, the meetings went ahead at the scheduled time. In the case of Mr Petrovski, this was not because the respondent was being stubborn and inflexible, but because putting it off would have achieved nothing, other than the outcome not being conveyed to the employee in an appropriate setting and in a timely manner.
Conclusion
99 The claim is dismissed.


E. O’DONNELL
INDUSTRIAL MAGISTRATE