C2001/4709, Transcript of Proceedings [2001] AIRCTrans 2583 (3 October 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 0199
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2001/4709

HEALTH SERVICES UNION
OF AUSTRALIA

and

PETER MacCALLUM CANCER
INSTITUTE

Notification pursuant to section WR 99 of the Act
of a dispute re alleged stand-down of medical
scientist, alleged implementation of processes
contrary to the disciplinary provisions of the award

MELBOURNE

10.08 AM, WEDNESDAY, 12 SEPTEMBER 2001

PN1

MS R. KELLY: I appear for the Health Services Union of Australia.

PN2

MS R. VXKU: I appear for our client representing SIAG.

PN3

THE COMMISSIONER: Thank you, Ms VXKu. Right. Now, Ms Kelly, this - I received an e-mail when I arrived this morning. It was sent last night from Ms Williams, who apparently is the principal adviser in this matter to the client which is Peter MacCallum Cancer Institute, and it indicates that she was unavailable today because she has some listings in Warrnambool and apparently she says the institute's management who have knowledge of this particular matter are also unavailable as they are required in the Federal Court.

PN4

And in fact, you did contact me late yesterday afternoon to see whether I was aware of the application for an adjournment which I was not. So the matter, I indicated, was to proceed this morning. Now, where are we at with this particular issue?

PN5

MS KELLY: Commissioner, I am glad that Ms Williams has clarified her position as principal adviser to the institute because one of the matters at issue is Ms Williams role in this matter, and I will come to that in a moment. Mr Magee was stood down a week ago on 5 September. I was actually at the institute at the time to attend a meeting which was called to discuss staffing levels and haematology. Ms Christina Wilson was there as the HR Manager, Mr Magee had already arrived and the senior pathologist was there as well as it was a matter of staffing issues.

PN6

Mr Magee was handed a letter prior to my arrival in which allegations that had been made against him were interpreted by HR. So there was a letter from HR. It was not the letter of complaint from the complainant. I expressed my concern then at the time and asked that we meet urgently the next day, that was Thursday - this happened Wednesday afternoon - in order to see whether Mr Magee could be reinstated back in the workplace as there was a breach of the award in relation to the stand-down.

PN7

I understood the seriousness of issues around harassment, alleged harassment, but there was an alternative way - well, there were two alternatives that I put to Peter Mac in relation to how Mr Magee could be re-placed back in the workplace prior to a process of investigation occurring. And the pathologist was there and I discussed it with him, one of which was to have Mr Magee working in the Blood Bank which is a separate area from the haematology laboratory so he would not have to come in contact with the complainant.

PN8

The second alternative - I think both parties including Mr Magee think it probably was the better alternative - was there was a matter of NATA documentation - NATA is the accreditation board for pathology laboratories - and there was a lot of work to be done on NATA accreditation which had already been flagged within the labs that somebody would have to do it.

PN9

So the second alternative was for Mr Magee to perform the - or to bring together all the NATA documentation that is probably more than a week's work, probably more than a month's work in that, and that he could work in an office away from the laboratory so there would never need to be any sort of crossing of paths of the two people concerned.

PN10

That was going to be considered by Peter MacCallum. That is where I left it with them. And the second matter we discussed was the matter of a proper investigation.

PN11

THE COMMISSIONER: Right.

PN12

MS KELLY: So we discussed the issue of - the letter that had been given to Mr Magee was not actually the letter of complaint.

PN13

THE COMMISSIONER: Right.

PN14

MS KELLY: I can tender the letter that was given to Mr Magee. It probably just makes it a little bit easier.

EXHIBIT #HSUA1 LETTER TO MR MAGEE

PN15

MS KELLY: I will not go to the detail of the letter now, but Mr Magee was not provided with the letter of complaint from the complainant. This was an interpretation by Ms Christina Wilson of what, in fact, was in the letter of complaint. I asked at that meeting that Mr Magee be provided with the original letter of complaint from the complainant as he has the right to know the nature of the charges and allegations which have been made against him.

PN16

Ms Wilson agreed to do that - this was last Thursday - it is a week since Mr Magee was given this letter that you have. He still has not received the original letter of complaint from the complainant. In that meeting Thursday last I asked Ms Wilson if I could see the letter of complaint because I was not content to rely on an interpretation of that letter, which she had made. So she said she would show me a copy of the letter.

PN17

Then she informed me that there were complaints against two other scientists in the letter and she was going to black out parts of the letter. We had a brief discussion about whether or not she should divulge to me the name of the other scientist who had an allegation her. I suggested to her that it would be inappropriate for confidentiality to be breached by informing me of those allegations before that person had been informed.

PN18

So we had a discussion about a second set of allegations and how the scientist who was alleged to have done something ought to be informed as a matter of natural justice that there was an allegation against her as well. So the agreement I reached with Ms Wilson was that she would provide the original letter of complaint against Mr Magee, that she would provide the letter of complaint to the other scientist concerned in the letter.

PN19

She did then go and photocopy the letter and gave it to me. I read the letter of complaint. Dr Waring, a pathologist, was in this meeting at this point in time and I brought their attention to an assertion in the letter in paragraph 2 that Ms Dorsey expressed in her written complaint the perceived threat to her of potential physical violence. First of all we are talking about perceived threat, not actual threat, and we are talking about potential physical violence and not actual physical violence.

PN20

When I read the letter of complaint from Ms Dorsey there was absolutely no mention of physical violence or physical threat of any sort whatsoever. So I said to both of them in this meeting this is a misrepresentation of the complaint and they agreed that she had not complained of any physical threat or potential physical violence.

PN21

So I then asked them why Mr Magee had been stood down, given that there was no threat to him and when you read the allegations there are three incidents, two of which are referred to in the letter, only two of the three, and both of the incidents refer to when you read the actual letter of complaint, not the translation by HR, the two incidents refer to a supervisor/supervisee relationship in which Mr Magee asked her about the way in which she was performing certain work.

PN22

Certainly, her letter says she perceived it to be done in a way that she found uncomfortable, but there is certainly nothing in the letter that indicates there was any physical threat or physical violence. She does say that she had herself some physical reactions to it in that she felt stressed. What I want to canvass today is not the actual allegations, the merits of them.

PN23

THE COMMISSIONER: No.

PN24

MS KELLY: But the process. So the first point I made to Ms Wilson was that Mr Magee ought not to have been stood down. So that was the first issue. The second issue was returning him back into the workplace. And the third issue was setting up a set of terms of reference for the inquiry by an independent person. When you read Ms Wilson's letter to Mr Magee, she does say that in paragraph 2 - well, firstly in paragraph 1, the matter has been referred to her and she will independently coordinate, facilitate a full and proper investigation.

PN25

Then she says in paragraph 2 that a thorough and independent inquiry will be undertaken to see whether there is any substance. Now, my concerns that I expressed to her was that in the written complaint there were actually three things referred to. One of them was hearsay. In the letter there is only two things referred to. So what exactly is going to be investigated.

PN26

THE COMMISSIONER: Right.

PN27

MS KELLY: So what I wanted to discuss with her was the terms of reference. We agreed we would discuss it the next day, being Friday, it was just a general agreement around, yes, we need to have terms of reference.

PN28

THE COMMISSIONER: Right. So when was the last time that you spoke to Ms Williams, being the principal adviser, on the issue of setting up terms of reference and how this investigation should actually proceed?

PN29

MS KELLY: Well, Ms Wilson actually proposed Ms Williams as the investigator.

PN30

THE COMMISSIONER: Right.

PN31

MS KELLY: Now, I said to her, well, you both work for SIAG, there could be a perceived conflict of interest there, but if Ms Williams is going to be truly independent then I would accept that, but I would accept it on the basis we have these terms of reference.

PN32

THE COMMISSIONER: Right. So when was the last time you actually sat down with Ms Wilson to sort that out?

PN33

MS KELLY: That was on Thursday last week.

PN34

THE COMMISSIONER: And nothing has occurred since?

PN35

MS KELLY: No. On the Friday she did not ring me to discuss either the return to work or the terms of reference. Ms Williams rang me late afternoon on Friday and left a message. I am also dealing with Ms Williams on an EBA issue, so I thought it was in relation to that. Ms Williams informed me she was acting for the employer. She informed me she had begun the investigation and she informed me that she had advised Peter Mac not to return Mr Magee to work.

PN36

She also advised me that she had advised Peter MacCallum not to give the letter of complaint to the other scientists who were named in the letter. And I said to her, well, I think there is a conflict of interest here, you cannot both be an adviser to the institute and an independent investigator at the same time, there is a serious conflict of interest here. And I said to her at this point on late Friday afternoon that I had agreed with Christina Wilson that there would be terms of reference before she started any inquiry.

PN37

Now, the problem that I had at the time was they do have a set of principles for inquiries of this nature and by their own principles they are supposed to name the witnesses. Ms Williams told me she had just gone down into the pathology laboratory and asked some general questions inviting people to approach her about issues. So she was going far and wide beyond the actual inquiry.

PN38

THE COMMISSIONER: All right. So who would you prefer to sit down with to talk about the terms of reference and how this matter should proceed?

PN39

MS KELLY: Ms Wilson and Dr Waring who is the pathologist. I think he needs to be involved as well.

PN40

THE COMMISSIONER: Right. So where does that leave Ms Williams? Do you say that Ms Williams is not an independent investigator?

PN41

MS KELLY: Well, if Ms Williams wants to be sitting down - if Ms Wilson wishes Ms Williams to be an adviser to the hospital, I don't have any objection to her being adviser to the hospital, whoever they decide, I will happily sit down with Ms Williams. But she cannot be judge, jury and write the terms of reference.

PN42

THE COMMISSIONER: No, only the Commission can do that.

PN43

MS KELLY: Yes, Commissioner, I would rather put myself in your hands, I have to say. I think we would be able to develop the terms of reference. So I don't object to meeting with Ms Williams to develop the terms of reference, but she cannot then do the investigation. It has to be an independent third party, agreed to by the parties, who does the investigation.

PN44

THE COMMISSIONER: Right.

PN45

MS KELLY: So that is what - - -

PN46

THE COMMISSIONER: Okay.

PN47

MS KELLY: I actually wrote to the institute expressing my concerns about what had happened and proposing various options to go forward and I sent that letter to them first thing on Monday morning. I actually spend the weekend drafting it so I could get it off to them at 9 o'clock. And it may be useful to tender that because it does have some suggestions in it as to a way forward.

PN48

THE COMMISSIONER: Right.

EXHIBIT #HSUA2 LETTER FROM MS KELLY TO THE INSTITUTE

PN49

MS KELLY: The matter is fairly complex, Commissioner, because there are a number of different issues involved in it and we have only canvassed some of them and my letter canvasses many of the issues that occurred.

PN50

THE COMMISSIONER: Yes. Maybe if we hear from Ms VXKu. The Commission will then consider where we go. Ms VXKu.

PN51

MS VXKU: Commissioner, we find ourselves here today I think pretty much as an act of frustration, I believe. I have been briefed by Ms Williams, and there appears to be some difficulty in getting the parties together to the table to negotiate the issue. Peter Mac is in receipt of a serious list of allegations including workplace bullying, threatening behaviour and verbal abuse. These complaints have been validated by a co-worker.

PN52

In keeping with our client's equal opportunity and harassments complaints investigation procedure, they have commenced what we believe to be an independent investigation following those guidelines, which meet with the EEO legislation as it stands today. Ms Williams is not a worker from SIAG who is placed - an employee from Peter Mac - sorry, an employer of Peter Mac.

PN53

We have the contract for HR services at Peter MacCallum. Ms Williams, it was normal behaviour for her to act as our EEO officer for many clients in many different areas, not just in health. So we do believe her to be an independent person in relation to this. And thus far we believe that she has followed completely the EEO policy put in place by our client. Due to the serious nature of the complaints that were put forward, the employee who had the complaints lodged against them was stood down on full pay.

PN54

And it is my understanding - and I do work with Ms Williams - that there have been several attempts made in the last two days, even as late as yesterday morning at 10 am, to set up a meeting with the employee who has been stood down with Ms Kelly and with Peter Mac HR staff and that has failed to eventuate.

PN55

THE COMMISSIONER: Right. But Ms Kelly raises a reasonably valid point that if you have got, in this instance Ms Williams, who is conducting an investigation, albeit as SIAGs EEO officer, but at the same time is offering advice to Peter Mac, then there is obviously a perception that there is a conflict of interest, because you can't be both. It is like the Commission. The Commission holds an inquiry or conducts a hearing. It then can't offer specific advice on how to progress with that hearing to any one of the particular parties.

PN56

It may offer some advice as to what might be a reasonable outcome, but that is its role as a conciliator. It is not a role, though, that says, look, I might offer you some advice and give nothing to Ms Kelly. It does not work that way, and if that appears to be the role that Ms Williams is playing, then one can understand that there is a perception that, you know, things are not straight up and down.

PN57

What needs to happen is for Ms Kelly and Ms Williams - if Ms Wilson wishes to be there that is fine - to meet as a matter of some priority and, hopefully, that might be tomorrow given that Ms Williams is in Warrnambool today, that might be tomorrow, to actually go through the terms of reference, agree on those and who, in fact, will conduct the investigation. And everything must be fair and above board, because any investigation procedural fairness and natural justice must apply not only to the person making the allegation, but to the person whom the allegation is made against. So what is your availability tomorrow? Ms Kelly?

PN58

MS KELLY: I am available tomorrow, Mr Commissioner.

PN59

THE COMMISSIONER: Okay. What about if you contact Ms Williams today and advise Ms Williams that the Commission will direct that the parties - that is Ms Kelly and Ms Williams - meet tomorrow morning, say, at 10 o'clock to go over the terms of reference and the allegations made against Mr Magee and exactly who will conduct the inquiry and how that inquiry will be conducted. And if the parties have difficulty, then they can come back to the Commission.

PN60

MS KELLY: Commissioner, I don't know that Ms Williams is available tomorrow, because she said to me on the telephone last night when she rang me that she would not be available tomorrow.

PN61

THE COMMISSIONER: On Thursday. Are you available Friday?

PN62

MS KELLY: No, I am not and I advised her that. I said I would be out of town on Friday. I am happy to meet with Ms Wilson who was the original - - -

PN63

THE COMMISSIONER: Whoever is the most convenient to meet with, but I would have thought Ms Williams may have been a necessity to be there, given that apparently she is the person nominated to do the inquiry.

PN64

MS KELLY: Yes, she was, but that was subject to the terms of reference obviously. Oh, look, it may be worthwhile also tendering this letter from Ms Wilson who, given that I had been only speaking to Ms Wilson about this and been corresponding with her and she seemed to be the principal adviser, she is the HR manager at - - -

PN65

THE COMMISSIONER: Right.

PN66

MS KELLY: - - - Peter Mac, I think it would be useful - - -

PN67

THE COMMISSIONER: Well, what is Ms Wilson's availability tomorrow, do you know?

PN68

MS VXKU: No, I don't, Commissioner.

PN69

THE COMMISSIONER: Okay. Well, fine, let us change the name from Williams to Wilson and the both of you are to meet tomorrow morning at 10 o'clock and see whether you can sort out how this thing progresses. We will mark that correspondence HSUA3.

EXHIBIT #HSUA3 LETTER FROM MS WILSON

PN70

THE COMMISSIONER: Keep going, Ms Kelly.

PN71

MS KELLY: Yes.

PN72

THE COMMISSIONER: We will go through every branch of the HSUA, you know.

PN73

MS KELLY: I will get to 4 soon.

PN74

THE COMMISSIONER: Yes.

PN75

MS KELLY: Look, the other issue obviously of importance in this is the question of Mr Magee's stand-down. This is not an equal opportunity matter and I have discussed this with Ms Wilson and Ms Williams and advised both of them that it is not an equal opportunity matter. They continually hide behind this is an equal opportunity matter, this is a serious allegation, we had to stand Mr Magee down.

PN76

If the Commission pleases, I will just hand up a photocopy, I won't hand up the whole Act, it is rather large, of the relevant pages of the Equal Opportunity Act. This is a Victorian Equal Opportunity Act and on page 2 of the printout, 3, The Objectives:

PN77

The Objectives of the Act are to promote recognition and acceptance of everyone's right to equality of opportunity.

PN78

(b) to eliminate as far as possible discrimination against people by prohibiting discrimination on the basis of various attributes;

PN79

(c) to eliminate as far as possible sexual harassment.

PN80

(d) to provide redress for people who have been discriminated against or sexually harassed.

PN81

Now, the allegations that have been made against Mr Magee by Ms Dorsey do not go to any allegations of discrimination on prohibited grounds. There is no allegation of discrimination at all. And secondly, there is no hint of sexual harassment in the allegations. The allegations do not go to sexual harassment. In my meeting with Ms Wilson on Thursday, I pointed out to her that the Equal Opportunity Act did not apply. This was not an EEO matter.

PN82

She then said, but there is harassment. And I said, well, there is alleged harassment, but I want to make it perfectly clear, are you suggesting that there is a sexual element in the harassment. She said, no, not at all, this is not sexual harassment. So I pointed out to her again that this was not an EEO matter, the EEO Act does not apply.

PN83

Given that there is no over-arching legislative act applying to the situation, what does apply is the Health Services Union of Australia Public Sector Victoria Interim Award 1993 in relation to disciplinary processes. There is no provision under that award in the disciplinary process for a stand-down of an employee to occur. So the stand-down has taken place without any legislative basis and, indeed, when you look at the award there is no provision for a stand-down of an employee.

PN84

Now, the reason why I am so concerned or the union is so concerned about the issue of stand-down is the way in which a stand-down is construed by other people. There has been a statement made to staff in the pathology laboratory that Mr Magee, he was named, that Mr Magee is stood down. There has been a complaint made against him which relates to equal opportunity.

PN85

The complainant was not named, but Mr Magee was named. So immediately there is a stain on Mr Magee's reputation and character, even though these allegations have only the status of allegations. Once somebody says it is an EEO matter, then obviously people think, well, it is a sexual harassment issue, because if it is not discrimination and it is not sexual harassment it is not EEO. So immediately we have a situation where Mr Magee's reputation has been damaged by the fact that he is stood down.

PN86

There are a number of other issues which you would no doubt be aware of and have been canvassed before you many other times about the impact that stand-downs have on a person in terms of their stress levels and their physical and emotional health. Because they are stood down they are out of the workplace, they are at home stewing over all of these issues.

PN87

THE COMMISSIONER: Right.

PN88

MS KELLY: And so there is a number of ways in which Mr Magee has been damaged by the employer, and I pointed out to the employer that they have a duty of care to both people in this situation. We have allegations which only have the status of allegations. There is no suggestion of sexual harassment or EEO, yet we have extremely serious damage to Mr Magee's reputation, a scientist who is - a senior scientist, grade 4 scientist, who has been there 20 years and has never had any sort of stain on his reputation at all.

PN89

THE COMMISSIONER: Well, can I suggest that in meeting with Ms Wilson tomorrow morning - and the Commission is not prepared to do anything at this stage in terms of Mr Magee being stood down. I hear what you are saying about it being in contravention of the award. As you know, that does occur. I mean, the alternative is that they - some people take it upon their head to terminate rather than stand down. Stand-down sometimes is a better alternative, but I hear what you are saying in terms of the aspersions made against Mr Magee's character because he has been named and there is this innuendo that if it is EEO, then it is sexual harassment. I understand that. In discussions tomorrow morning with Ms Wilson, one of the issues that you obviously should talk about is, (a), whether it is appropriate to be dealt with under the EEO; secondly, whether there are alternatives other than Mr Magee being stood down, and I think you have mentioned a couple earlier.

PN90

MS KELLY: Yes.

PN91

THE COMMISSIONER: Yes.

PN92

MS KELLY: I have canvassed those already.

PN93

THE COMMISSIONER: Yes. If no agreement can be reached tomorrow morning, and you still believe that there is an issue about Mr Magee being stood down - and I see no reason why you can't get an agreement on terms of reference and so forth - then it might be appropriate if you contact the Commission again tomorrow.

PN94

MS KELLY: Yes.

PN95

THE COMMISSIONER: And if necessary we can relist the matter for Friday morning.

PN96

MS KELLY: It is possible to get a relisting late tomorrow afternoon, Mr Commissioner?

PN97

THE COMMISSIONER: No, we are in Ballarat.

PN98

MS KELLY: Well, Mr Magee may have to be represented by someone else on Friday, because I am - - -

PN99

THE COMMISSIONER: And quite adequately so.

PN100

MS KELLY: I am sure adequately so.

PN101

THE COMMISSIONER: Yes, I am sure. So is that - I think that is a reasonable approach to take.

PN102

MS KELLY: Well, I would have to say, Mr Commissioner, that Mr Magee has been stood down for a week and I have put these propositions already to Ms Wilson last Thursday and there was general agreement that that would be a possibility. It was Ms Williams advice to them that they don't reinstate him that prevented him going back to work this Monday.

PN103

THE COMMISSIONER: Right.

PN104

MS KELLY: I really - - -

PN105

THE COMMISSIONER: Well, now, if you have - I am sure that Ms VXKu will convey to Ms Wilson what the Commission has said today or this morning and that there is a possibility that if no agreement can be reached, particularly on the issue of Mr Magee and his current status, that the matter may be brought back before the Commission on Friday and the Commission has available to it certain powers in which it can do things.

PN106

MS KELLY: Yes, it does.

PN107

THE COMMISSIONER: Yes.

PN108

MS KELLY: Thank you, Commissioner. There are some other matters involved in this and one is the fact that Mr Magee still does not have a copy of the complaint which has been made against him.

PN109

THE COMMISSIONER: Well, procedural fairness and natural justice says that any allegation made against any person, that person should be provided with a full and proper allegation, so that they have something to address and respond to.

PN110

MS KELLY: So I would ask you to make a recommendation or an order that Mr Magee be provided with a copy of the allegation forthwith.

PN111

THE COMMISSIONER: Ms VXKu, would you convey to Ms Wilson, please, that the Commission would expect and would recommend that Mr Magee be provided with a copy of the letter making the allegation against him? If he is not provided with that on a voluntary basis from Peter MacCallum institute, then the Commission will consider what orders it may issue to ensure that that does occur.

PN112

MS VXKU: I will do that, Commissioner.

PN113

THE COMMISSIONER: Thank you.

PN114

MS KELLY: Now, Commissioner, there is the issue of - there is two other people named in an hearsay allegation that is part of the complaint. Ms Williams told me she was investigating that matter, even though it does not appear in the letter and there are two other scientists concerned.

PN115

THE COMMISSIONER: Well, they need to be understood by Mr Magee and if there is something in writing, that also needs to be provided to Mr Magee. If it is verbal - - -

PN116

MS KELLY: No, that - - -

PN117

THE COMMISSIONER: - - - then there needs to be appropriate notification to Mr Magee as to actually what was said.

PN118

MS KELLY: There is a written complaint - well, it has been taken as a complaint and interpreted as a complaint by the institute.

PN119

THE COMMISSIONER: Well, then, Mr Magee needs to see that.

PN120

MS KELLY: And it also names two other scientists. I would ask that those two other scientists be provided with that part of the complaint that relates to them, because apparently it had already started to be investigated by Ms Williams. They do not know anything about this complaint that has been made against them.

PN121

THE COMMISSIONER: The scientists don't?

PN122

MS KELLY: Sorry?

PN123

THE COMMISSIONER: Who does not know?

PN124

MS KELLY: The two people who are the subject of this complaint, which is contained in the written statement of Ms Dorsey do not know what that complaint is. Ms Williams - - -

PN125

THE COMMISSIONER: So they are alleged to have complained about - - -

PN126

MS KELLY: No, no, they are alleged to have a complaint made against them by Ms Dorsey. She names two other people in her written statement.

PN127

THE COMMISSIONER: Oh, okay.

PN128

MS KELLY: They also need to - - -

PN129

THE COMMISSIONER: And are they being investigated?

PN130

MS KELLY: Well, apparently one of them is, I was informed by Ms Wilson.

PN131

THE COMMISSIONER: Without them knowing?

PN132

MS KELLY: Without them knowing.

PN133

THE COMMISSIONER: Are you aware of anything?

PN134

MS VXKU: No, Commissioner, I am unable to throw any light on that issue at all.

PN135

MS KELLY: I mean, natural justice again demands that if there is a complaint made against you, that you have a copy of it.

PN136

THE COMMISSIONER: They need to know what the - the person needs to know (a) that there is a complaint against them; and (b) exactly what that complaint is. You cannot conduct an investigation on a complaint against somebody and that person not know that they are being investigated. That is a nonsense.

PN137

MS KELLY: Of course.

PN138

THE COMMISSIONER: So maybe you can raise that with Ms Wilson tomorrow and convey to her what the Commission has said, particularly in regards to Mr Magee and expects the same principles to apply to anybody else that has had an allegation made against them.

PN139

MS KELLY: Yes. It was on Ms Williams advice that that was not provided, because I asked Ms Wilson on Thursday.

PN140

THE COMMISSIONER: Well, it is just procedurally unfair and just - it goes against any process in terms of natural justice. People have to understand what the complaint is against them, so that they have a proper and adequate opportunity to deal with it and respond to it. If they don't, then it is not a true and proper process and any outcomes from that are null and void. Simple. Can we go any further?

PN141

MS KELLY: No, Mr Commissioner, I don't think you need to go any further on that matter. There is one other issue and that is, I would be seeking in the meeting with Ms Wilson that we reach agreement on an agreed investigator.

PN142

THE COMMISSIONER: Well, that is a matter that you can discuss with Ms Wilson. If you can't, then obviously it may be one of the matters that you need to bring back to the Commission and the Commission may decide to nominate somebody.

PN143

MS KELLY: Well, there are some issues that obviously I will need to discuss with Ms Wilson that are around Mr Magee's return to work. I won't canvass them now.

PN144

THE COMMISSIONER: No.

PN145

MS KELLY: If they are not resolved - - -

PN146

THE COMMISSIONER: Yes.

PN147

MS KELLY: - - - then they will be canvassed fully on Friday.

PN148

THE COMMISSIONER: Possibility, yes. Okay, all right. The Commission will stand adjourned and will reconvene at a date convenient to the parties.

ADJOURNED INDEFINITELY [10.39am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #HSUA1 LETTER TO MR MAGEE PN15
EXHIBIT #HSUA2 LETTER FROM MS KELLY TO THE INSTITUTE PN49
EXHIBIT #HSUA3 LETTER FROM MS WILSON PN70