Federal Court of Australia

Avard v Australian Capital Territory [2025] FCAFC 72

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed 2 April 2025 is dismissed.

2.    The appeal is dismissed.

3.    If any party wishes to seek an order as to costs:

(a)    That party is to file written submissions of not more than three pages in support of the order that it seeks, together with any evidence on which it wishes to rely, by 5 June 2025; and

(b)    The other party is to file written submissions in response of no more than three pages, together with any evidence on which it wishes to rely, by 19 June 2025; and

(c)    The question of costs will be dealt with on the papers unless it appears that an oral hearing is necessary

4.    If no submission is filed in accordance with Order 3, there will be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

introduction

1    This appeal raises a narrow point of construction regarding the content of the requirement of procedural fairness in cl 111 of the ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021 (2021 Agreement) and cl 117 of the ACT Public Sector Medical Practitioners Enterprise Agreement 2021-2022 (2022 Agreement). Those clauses, which are in substantially equivalent terms, concern the “preliminary assessment” of an allegation of inappropriate behaviour or misconduct against an employee to whom the 2021 or 2022 Agreement applies.

2    The appellant, Dr Bronwyn Avard (Dr Avard), is an intensive care specialist doctor. In 2015, she was appointed to the role of Clinical Director of the Intensive Care Unit at Canberra Hospital. On 3 November 2021, Dr Avard lodged four staff incident reports through the Canberra Health Service (CHS) health and safety incident reporting system. The reports concerned four separate incidents occurring at the workplace on various dates between 20 October and 31 October 2021. Three of those incidents were medical and the fourth involved an interaction between Dr Avard and another employee.

3    There followed a series of decisions and actions by senior officers in the CHS, commencing with Dr Avard being directed to attend an independent medical examination and resulting in her being transferred to a non-ICU role at another hospital. Those actions included three letters from the CHS dated 14 January 2022, 17 June 2022 and 13 July 2022 wherein Dr Avard was advised of the outcome of separate preliminary assessments of allegations of misconduct against her (outcome letters). In each case, the outcome was the referral of the allegations of misconduct for investigation. On each occasion, Dr Avard was neither given prior notice of the allegations or that an investigation was being considered, nor an opportunity to respond to the allegations or be heard as to whether that investigation should occur.

4    Dr Avard commenced proceedings, relevantly claiming that the failure to give her an opportunity to respond to the allegations prior to the commencement of each investigation comprised a denial of procedural fairness in contravention of cl 111 or cl 117 and s 50 of the Fair Work Act 2009 (Cth) (Act). The primary judge dismissed those claims on the basis that the reference to the “rules of procedural fairness” in cl 111 and cl 117 should be regarded “as acknowledging that those rules would need to be complied with before any substantive action is taken against an employee for misconduct” under the Agreements or, alternatively, as “aspirational”.

5    Dr Avard appeals from the judgment on the following grounds:

1    The primary judge erred in construing clause 111 of the 2021 Agreement, and clause 117 of the 2022 Agreement, as:

(a)     Not imposing the principles of procedural fairness; and (or in the alternative);

(b)    Not requiring the Appellant to be given an opportunity to respond to allegations against her prior to the commencement of a misconduct investigation against her.

2    The primary judge erred in dismissing the Appellant’s allegations that the Respondent contravened s 50 of the Act by not giving the Appellant an opportunity to respond to the allegations against her prior to the commencement of misconduct investigations against her in January 2022, June 2022 and/or July 2022.

agreements

6    A “preliminary assessment” is one of a series of procedures contained in Section N of the Agreements for “managing workplace behaviours that do not meet expected standards, including the management of cases of unsatisfactory work performance and misconduct”: 2022 Agreement, cl 116.2; 2021 Agreement, cl 110.2. We set out below an overview of the relevant provisions in the 2022 Agreement with reference to the counterpart clauses in the 2021 Agreement. The minor differences in language between the corresponding clauses are of no consequence.

7    Clause 116.3 of the 2022 Agreement (cl 110.3 of the 2021 Agreement) says of Section N that:

These procedures for managing workplace behaviours and values promote the values and general principles of the [ACT Public Sector] as set out in Division 2.1 of the [Public Sector Management Act 1994 (ACT)] and account for the principles of natural justice and procedural fairness.

Preliminary Assessment

8    The “preliminary assessment” of alleged inappropriate behaviour or misconduct is dealt with in cl 117 of the 2022 Agreement and cl 111 of the 2021 Agreement. Where such an allegation is made “the appropriate manager or supervisor must undertake an assessment to determine whether the matter can be resolved or whether further action is required”: 2022 Agreement, cl 117.1; see also 2021 Agreement, cl 111.1. The manager or supervisor may seek advice from an appropriate human resources adviser but is responsible for undertaking the assessment unless an actual or perceived conflict of interest exists: 2022 Agreement, cl 117.2; 2021 Agreement, cl 111.2.

9    Clause 117.3 of the 2022 Agreement (see also cl 111.3 of the 2021 Agreement) provides that:

The assessment must be done in an expedient manner and generally be limited to having discussions (either verbal or written) about the allegation or incident, with relevant employees, and, if requested, their representatives.

[emphasis added]

10    Clause 117.4 of the 2022 Agreement (see also cl 111.4 of the 2021 Agreement) takes on some significance in the appeal. It provides as follows:

Although the principles of procedural fairness apply, this assessment is not a formal investigation (as this may occur after the assessment is undertaken) and is designed to enable a manager or supervisor to quickly determine whether formal investigation or other action is needed or not to resolve the issues. The manager or supervisor must communicate the outcomes to relevant employees and their representatives if any.

[emphasis added]

11    While the manager or supervisor is responsible for undertaking a preliminary assessment, they are not empowered to determine whether an investigation into the matter should occur, nor are they empowered to conduct any such investigation. If the manager or supervisor determines that the allegations require investigation, cl 117.5 of the 2022 Agreement requires that a recommendation to that effect is made to the head of service: see also 2021 Agreement, cl 111.5.

Dealing with allegations of misconduct

12    Upon becoming aware of an allegation of misconduct, the head of service must determine whether the matter needs to be investigated: 2022 Agreement, cl 121.1; 2021 Agreement, cl 115.1. The head of service may determine that no investigation is necessary where the employee admits to the alleged misconduct and the employee agrees that there is no need for an investigation: 2022 Agreement, cl 117.6 and cl 121.4; 2021 Agreement, cl 111.6 and cl 115.4.

13    At any stage of dealing with alleged misconduct the head of service may transfer the employee to other duties; reallocate duties away from the employee; suspend the employee with pay; or suspend the employee without pay where serious misconduct is alleged: 2022 Agreement, cl 121.2 and cl 122; 2021 Agreement, cl 115.2 and cl 116.

14    It is not the head of service who conducts an investigation. Where the head of service determines that investigation is required, the head of service must refer the matter to the Public Sector Standards Commissioner for investigation: 2022 Agreement, cl 121.1; 2021 Agreement, cl 115.1. Upon receiving such a referral, the Commissioner must either make arrangements for an appropriately trained or experienced person (the investigating officer) to investigate the alleged misconduct or may decide that an investigation will not resolve the matter and refer it back to the head of service for resolution or further consideration: 2022 Agreement, cl 121.3; 2021 Agreement, cl 115.3.

Investigations

15    There are, in the words of senior counsel for the appellant, “elaborate procedures” for procedural fairness as part of the investigation of an allegation of misconduct. Chief amongst these is cl 123.2 of the 2022 Agreement (see also cl 117.2 of the 2021 Agreement) which provides as follows:

123.2.     The investigating officer must do all of the following:

123.2.1.     inform the employee in writing of the particulars of the alleged misconduct, and details concerning the instigative process;

123.2.2.     give the employee a reasonable opportunity to respond to allegations, which the employee may do in writing or at a scheduled interview or in a different manner as agreed with the investigating officer, before making a finding of fact;

123.2.3.     for written responses provide the timeframe for response which must be reasonable under the circumstances;

123.2.4.     if the response includes an interview provide the employee with at least twenty four hours written notice prior to conducting an interview, and advise the employee if the interview is to be recorded electronically;

123.2.5.     advise the employee that the employee may have a second person present during the interview, who may be the employee’s union representative or other individual acting as a support person and must allow reasonable opportunity for this to be arranged;

123.2.6.     provide a record of the interview to the employee;

123.2.7.     give the employee an opportunity to supplement the record of an interview with a written submission, if the employee so chooses;

123.2.8.     as soon as practicable take any further steps considered necessary to establish the facts of the allegations;

123.2.9.     provide a written report to the Public Sector Standards Commissioner setting out the investigating officer’s findings of fact.

16    Fact finding by the investigating officer must be on the balance of probabilities: 2022 Agreement, cl 123.4; 2021 Agreement, cl 117.4.

17    If the employee fails to, or chooses not to, respond to the allegations in accordance with cl 123.2 of the 2022 Agreement (cl 117.2 of the 2021 Agreement) within a reasonable timeframe, the investigating officer must prepare the report and set out the findings of fact, on the balance of probabilities, on the information available: 2022 Agreement, cl 123.3 and cl 123.4; 2021 Agreement, cl 117.3 and cl 117.4.

Findings of misconduct

18    After considering the report from the investigating officer, the Commissioner must make a proposed determination on the balance of probabilities, as to whether misconduct has occurred: 2022 Agreement, cl 124.1; 2021 Agreement, cl 118.1.

19    If the Commissioner makes a proposed determination of misconduct, cl 124.3 of the 2022 Agreement (see also cl 118.3 of the 2021 Agreement) provides that the Commissioner must do all of the following:

124.3.1.     advise the employee in writing of the proposed determination that misconduct has been found to have occurred;

124.3.2.     provide written reasons for arriving at this proposed determination;

124.3.3.     provide a copy of the investigation report unless this would be inappropriate in the circumstances;

124.3.4.     advise the employee of the period during which the employee has to respond to the proposed determination that misconduct has occurred. This period must be no less than fourteen calendar days.

20    After considering the employee’s response or, if the employee has not responded, at any time after the prescribed period has lapsed, the Commissioner must make a final determination as to whether misconduct has occurred: 2022 Agreement, cl 124.4; 2021 Agreement, cl 118.4. The Commissioner must inform the employee in writing of the final determination and, if the determination is that misconduct has occurred refer the matter to the head of service for consideration of whether disciplinary action is to be taken and inform the employee of that referral: 2022 Agreement, cl 124.4.1; 2021 Agreement, cl 118.4.1.

threshold issue

21    During the hearing, the respondent (the ACT) submitted that Dr Avard raised new matters on appeal. The parties were provided with a further opportunity to address this question. In supplementary submissions, Dr Avard identifies the “essential issue” before the primary judge as being whether the ACT breached the Agreements by not providing her with an opportunity to be heard during the three preliminary assessments that were conducted, and prior to any investigations being commenced. As characterised by Dr Avard, the case that she ran below was that the Agreements imposed an obligation on the respondent to provide her with this opportunity to be heard before a formal investigation was commenced. The real question for determination, it is said, was simply whether procedural fairness was required prior to a formal investigation commencing. Dr Avard contended during oral submissions, and again in supplementary written submissions, that “the debate about the ‘preliminary assessment’ stage became, as a matter of reality, about the steps involved by the manager/supervisor (cl 111.4/117.4), the head of service (cl 111.6-.7/117.6-.7) and the Public Standards Commissioner (cl 115.3/121.3), prior to the decision to commence the formal investigation”.

22    The ACT contends in supplementary written submissions that this is at odds with Dr Avard’s case at first instance, which was confined to whether the respondent contravened cl 117.4 of the 2022 Agreement and cl 111.4 of the 2021 Agreement by failing to provide Dr Avard with opportunities to respond to the allegations against her as part of the preliminary assessment process under those clauses. It is said that Dr Avard’s characterisation of the case run below has drifted to a more general one of whether procedural fairness was required prior to a formal investigation commencing. It is submitted that Dr Avard should be limited to the more confined claim, albeit that the ACT appears to recognise that the primary judge assumed that the claimed content of procedural fairness was for Dr Avard to be notified that a formal investigation was being considered and given an opportunity to be heard as to whether that should occur.

23    Dr Avard disputes that her case at first instance was so confined but, in the alternative, seeks leave to raise the following new arguments on appeal:

(a)    On a proper interpretation of the Agreements, procedural fairness required the appellant to be given an opportunity to be heard prior to a decision being made to commence a formal investigation; and/or

(b)    Further, or in the alternative, on a proper interpretation of cl 111 and cl 117, procedural fairness required the appellant be given an opportunity to be heard during the preliminary assessment stage.

24    We find that Dr Avard’s case below was confined to a breach by the respondent of cl 111.4 and cl 117.4 by failing to provide, as part of the preliminary assessment process described in those clauses, an opportunity for Dr Avard to be heard. Given our conclusion on the appeal that there is no such obligation in cl 111.4 or cl 117.4, it is not necessary to decide the confines of the claim by Dr Avard at first instance as to the content of the requirement of procedural fairness. That is, whether Dr Avard’s claim was that procedural fairness required that she be given an opportunity to respond to the allegations or, alternatively, was limited to Dr Avard being notified that a formal investigation was being considered and given an opportunity to be heard as to whether this should occur.

25    We are not prepared to grant Dr Avard leave to advance a new argument on appeal. The reasons for this are as follows.

The confines of the appellant’s case below

26    The primary judge described the “procedural fairness” issue for determination as follows:

…Three breaches of s 50 are alleged by Dr Avard. They are in essence the same. On each occasion when a decision was made to commence an investigation into possible misconduct by Dr Avard, the applicable enterprise agreement required a “preliminary assessment” to occur before the decision was made. On each occasion, the process that was followed did not include notifying Dr Avard that a formal investigation was being considered and hearing from her as to whether that should occur. That, it is said, constituted a failure to provide procedural fairness and therefore a contravention of cl 111 of the 2021 Agreement or cl 117 of the 2022 Agreement (which are relevantly in the same terms).

27    Dr Avard contends that although the primary judge referred to cl 111 and cl 117, the real question for determination was simply whether procedural fairness was required prior to a formal investigation commencing and that this is reflected in the pleadings. This contention does not withstand scrutiny.

28    The primary judge’s characterisation of Dr Avard’s case materially accords with her pleading. In each case, the amended statement of claim identifies cl 111.4 of the 2021 Agreement or cl 117.4 of the 2022 Agreement as the source of any obligation of procedural fairness and the basis for its breach. The allegations can be summarised as follows:

(a)    Before commencing each investigation, the respondent was required to undertake a preliminary assessment to determine whether the matter could be resolved or further action was required;

(b)    The principles of procedural fairness applied to the preliminary assessment and required Dr Avard to be given an opportunity to respond to allegations against her prior to commencement of the investigation; and

(c)    Dr Avard was not given an opportunity to respond to the allegations against her prior to commencement of each investigation in contravention of cl 117.4 of the 2022 Agreement and s 50 of the Act.

29    It may be accepted that the pleadings refer to “an opportunity to respond to allegations against [Dr Avard] prior to the commencement” of each of the investigations. But the pleaded contravention is of cl 111.4 of the 2021 Agreement or cl 117.4 of the 2022 Agreement. That is relevant because as appears from the overview set out at [6] to [20] above, there are additional steps prior to commencement of an investigation that are not contained in cl 111 and cl 117.

30    Those additional steps include the head of service determining whether the matter requires investigation and, if so, referring it to the Commissioner and the Commissioner, upon receiving a referral either making arrangement for an investigation or referring it back to the head of service for resolution or further consideration: 2022 Agreement, cl 121.1 and cl 121.3; 2021 Agreement, cl 115.1 and cl 115.3.

31    Viewed in that context, the pleading cannot sensibly be understood as encapsulating each of the steps that must occur before an investigation is commenced. To the contrary, the case articulated in the further amended statement of claim is properly understood as being confined to the assessment by the manager or supervisor under the process identified in cl 111.4 or cl 117.4 to recommend to the head of service that the matter be investigated.

32    Dr Avard further contends that, irrespective of the further amended statement of claim, the case was conducted below on the basis that procedural fairness was required prior to a formal investigation commencing. Dr Avard relies, in that regard, on aspects of the evidence, the parties’ written and oral submissions and the observation by Dawson J in Banque Commercial SA (In liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 at 296-297 that “if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which [embraces] the real controversy between the parties … cases are determined on the evidence, not the pleadings”.

33    As appears from the overview of the Agreements, Section N envisages that separate individuals are involved in the steps leading from an allegation of misconduct being made to the commencement of a formal investigation: a manager/supervisor, the head of service and the Commissioner. But the outcome letters, which were before the primary judge, were on each occasion from a single individual within the CHS and refer to the fact of the allegation of misconduct, its preliminary assessment and the intended referral of the matter for formal investigation. By way of example, the outcome letter dated 14 January 2022 from the Chief Operating Officer of the CHS stated:

Concerns have been raised relating to your employment that required CHS to conduct a preliminary assessment which was conducted in accordance with Section N, clause 117 of the [2022 Agreement].

Based on review of the available facts on this matter, and the expectations of senior leaders in completing their duties, a formal investigation is an appropriate next step.

34    It may be accepted that such evidence left open a broader case, namely that procedural fairness was required prior to a formal investigation commencing. The outcome letters indicate that Dr Avard was notified at the same time of not only the outcome of the preliminary assessment but also the decision by the head of service that the matter requires investigation and (possibly) the decision by the Commissioner to investigate the matter: 2022 Agreement, cl 121.1 and cl 121.3; 2021 Agreement, cl 115.1 and cl 115.3.

35    The difficulty is that was not the case run by Dr Avard at first instance. We have reviewed the written and oral submissions before the primary judge upon which Dr Avard now relies. The submissions’ articulation of the case is consistent with that identified by the primary judge in the extract at [26] above. This includes Dr Avard’s written closing submissions, which identify the “critical issue in this case” as being “whether the requirement for ‘procedural fairness’ referred to in cl 111.4 of the 2021 Agreement and cl 117.4 of the 2022 Agreement required an opportunity to be heard, or indeed anything more than simply the outcome being communicated to Dr Avard (as the ACT contends)”.

36    It follows that we do not accept that the “essential issue” before the primary judge was whether the ACT breached the Agreements by failing to provide Dr Avard with an opportunity to be heard before a formal investigation was commenced. Rather, it was whether cl 111.4 and cl 117.4 required Dr Avard to be given an opportunity to be heard as part of the “preliminary assessment” described in those clauses. As indicated at [24] above, given our conclusion on the appeal that there was no obligation in cl 111.4 or cl 117.4 to give Dr Avard an opportunity to be heard, it is not necessary to decide whether Dr Avard’s case was confined to the content of procedural fairness claimed in the further amended statement of claim (ie, an opportunity for Dr Avard to respond to the allegations) or that stated by the primary judge as extracted at [26] above (ie, notifying Dr Avard that a formal investigation was being considered and hearing from her as to whether that should occur).

Should leave be granted to raise new arguments?

37    There remains the question of whether leave should be granted to run the arguments identified at [23] above. We cannot discern any meaningful difference between the said “new argument” identified at [23(b)] and the controversy decided by the primary judge as summarised at [26] above. The only material step towards a formal investigation prescribed by cl 111 and cl 117 is the recommendation by the manager/supervisor to the head of service that the matter be investigated: 2022 Agreement, cl 117.5; 2021 Agreement, cl 111.5. Given that, the only matter about which Dr Avard could be given an opportunity to be heard is whether a formal investigation into the allegations should be held. As such, we confine our consideration of leave to the new argument identified at [23(a)] above.

38    Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [46] (Kiefel, Weinberg and Stone JJ) citing O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33; H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348; and Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [20]-[24] and [38].

39    In VUAX, Kiefel, Weinberg and Stone JJ observed at [48]:

… The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

[emphasis added]

40    The ACT opposes the grant of leave on the grounds of prejudice. The ACT says that it may have led different evidence, pursued different or alternative cross-examination, or made different strategic decisions had Dr Avard pursued a wider case below. Of present relevance, the ACT specifically mentions the possibility of leading evidence or pursuing cross-examination regarding the involvement of the Commissioner, communications with the proposed investigating officers and compliance with cl 121 of the 2022 Agreement (cl 115 of the 2021 Agreement) prior to the appointment of investigation officers.

41    Dr Avard rejects the contention that the ACT may have conducted itself differently at trial because “the same person…wore the hat of manager/supervisor and head of service when conducting the preliminary assessments” (original emphasis). That submission is not an answer to the prejudice identified by the ACT because it ignores that it is the Commissioner who is responsible for making arrangements for a formal investigation or deciding to refer the matter back to the head of service if the investigation will not resolve the matter: 2022 Agreement, cl 121.3; 2021 Agreement, cl 115.3. In the face of the ACT’s submission, the possibility that it may have led evidence, or pursued cross-examination regarding other steps taken prior to the commencement of each of the formal investigations against Dr Avard cannot be ruled out.

42    In the absence of an explanation for the failure to advance the new argument identified at [23(a)] above at first instance, and given the potential for prejudice identified by the ACT, we do not consider it to be in the interests of justice to allow Dr Avard to raise the argument on appeal. As such, we refuse the interlocutory application.

disposition of the appeal

Relevant principles

43    There is no obligation of procedural fairness understood by “the general law of the employment contract”: Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 at 443 per McHugh and Gummow JJ. Any such requirement must, instead, be found in the terms of an enterprise agreement. Section 50 of the Act, which states that a “person must not contravene a term of an enterprise agreement”, provides for the enforcement of such a term by giving it statutory force: Toyota Motor Corporation Australia Ltd v Marmara (2014) 222 FCR 152; [2014] FCAFC 84 at [89] per the Full Court.

Construction of an enterprise agreement

44    The principles relevant to the interpretation of an enterprise agreement were helpfully summarised by Griffiths and SC Derrington JJ in James Cook University v Ridd (2020) 278 FCR 566; [2020] FCAFC 123 as follows:

65     The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:

(i)    The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).

(ii)    A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] 66 IR 182, 184; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [2]).

(iii)    Context is not confined to the words of the instrument surrounding the expression to be construed (City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [53]). It may extend to “… the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1993] FCA 72; 82 FCR 175, 178).

(iv)    Context may include “… ideas that gave rise to an expression in a document from which it has been taken” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).

(v)    Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form…” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511, 518).

(vi)    A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499, 503-4; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [57]), but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties” (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 380).

(vii)    Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362, 378-9; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [197]).

45    These principles were restated recently by a Full Court in Corporate Air Charter Pty Ltd v Australian Federation of Air Pilots [2025] FCAFC 45 at [8]-[12] per Logan, Dowling and McDonald JJ.

Procedural fairness

46    The expression “procedural fairness” conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case: Kioa v West (1985) 159 CLR 550; [1985] HCA 81 at 585 per Mason J; see also at 563 per Gibbs CJ; 495 per Wilson J and 612-613 per Brennan J. Those circumstances will include the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Kioa at 584-585 per Mason J.

47    An essential requirement of procedural fairness is that the person concerned have a reasonable opportunity to present their case: Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 per Tucker LJ; see also Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 at [82] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 293 at 590-591 per Northrop, Miles and French JJ. That said, as Gleeson CJ observed in Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]:

… Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

48    Thus, “where a decision-making process involves different steps or stages before a final decision is made, the requirements of procedural fairness are satisfied ‘if the decision-making process, viewed in its entirety, entails procedural fairness’”: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at 578 per Mason CJ, Dawson, Toohey and Gaudron JJ.

49    By way of example, in Cornall v AB (a solicitor) [1995] 1 VR 372, the Court of Appeal held that there was “little practical merit” in providing an opportunity to be heard before a decision-maker whose function was confined to satisfaction as to the facts sufficient to form a prima facie case. That was because the decision maker was “not essentially the fact-finding tribunal”: at 396.

50    In contrast, in Byrne v Marles (2008) 19 VR 612, Nettle JA (with whom Dodds-Streeton JA and Coghlan AJA agreed) held that there was “practical merit” in affording an opportunity to be heard before a decision-maker who had an independent obligation to determine whether a complaint was to be summarily dismissed or not proceeded with further. This was because the “right to be heard was essentially different” to any which may be afforded at later stages of the investigation process given that the decision-maker had to provide the subject written notice of the complaint as soon as practicable after receipt, and make a preliminary decision whether to dismiss the complaint summarily before going further with the investigation: at 637-638, [85]-[87].

consideration

51    The task of the Court is to construe the Agreements in light of the principles outlined at [44] above. Approached in that way, cl 111 and cl 117 do not confer a right to be notified as part of a preliminary assessment that allegations have been made or a recommendation for an investigation is being considered, or an opportunity to respond to those allegations or be heard as to whether that recommendation should be made. This is for four reasons.

52    First, that construction gives effect to the ordinary meaning of the words in cl 111.4 and cl 117.4, read as a whole. The ordinary meaning of the word “although” is “even though (practically equivalent to though, but often preferred to it in stating fact)”: Macquarie Dictionary. On a plain reading, the phrase “[a]lthough the principles of procedural fairness apply the assessment is not a formal investigation” is properly construed as qualifying the general statement in cl 116.3 of the 2022 Agreement and cl 110.3 of the 2021 Agreement that the procedures in Section N account for the principles of natural justice and procedural fairness. That construction is reinforced by the final sentence of the clause which makes explicit that the only specific obligation on a manager or supervisor is “… to communicate the outcomes to relevant employees and their representatives if any.”.

53    Second, that construction accords with the immediate context of cl 111.4 and cl 117.4 in the Agreements. As cl 111.5 and cl 117.5 make clear, the function of the manager or supervisor is confined to making a recommendation to the head of service that the matter be investigated. There is little practical merit in affording an opportunity to be heard before a decision maker who is not the fact-finding tribunal and, indeed, is not even tasked with deciding whether the allegation of misconduct be referred for investigation. The only alternative in cl 111.1 and cl 117.1 to a determination that further action is required is a determination that “the matter can be resolved” – not a determination that the allegation of inappropriate behaviour or alleged misconduct has not occurred or cannot be established: c.f., Marles.

54    It is apt to emphasise that the immediate context of cl 111.4 and cl 117.4 does not point all one way. Clause 117.3 of the 2022 Agreement, provides that “generally” a preliminary assessment will be “limited to having discussions (either verbal or written) about the allegation of incident, with relevant employees, and, if requested, their representatives”: see also 2021 Agreement, cl 111.3. It may be accepted that this indicates that in the ordinary course a preliminary assessment might involve communications with the employees to whom the allegations relate, including the person the subject of those allegations. But the use of the word “generally” makes evident that it is not an invariable requirement that must be followed in each case.

55    Third, that construction is supported by the broader context of the “preliminary assessment” procedure as part of the management of allegations of misconduct under Section N of the Agreements. As the overview at [6] to [20] makes clear, the “preliminary assessment” is one of several steps or stages before a final decision is made about an allegation of misconduct. Section N enshrines procedures which ensure that a person in the position of the appellant is put on notice of, and given an opportunity to be heard with respect to, the allegations of misconduct: 2022 Agreement, cl 122.4, cl 123.2 and cl 124.3; 2021 Agreement, cl 116.4, cl 117.2 and cl 118.3. Thus, the decision-making process, viewed in its entirety, ensures procedural fairness: Ainsworth at 578. Indeed, the express statement of these requirements in other parts of Section N, including the enumeration of steps to be taken, tends to negate the implication of that requirement in cl 117.4 of the 2022 Agreement and cl 111.4 of the 2021 Agreement.

56    Fourth, and relatedly, the purpose of the “preliminary assessment” as part of the procedures in Section N weighs against a conclusion that it confers a right to be notified and heard about a complaint. The procedure is not a “formal investigation”: 2022 Agreement, cl 117.4; 2021 Agreement, cl 111.4. Nor does it empower the manager/supervisor to determine whether there should be an investigation. To the contrary, it is a procedure to “quickly determine” whether the allegation can be resolved or “formal investigation or other action is needed” to resolve the issue: ibid. The limited purpose of the preliminary assessment is to determine if there should be a recommendation made to the head of service for a formal investigation. Accordingly, to the extent that it was argued that a decision to commence an investigation in and of itself adversely affected Dr Avard’s rights and interests (including because it enlivened powers in the head of service to affect her working conditions), that adverse effect is not one that impacted upon Dr Avard at the preliminary assessment stage. In any event, as was recognised by Bleby J in C v Independent Commissioner Against Corruption (2020) 136 SASR 215; [2020] SASCFC 57 at [77]:

… multi-stage decision-making processes, especially those that are investigative in nature … often require preliminary decisions that may, to some extent, affect the interests of individuals and do so adversely. That does not mean that every discernible effect is necessarily such as to require procedural fairness.

57    The limited purpose of the preliminary assessment procedure, coupled with its broader context, supports a construction that there is no enshrined obligation of procedural fairness in cl 111.4 or cl 117.4 as contended by the appellant.

conclusion

58    For these reasons, the appeal should be dismissed.

Associate:    

Dated:    23 May 2025