FEDERAL CIRCUIT COURT OF AUSTRALIA
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION v TASMANIAN WATER SEWERAGE CORPORATION PTY LTD	[2015] FCCA 2382	

Catchwords:
INDUSTRIAL LAW – Allegation that the respondent breached dispute settlement procedure in applicable industrial Agreement – whether Agreement properly construed contained a status quo ante clause – whether dispute resolution procedure prevents summary dismissal – whether respondent contravened other aspects of dispute resolution procedure – no status quo ante clause in Agreement – Agreement not contravened – Application dismissed. 	

Legislation:
Fair Work Act 2009, ss.50, 65(5), 76(4), 545
Fair Work Act Regulations 2009	

Amcor v CMFEU (2005) 222 CLR 241
Kucks v CSR Ltd (1996) 66 IR 182
The Australiasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447
United Voice v Foster’s Australia Limited [2014] FWC 4104
Construction, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd [2011] FCA 1020	

Applicant:	COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION	

Respondent:	TASMANIAN WATER SEWERAGE CORPORATION PTY LTD	

File Number:	LNG 1 of 2015	

Judgment of:	Judge Burchardt	

Hearing date:	6 July 2015	

Date of Last Submission:	6 July 2015	

Delivered at:	Melbourne	

Delivered on:	16 September 2015	

REPRESENTATION
Counsel for the Applicant:	Mr Bakri	

Solicitors for the Applicant:	Hall Payne Lawyers	

Counsel for the Respondent:	Mr Barclay	

Solicitors for the Respondent:	Page Seager Lawyers	

ORDERS
(1)	The Application is dismissed. 
(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT melbourne	
LNG 1 of 2015
COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING and allied services union	
Applicant

And

tasmanian water sewerage corporation pty ltd	
Respondent

REASONS FOR JUDGMENT
Introductory
1.	The applicant seeks declaratory relief pursuant to s.545 of the Fair Work Act 2009 (“the Act”).  The declaration sought is that the respondent has contravened s.50 of the Act by contravening cl.52 of the Cradle Mountain Water Enterprise Agreement 2010 (“the Agreement”).  In substance, it is a dispute about the meaning and effect of a dispute resolution process set out in the Agreement.  If a declaration is made, the applicant seeks the imposition of a pecuniary penalty and ancillary relief.
2.	Although it will be necessary to return to the facts in greater detail, put shortly, the applicant asserts that the dismissal of Mr Mark Cottee in December 2014 contravened the Agreement because the respondent failed to take certain steps pursuant to the dispute resolution procedure and did not maintain the status quo until such time as the dispute about his possible termination of employment was concluded.
3.	The respondent says that, contrary to such assertions, the termination of Mr Cottee’s employment did not contravene or in any way infract the terms of the Agreement and was otherwise lawful in any event. 
4.	For the reasons that follow, I have come to a somewhat different conclusion to both of the parties, although I do conclude that the respondent did not contravene the terms of the Agreement.
The Facts
5.	The parties have prepared a Statement of Agreed Facts.  For these purposes, it is sufficient to know that there is no dispute about the applicant’s standing to bring this application. 
6.	Mr Cottee was employed by the respondent from 1 July 2013 to 8 December 2014.  He was first engaged by a predecessor corporation (which merged with the respondent in 2013) on 3 May 2012.
7.	The background to Mr Cottee’s dismissal is referred to in annexure AG-03 to the affidavit of Alexandra Garrott sworn on 2 March 2015 which is tendered by consent.  The matters referred to in that exhibit are expanded somewhat in the written submissions of the respondents as follows at paragraph 12:
	“12.	The findings of fact made by the Respondent are set out in paragraph 30 and onwards of the letter of 26 November 2014 and are that:
	(a) On 14 October 2014, whilst driving a work vehicle in a laneway near the treatment plant, Mr Cottee deliberately accelerated towards 3 ducks striking them with the vehicle, causing the death of 1 of the ducks and injury to 2 others.  The ducks belonged to TasWater customers who had owned land adjacent to the water treatment plant at which Mr Cottee was employed.
	(b) On 2 June 2014, whilst carrying on work duties near the treatment plant Mr Cottee had verbally abused Mr David Fisher (the owner of the adjacent land) by calling him a “silly old cunt” and a “fucking idiot” without provocation.”
8.	Such, apparently, is the dulcet terminology of rural Tasmania.
9.	The letter from Mr Glen Jameson, General Manager–Operations and Maintenance of the respondent, to Mr Cottee, care of Mr Todd Lambert (an officer of the applicant) dated 26 November 2014, part of annexure AG-03 to the affidavit of Ms Garrott sworn on 2 March 2015, clearly follows earlier investigation of the matters said to be proved against Mr Cottee and earlier correspondence (not tendered to the Court) from Mr Lambert to Mr Johnson.  I note that, pursuant to a letter from Jennifer Lennon, HR consultant, to Mr Cottee dated 22 October 2014 (see annexure TEL-2 to the affidavit of Mr Lambert), Mr Cottee had been suspended with full pay on that date until the posited investigation referred to in annexure AG-03 was concluded.
10.	I note that Mr Cottee did not accept the findings made by the investigation against him, apparently (see annexure AG-03 paragraph 30) because he considered it unreasonable for the findings to be based on one person’s statement against another.  Mr Jameson did not agree.  
11.	There are a number of matters to be taken from annexure AG-03.  These include:  
(a)	that the parties were in disagreement about process (see paragraph 1);  
(b)	the respondent did not consider the suspension on pay of Mr Cottee to be disciplinary action (paragraph 2);  
(c)	Mr Jameson retained a number of concerns about Mr Cottee’s possible future conduct should he remain as an employee;  
(d)	Mr Jameson concluded that Mr Cottee had engaged in serious misconduct under the Fair Work Act Regulations 2009; and
(e)	Mr Jameson considered Mr Cottee had breached the respondent’s Code of Conduct.
12.	Having concluded that the breaches were sufficiently serious to warrant the termination of Mr Cottee’s employment, Mr Jameson’s letter went on at paragraphs 42-45 to state:
	“42.	I do not consider that there was any reasonable excuse for Mr Cottee’s behaviour.  I have noted the mitigating factors but consider they are outweighed by the totality of his behaviour which I consider has caused the employment relationship to be broken down.  In particular the trust and confidence between Mr Cottee, Mr Campbell, and Mr Saddington has been completely destroyed.  I also do not consider it appropriate that customers of TasWater continue to be exposed to Mr Cottee given the circumstances of the findings.  Damage to a customer’s property and the highly offensive and derogatory language used towards Mr Fisher have made this relationship unworkable on an ongoing basis.  
	43.	I have decided the employment of Mr Cottee is terminated effective of the date of this letter.  
	44.	Despite my decision that Mr Cottee’s behaviour was sufficiently serious to be considered serious conduct which warrants dismissal, in the interests of all parties moving forward from this situation, I have decided to reduce any impact of the outcome on Mr Cottee by determining that I effect the termination of his employment with a payment in lieu of notice.  
	45.	Mr Cottee’s final payment representing his accrued entitlement to annual leave plus a payment in lieu of notice will be deposited into his nominated account.”
13.	Despite this strong expression of view, Mr Jameson set out under the heading “Alternative Outcome and Penalty” paragraphs 46 and 47:
	“46.	Despite my decision to terminate Mr Cottee’s employment with notice above, I am prepared to consider an alternative outcome to termination of employment for him.  This is only available as an alternative if Mr Cottee specifically accepts the alternative outcome and penalty as set out in Schedule 1 and meaningfully implements behaviours which are capable of rebuilding the employment relationship outside of his immediate work area.  
	47.	Accordingly, if Mr Cottee is prepared to accept the outcome and penalty as set out in Schedule 1 by way of written acceptance I will implement the alternative outcome as of Monday 31 November 2014.”
14.	At paragraphs 49 and 50, the letter continued:
	“49.	If Mr Cottee is not prepared to accept this alternative outcome and penalty his employment will be terminated with notice as advised.  
	50.	I anticipate this will require some consideration and to that end I provide you until pm on Friday 28 November 2014 to provide a response.”
15.	Schedule 1 was a comprehensive set of proposals requiring Mr Cottee to do a number of things (some directly employment-related and others not) and required the CEPU to agree to a media release.
16.	On 1 December 2014, (after Mr Jameson’s deadline of 28 November 2014), Mr Lambert replied (annexure AG-04). This was a letter to Mr Stewart Campbell, which relevantly reads:
	“We refer to clause 52 of the Cradle Mountain Water Enterprise Agreement 2010 which applies to matters pertaining to the employment relationship.  Consistent with that procedure we are raising the matters below with you as Mr Cottee’s immediate supervisor.  We do so to avoid any suggestion by TasWater that the procedure is not being followed, even though we believe it is illogical as those in more senior positions than yourself have made the decisions giving rise to the dispute.”
17.	The letter went on to refer to Mr Jameson’s letter of 26 November 2014 and essentially sought to renegotiate the terms of Schedule 1 to it.  In particular for these purposes, the CEPU refused to be party to a media release.
18.	The letter went on to state:
	“The procedure requires you to make every effort to resolve this matter.  Sub-clause 52(f) provides that whilst the procedure is being conducted, the ‘status quo’ will prevail.  
	The complaint of Mr Cottee is that TasWater is acting unreasonably, inconsistent with its policy and potentially unlawfully in it (sic) management action.”
19.	On 2 December 2014, Ms Garrott sent an email to Mr Lambert, (annexure AG-05).  It took issue with a number of assertions made by Mr Lambert’s earlier letter and, relevantly, asserted:
	“TasWater acknowledges that the CPUs involvement may be problematic.  To that end, we are content to remove Item 8 in Schedule 1.  The remainder of the letter of 26 November and its attachments remains unchanged.  
	Given this amendment we will provide you until 5pm on Wednesday 3rd December to accept our offer.”
20.	On 3 December 2014, Mr Lambert replied to Ms Garrott (annexure AG-06).  The letter read, relevantly:
	“We understand your email to be an effort, on behalf of Mr Cottee’s immediate supervisor, to resolve the dispute properly notified by our letter.”
21.	Leaving aside a number of matters indicated as being in disagreement, the letter went on to state:
	“On the understanding that your email is a response on behalf of Mr Cottee’s immediate supervisor in accordance with clause 52(c)(i) of the Cradle Mountain Water Enterprise Agreement 2010 (“the Procedure”), we are referring the dispute to you as the ‘relevant manager’ in accordance with clause 52(c)(ii) of the Procedure.”
The letter concluded:
	“We look forward to you confirming a suitable meeting time and remind you the status quo regarding this dispute as notified on 1 December 2014 remains.”
22.	On 8 December 2014, Mr Lambert emailed Jennifer Lennon (annexure AG-07).  Relevantly, the email stated:
	“I am still awaiting a response as to today’s agenda, we need to know this as we work through the CMW disputes procedure.”
23.	Having set out the steps already taken (referred to above) the email continued:
	“We are confused as to where we are now in regards to the Dispute Settlement Procedure?  Our understanding is we should be meeting with the relevant manager, please advise who the relevant manager is, Peter Triffitt or Glen Jamison?”
24.	Mr Jameson wrote further to Mr Lambert on 8 December 2014 (annexure AG-08).  Having referred to the correspondence between them, Mr Jameson went on:
	“On 3 December 2014 you, on Mr Cottee’s behalf, continued to dispute TasWater’s ability to offer Mr Cottee an alternative to a termination of his employment.  Consistent with our letter that there would be no consideration of any amendment to our offer, TasWater acknowledges your rejection, on Mr Cottee’s behalf, of our offer.  There is no new or counter offer to your rejection.  TasWater does not consider there is any dispute given there is no longer an offer of an alternative outcome to the termination of Mr Cottee’s employment capable of acceptance.  
	Accordingly, the earlier decision to terminate Mr Cottee’s employment stands.  You are notified, as Mr Cottee’s authorised representative, that Mr Cottee’s employment is terminated as of the date of this letter with immediate effect.  The reasons for TasWater’s decision and the matters we took into consideration are set out in our earlier attached letter.”
25.	I note in passing that I was informed by counsel at the hearing of this matter that Mr Cottee subsequently filed an unfair dismissal application which has been resolved. 
The Terms of the Agreement
26.	I have had regard to the entirety of the Agreement.  The authorities, to which I will come, make it clear that the terms of an Agreement are required to be considered in the context of the Agreement as a whole.  It is certainly a comprehensive calibration of employment related matters governing those within its ambit.
27.	For these purposes however the clauses that appear to be relevant are clauses 49 and 52.  Clause 49 reads:
	“Summary Termination
	(a) The employer may terminate the employment of an employee without notice for serious misconduct.
	(b) In this case, the employee is entitled only to payment worked up to the time of termination, in addition to any accrued leave entitlements otherwise payable.”
28.	Clause 52 relevantly reads:
	“Dispute Settlement Procedure
	(a)This dispute settlement procedure applies to matters pertaining to the employment relationship and the National Employment Standards (NES) as they apply to employees covered by this Agreement (including ss.65(5) and 76(4) of the Fair Work Act 2009 which deal with requests for flexible working arrangements and extending periods of unpaid parental leave).
	(b) The employee has the freedom of choice to appoint or nominate any person, association or organisation to represent them during any stage of a dispute.  If the employee is a union member, they will be represented by their union organiser or delegate through every stage of this procedure unless waived by that employee.  The dispute settlement procedure will not commence until union representation, or other representation of the employee’s choosing is present.  Either party is entitled to a response within 24 hours if representation is unavailable.  The process will not be unreasonably delayed by either party.
	(c) The parties agree to adhere to the following procedure to achieve the prompt resolution of disputes:
	(i) In the event of an employee experiencing a difficulty or concern, the employee should raise the matter with their immediate supervisor, who will make every effort to resolve the matter.
	(ii) If the matter cannot be resolved it will be referred to the relevant manager.
	(iii) If the matter cannot be resolved by the manager, the employee should refer the matter directly to an executive manager, who will discuss and resolve the matter.
	(iv)	If the matter cannot be resolved by the executive manager, the employee should refer the matter directly to the Executive Manager People and Culture, who will discuss and resolve the matter.
	(v) If the matter cannot be resolved by the Executive Manager People and Culture, the employee should refer the matter directly to the CEO, who will discuss and resolve the matter.
	(vi) Where a matter cannot be resolved in accordance with the above, nothing shall prevent either party from referring the matter to Fair Work Australia (FWA).
	(vii) All steps above must be fully exhausted before this referral may occur…
	(f) While the dispute resolution procedure is being conducted, the ‘status quo’ will prevail.  Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.”
The Approach to the Construction of the Agreement 
29.	The parties do not appear to me to have been significantly far apart in the approach the Court should properly take to the construction of the Agreement.  In Amcor v CMFEU (2005) 222 CLR 241 at [30], Gummow, Hayne and Hayden JJ stated:
	“Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.”
30.	Both parties referred to the judgment of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 where Madgwick J held at [182]:
	“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced.  The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind:  they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon.  Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading.  And meanings which avoid inconvenience or injustice may reasonably be strained for.  For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.”
31.	The respondent’s written submissions have referred the Court to a decision of the full bench of the Fair Work Commission in The Australiasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447, which in substance in my view is to the like effect as the authorities already quoted.
Findings as to the Facts
32.	Mr Cottee misconducted himself in June and October 2014 and was suspended on full pay on 22 October 2014 while an investigation into his conduct was undertaken.
33.	On 26 November 2014, Mr Jameson wrote to Mr Lambert.  I note that the position then put by Mr Jameson was that the suspension was not disciplinary action and that the suspension on full pay was not for an indefinite period.
34.	There is no question on any sensible construction of Mr Jameson’s letter that TasWater regarded Mr Cottee’s employment as subsisting while he was suspended with pay.
35.	Mr Jameson’s letter purported to decide at paragraphs 43-45 that Mr Cottee’s employment was terminated effectively from the date of that correspondence, namely 26 November 2014.
36.	Inconsistently with this conclusion however, what counsel for the respondents described as the ‘mercy option’ was put and was available for acceptance until 31 November 2014 (a date subsequently extended).
37.	There appears to be no dispute that Mr Cottee remained suspended with pay until his employment was eventually ended on 8 December 2014.
38.	On 1 December 2014, Mr Lambert wrote to Mr Campbell (annexure TEL-4).  This letter, perhaps slightly disingenuously, did not respond directly to Mr Jameson.  As earlier noted, it purported to bring into play clause 52 of the Agreement, Mr Campbell being, apparently, Mr Cottee’s immediate supervisor.  The letter also referred to subclause 52(f), being the subclause noted as the status quo provision.
39.	On 2 December 2014, Ms Garrott responded to Mr Lambert’s letter.  The response disagreed with the contentions set out in Mr Lambert’s letter and revised the mercy option by removing the requirement for the joint press release.
40.	Mr Lambert’s response, dated 3 December 2014, was attached to an email, (TEL-7) referring to the “the Mark Cottee dispute” and described the email as “an effort, on behalf of Mr Cottee’s immediate supervisor, to resolve the dispute properly notified by letter”.
41.	Subsequently, Mr Lambert, as earlier noted, wrote to Jennifer Lennon (TEL-8) setting out his confusion as to where the parties were in the disputes procedure.  According to that correspondence Mr Lambert regarded the parties as being at subclause 52(c)(i) of the procedure.  
42.	It is not entirely clear whether a meeting, in fact, took place on 8 December 2014, but on any view of the matter on that date Mr Jameson wrote to Mr Lambert, as earlier indicated, terminating the employment.  The decision was described as “the earlier decision to terminate Mr Cottee’s employment stands”.  
The applicant’s assertions about the respondent’s conduct  
43.	The applicant’s written and oral submissions focus upon, in the first instance, on whether clause 52(f) was a status quo ante clause and whether it was contravened.  It was further put that the respondent contravened subclauses 52(c)(iii), (iv) and (v) by failing to permit the referral of the dispute up the managerial chain.  Particular reliance was placed upon the decision of the Full Bench of the Fair Work Commission in United Voice v Foster’s Australia Limited [2014] FWC 4104 in this regard. 
44.	It should be noted that the words of the status quo provision in that Agreement was very similar to the Agreement in this case.  The operative part of the decision at [29] reads:
	“We’re inclined to the view that the “status quo” provision in Appendix C, applying the ordinary meaning of the expression, would, read in isolation, operate to stay the implementation of any workplace change that is put into dispute before it is implemented pending the completion of the various steps set out in Process (a) of Appendix C to resolve disputes.  We note that clause (iv) of Process (a) provides that the process “should” be completed within five workings days, so the result of this approach could not be regarded as so oppressive to the employer as not to be intended.”
45.	Notwithstanding the similarity in wording, not only is the wording of the Agreement not identical insofar as the Agreement has no such time limitation on the dispute resolution process, the particular dispute before the Full Bench of the Commission concerned staffing levels and an order made by a Deputy President of the Commission to stop industrial action.
46.	It is immediately apparent that this dispute is radically different in its character.  It is not a dispute about workplace change in a broad sense, but a dispute about the termination of an individual employee, although I accept that on one view workplace change might include the dismissal of an employee.
47.	In oral submissions, counsel for the applicant emphasised that there was no response to Mr Lambert’s letter of 8 December 2014 seeking to establish where the parties were in respect of the dispute settling procedure.  Rather, there was a meeting the same day and Mr Cottee was dismissed.  It was submitted that this was a refusal to engage with the dispute resolution process.
48.	The primary contention advanced by the applicant, however, was that subclause 52(f) was a status quo ante clause and it was incumbent, therefore, upon the respondent to keep Mr Cottee in his employment until the disciplinary process was completed.
The Submissions of the Respondent
49.	The respondent emphasised the terms of clause 49 of the Agreement which give, on its face, the employer a right to dismiss summarily for misconduct.  It was submitted that the offer of the mercy option was not open to negotiation (something plainly untrue, because the respondent ultimately withdrew the requirement for a joint media statement). 
50.	The respondent submitted that the dispute related to certain items of the mercy option.  It was submitted that the net effect of the applicant’s position would be (see paragraph 31, written submissions) that any matter at all could be referred to the disputes procedure and that the employer would be prevented from taking any action until the matter passed through each step in clause 52(c).  It was further submitted that Mr Cottee was not covered by the Agreement on 8 December 2014 because he was no longer an employee.
51.	It was further submitted that the steps in subclauses 52(c)(iii) to (v) are only engaged in the event that the employee seeks the necessary referral and that this had not happened here.  
Consideration
52.	Despite the skilful, albeit economical, submissions of both counsel, I have not sought to traverse their assertions in any great detail.  It may be that there are some aspects of the submissions put that I have not recited in these Reasons for Judgment.  Nonetheless, I have come to clear views about this matter and it is appropriate for me to set them out. 
53.	It is clear (see, for example, the decision of Tracey J in Construction, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Thiess Pty Ltd [2011] FCA 1020) that some Agreements have what would be described as clear status quo ante provisions.  In that case, the relevant phrase was “status quo shall remain (as it was prior to the matter in dispute)”.
54.	The phrase in subclause 52(f), in this instance, was “while the dispute resolution procedure is being conducted, the ‘status quo’ will prevail”.  
55.	In the particular circumstances of this case, that must mean that the situation, as it was when the dispute first arose, must be preserved. 
56.	The first time a dispute could be said on any view of the matter to have arisen to which clause 52 of the Agreement might apply, was the letter of 1 December 2014 sent by Mr Lambert.  At that time, Mr Cottee was suspended on full pay (as he had been since October 2014).  His employment had been the subject of the letter from Mr Jameson, which informed him that his employment would be terminated but he was given the mercy option. 
57.	The mercy option had been put with a time limit and in terms that did not permit negotiation.  
58.	It is apparent, in my view, that if the employment had been ceased without the mercy option, there would have been no work for the dispute settlement procedure to do.  Mr Cottee would no longer have been an employee and the dispute settlement procedure “applies to matters pertaining to the employment relationship”.  In my view, this could not sensibly be said to apply to somebody who was not an employee. 
59.	But the fact is that Mr Cottee was an employee as at 1 December 2014.  
60.	I do not think that the respondent contravened the terms of clause 52(f) by, in the ultimate, not continuing the mercy option and terminating Mr Cottee’s employment.  The status quo, as at the date of the creation of the dispute, was that Mr Cottee’s employment would be terminated unless the mercy option was accepted.  It was not accepted and his employment was terminated.  This was the status quo.
61.	Given that the employer retains the right pursuant to the Agreement to summarily dismiss, the apparent freezing of such a decision by the dispute settlement procedure is, in any event, counterintuitive.  It is easy to contemplate circumstances where the employer might seek to terminate the employment of an employee for serious misconduct, such as an assault.  In my opinion, it would be contrary to commonsense and good industrial practice that an employee whom an employer intended to dismiss, for example, for assault upon a supervisor, could have that process brought to a standstill for a protracted period of time by the dispute settlement procedure and its sequelae in the Fair Work Commission.  In my view, the summary dismissal power would remain outside this process. 
62.	That, however, is not the only aspect of the matter.  The applicant claims that the respondent failed to engage with the matters in clause 52(c). 
63.	It is clear that Mr Lambert’s letter to Mr Campbell purported to be – and in my opinion was – an endeavour to achieve the prompt resolution of a dispute as to whether or not Mr Cottee’s employment could continue with the mercy option adapted in some way.  There is no evidence that Mr Campbell made any effort to resolve the matter as sought.
64.	Nonetheless, and looking at the matter beneficently for the respondents, one might say that the involvement of Ms Garrott took place pursuant to subclause 52(c)(ii), she being the next relevant manager. 
65.	The matter, plainly, was not resolved by Ms Garrott but there is no evidence that the employee referred the matter directly to the executive manager (52(c)(iii) or otherwise in accordance with clause 52(c)(iv) and (v).
66.	It is apparent from the decisions to which I have been referred that these sort of dispute settling procedures vary significantly.  Some have one procedure for an employer and then another for an employee.  This one has a combined procedure but it is clear from the terms of clause 52C(iii) to (v) that it is only the employee who takes the matter further pursuant to the Agreement.  
67.	How the Agreement will operate will depend very much upon the particular facts of the dispute that actually occurs.  In the particular circumstances of this case, I do not think that the employer failed to engage with clause 52C(iii) to (v) as the applicant alleges because the employer was never requested to.  At most, Mr Lambert’s letter expressed confusion as to where the parties were in the disciplinary procedure. 
68.	This dispute has some measure of unreality.  It is clear that both parties took a very formal and legalistic approach to their positions during the dispute.  The employer moved promptly and determinedly along the line of termination of employment, which it considered itself entitled to do, and the employee, through his union, sought to drag the matter back through the mechanics of the dispute resolution procedure. 
69.	In summary, I think Mr Cottee was still an employee of the respondent up until 8 December 2012, contrary to the respondent’s submissions.  
70.	I do not think between the particular circumstances that the employer was prevented by clause 52(f) from proceeding to dismiss Mr Cottee from his employment.  A mercy option had been put and it expired, that was the status quo. 
71.	While it is clear that there was ongoing disagreement between the parties as to what should happen to Mr Cottee, the engagement by the applicant with the dispute resolution procedure appears to be regarded by the parties to have sufficiently followed clause 52(c)(i) and (ii) (no submission was made to the contrary by the applicant). I am not so sure myself that this is correct.  There is no evidence whatever that Mr Campbell did anything to discharge his responsibilities under clause 52(c)(i).  Once the dispute was raised, it was, in my view, capable of being referred to the procedure because it was a dispute about what, in effect, was an offer of continuing employment. Nonetheless, as the parties have not conducted the proceeding on the basis of alleged contravention of clause 52(c)(i) or (ii), it is not necessary for me to express a concluded view on this aspect of the matter.
72.	For the reasons given there was no contravention of clause 52(c)(iii) to (v).  
Conclusion
73.	In all the circumstances, in my view, the applicant has not established the relevant contraventions asserted and the application will, therefore, be dismissed.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:  

Date: 16 September 2015