NTP.098.022.014·
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. Fitzpatrick allegation v Greenfield
Legal advice has been sought as to the manner in what has become a complex issue
should be handled by the Branch. The legal advice was sought to ensure that we handle
this manner in a fair unbiased way, that it also protects the union from criticism should
parties involved be dissatisfied with the results of the process adopted and at the end of
the day the union faces a legal challenge.
The legal advice can be set out in a fairiy straightforward way as follows.
THE ISSUE
What we have is a serious allegation made by one official against the another. Fitzpatrick
alleges that he was subject of a direct death threat by another official, Darren Greenfield.
This is a serious allegation matter and should be addressed and treated as such.
THE PROCESS
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The principal officers of the union, the Secretary and the President are obliged to
investigate the allegation.
It is not appropriate, or the role of the COM at this stage to take part in the investigation of
the actual allegation.
What it should do is allow the Principal Officers to undertake a thorough investigation of
the allegation and .allow them to report back.
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The COM cannot, and should not sit as a court of determination, it cannot for example call
officers before it answer questions at this stage. It is not to say that at some point in the
future the COM will not have a more direct role, but this needs to occur as part of a legally
justifiable and orderly process with all members of the COM cognisant of their obligation to
bring an unbiased, objective mind to matters before it. It is also important that as a body of
the union, which may be called at some point in the future to convene as a tribunal, that
prinCiples of procedural fairness and natural justice apply.
At some point the COM may be called upon to review the recommendation of the
Principal officers and it is important that the COM is not compromised in its role because of
it having pre-emptively involving itself in the matter. The credibility of the process is just as
important as the result of the investigation itself.
THE 10 MAY 2013 EXTRAORDINARY MEETING OF THE COM
It is important that this meeting sets the ground rules for how the matter will be handled:
1. As a first step and arising out of the last COM meeting, Don McDonald was brought in
to try, being a former Branch Secretary of some standing, to meet with various officials
and provide a general report of the matters raised with him. This was done to provide
some objectivity. His report should be heard. It is not for Don to determine the issue of
the allegation made, but he should report on his observations having spoken to a
number of people directly and indirectly involved. He also sets out a number of
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recommendation and guiding principles to assist the Branch in dealing with a difficult
situation.
2. The COM can resolve some general principles ariSing from Don's report about the
manner in which officers and staff conduct themselves and interact with each other.
They might for example direct the principal officers to develop a policy capturing the
elements of Don's observations and recommendations.
3. The COM should allow the principal officers to finalise the investigation and draw a
conclusion about the allegation. The principal officers need to establish on the balance
of probabilities whether the allegation is made out or not and what the response should
be. Those involved should give a statement and be directed to do so.
4. The findings of the investigation should be reported to the COM at a future meeting for
endorsement or otherwise and the matler of the allegation finalised.
DRAFT RESOLUTION:
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4.
That the report of Don McDonald be received and noted.
That the matters of principle raised by Don McDonald's report be considered
by the PrinCipal offices who are requested to develop a policy document and
provide it · to the COM at its next meeting, including a strategy for
communication to all officers and staff.
That the allegation of one officer threatening to harm another officer is
serious and should be treated as such. This needs to be done in a formal
process.
That the principal officers, the Secretary and the President finalise the
investigation of the allegations and report back to the next Committee of
Management on 31 May 2013, the outcome.
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