ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute under the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 – dispute concerned the question of whether there is any impediment arising from the agreement to the Metropolitan Fire and Emergency Services Board (MFB) implementing a decision it has made to terminate the employment of a recruit firefighter, Mr Duggan – when the MFB notified Mr Duggan of its intention to terminate his employment, he was within a three month probationary period of employment – case made by the MFB was that Mr Duggan was an unsuitable employee for ongoing employment past the end of a probationary period – during the recruitment process, Mr Duggan was asked to obtain and provide to the MFB a National Police Certificate – certificate provided was sourced from Victoria Police, was dated 16 September 2015 and advised that ‘[a]t the date of issue there are no disclosable court outcomes recorded’ – after commencing employment Mr Duggan was the subject of adverse findings against him by the New South Wales Civil and Administrative Tribunal (NCAT) – NCAT decision concerned Mr Duggan’s practice as an osteopath in New South Wales – complaints by the New South Wales Health Care Complaints Commission (HCCC) of unprofessional conduct and professional misconduct – Mr Duggan had been charged with a number of counts of indecent and sexual assault relating to female patients in 2010 – Mr Duggan was acquitted in the subsequent criminal proceedings in 2012 – matter became the subject of a dispute between the parties, including a formal dispute for the purposes of the agreement notified to the MFB by the United Firefighters’ Union of Australia (UFU) on Mr Duggan’s behalf – Mr Duggan was stood down and required not to report for duty until further notice – MFB decided that Mr Duggan’s employment should be terminated and forwarded him a letter to that effect – exchanges between the UFU and the MFB failed to resolve the matter – Mr Duggan and the UFU (the respondents) put forward that the MFB had failed to follow the proper processes of the agreement insofar as it provided processes for consultation and termination of employment – respondents argued that the MFB was not entitled to terminate for the reasons it had chosen because it failed to consult with them about matters which the respondents say are unilateral alterations to the MFB Recruitment Police Criminal History Check Policy – Commission considered that the proper characterisation of the dispute was: ‘1. whether or not there was a failure by the MFB to follow any process mandated by the Agreement with respect to the termination of Mr Duggan’s employment; 2. whether the dispute the subject of this proceeding is resolved; and 3. whether the decision to terminate the employee’s employment can therefore now be implemented by the MFB’ – necessary to consider whether the MFB followed the processes mandated by the agreement in relation to its intention to dismiss Mr Duggan – evidence did not lead to a finding that the MFB sought to unilaterally amend its Police Check Policy by introducing a new and additional criterion – Commission held that by seeking to terminate Mr Duggan’s employment within his probationary period of employment for events that occurred prior to employment, and which came to its notice after employment had commenced, and which were not reported by Victoria Police in the National Police Certificate it issued, the MFB seeks to depart from the well accepted meanings of ‘probation’ and ‘probationary employee’ – considered that the dispute was not resolved, with there being a need either for consultation over changes to the MFB’s use of ‘probation’ and ‘probationary employee’ or, if that is considered not appropriate, for appropriate action to deal with Mr Duggan’s conduct after employment commenced – threshold issue was whether Mr Duggan’s conduct, at any stage, warranted dismissal – Commission did not consider that it did – found that while perhaps Mr Duggan should not have been employed in the first place, no warrant existed from his pre-employment conduct to dismiss him – held that Mr Duggan’s conduct after employment commenced, in his failure to notify the MFB of the NCAT decision, while not to be condoned was not sufficient to dismiss him, for the reason it did not undermine his suitability for ongoing employment or the viability of continuing the employment relationship – MFB failed to ask pertinent questions of an applicant about matters disclosed to it prior to employment – Mr Duggan’s work as an osteopath was demonstrably professionally unsound – Mr Duggan may not provide any ‘health service’ until such time as a reinstatement order is made by NCAT – Mr Duggan may not perform Emergency Medical Response (EMR) work for the MFB either now or in the future, unless and until the NCAT order is amended or revoked program – Mr Duggan has appealed the NCAT decision, with the hearing set down for 29 September 2016 – MFB submitted that EMR function is a core function of the MFB – held not being available for EMR work would not be a ground for termination of employment during ‘probation’ or as a ‘probationary employee’ – Mr Duggan’s failure to bring the NCAT decision to the MFB’s attention was likely an act to conceal the decision from his new employer – Commission considered that Mr Duggan can and should be sanctioned for failing to have brought the decision and Orders to the MFB’s attention – agreement provides procedures for counselling and discipline (clause 26), and termination of employment (clause 27) – considered it to be appropriate and consistent with the parties’ legal rights and obligations under the agreement for Mr Duggan’s probationary period to be extended for between 3 and 6 months – also considered it to be consistent with the Police Check Policy and appropriate in all the circumstances for Mr Duggan to be formally asked by the MFB to disclose in writing all charges and arrests since turning 18 years of age, whether or not they were withdrawn or he was acquitted, and that he be required to respond to that enquiry by way of a Statutory Declaration – further considered it to be consistent with the agreement and appropriate that Mr Duggan be warned in writing, in the form of a first and final warning, that any future misconduct by him may lead to his dismissal, and that such warning be kept on file for 12 months from the date on which it is issued and acknowledged by Mr Duggan – parties directed to confer on these matters and endeavour to agree to the form and substance of each – in the absence of agreement the matter will be relisted for further hearing. Metropolitan Fire and Emergency Services Board v Duggan and the United Firefighters’ Union of Australia
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