C2001/1743, Transcript of Proceedings [2001] AIRCTrans 850 (11 May 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS


O/N 7023
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2001/1743

HEALTH SERVICES UNION OF AUSTRALIA

and

AUSTRALIAN RED CROSS BLOOD SERVICE

Notification pursuant to section 99 of the Act
of a dispute re grievance arising from a written
warning issued to an employee. It is alleged
warning is unjustified and constitutes harassment.

MELBOURNE

10.23 AM, TUESDAY, 24 APRIL 2001

PN1

MR G. MEGENNIS: I appear on behalf of the HSUA. I have with me a member from the Australian Red Cross Blood Service, MR LEO RAFFOUL.

PN2

MS C. HEALY: Commissioner, solicitor, Lander and Rogers. I seek leave to appear and represent the Australian Red Cross Blood Services and I have with me MR J. GODDARD, HR manager for the Red Cross.

PN3

THE COMMISSIONER: Thank you, Ms Healy. Mr Megennis, do you have any objections to Ms Healy seeking leave?

PN4

MR MEGENNIS: Commissioner, I have had some discussions with Ms Healy and Mr Goddard here this morning about the application to seek leave and on the basis of those discussions, we are not opposed to the application for leave to appear.

PN5

THE COMMISSIONER: Thank you. Leave is granted, Ms Healy. All right. Mr Megennis.

PN6

MR MEGENNIS: Yes, thank you, Commissioner. This matter really has a history, you might say, from our point of view, Commissioner. It goes back a number of years, but the HSUAs reasons for notifying this matter stems from the ARCBSs in our view, systematic harassment of our member, Mr Leo Raffoul, who was a Grade I medical scientist with the Australian Red Cross blood service. Mr Raffoul was issued with a written warning by the ARCBS on 29 March, 2001 for alleged performance related matters. The HSUA contends that the warning was issued unfairly and without justification after Mr Raffoul respectfully sought leave of absence fro ARCBS on 24 March to personally care for his elderly, 80 year old father who has been seriously ill and has recently required a partial leg amputation.

PN7

We seek the Commission's assistance in resolving this matter in accordance with section 110 and 111(1)(d) where we anticipate that the Commission will view this matter and direct the ARCBS to withdraw its written warning against our member or, if necessary, exercise its powers under section 111(1) subsection (t). We ask the Commission to base its decision on the following submissions of the HSUA. We allege that the ARCBS has purposefully set out to undermine and erode Mr Raffoul's confidence and ability to perform his duties in a normal capacity. In our view, this constitutes a serious case harassment unknown or experienced by any other staff member of the ARCBS.

PN8

For example, we maintain that Leo, that is Mr Raffoul's first name, has been isolated like no other employee in terms of having to continuously undertake rigorous weekly quality assurance meetings, which often leave him feeling undermined and continuously erode his professional confidence and his sense of personal well being, as an individual who is only attempting to perform his duties in a work environment free from intimidation. His warning, from our observations, also stems as a result of him genuinely approaching his supervisors and management team after recording his own errors in relation to performing certain tests.

PN9

We allege that the harassment commenced in December 1998 following a Federal Court order decision from Ryan, Moore and Marshall JJ on 26 November, 1998 which upheld an earlier judgment to reinstate to Mr Raffoul to a position no less favourable and comparable with his former duties and classifications as a scientist at the ARCBS. We maintain that the order is significant and relevant to these proceedings on account of the Federal Court's earlier judgment from Gray J in 1997, when he issued an order which included a statement regarding Mr Raffoul's previous experience of more than six years as a Medical Scientist Grade I and the fact that there was an absence of any history relating to any former warnings on his personnel file.

PN10

In addition, this order required the ARCBS to implement a structured return to work plan for which Leo was - which Leo, we understand, has never been provided with by the ARCBS.

PN11

THE COMMISSIONER: Was that proceedings under the old Act where - - -

PN12

MR MEGENNIS: Yes.

PN13

THE COMMISSIONER: Okay, they had an option of either the court or the Commission, is that right?

PN14

MR MEGENNIS: Yes. I would like to just tender at this stage a copy of the warning. The letter also has attached a letter in response to Mr Raffoul's application for leave without pay. I would also like to tender a copy of the Federal Court order in relation to an unsuccessful appeal by the ARCBS relating to Mr Raffoul's reinstatement. Commissioner, would you be issuing an exhibit number?

PN15

THE COMMISSIONER: Yes.

EXHIBIT #HSUA1 AUSTRALIAN RED CROSS LETTERHEAD

EXHIBIT #HSUA2 FEDERAL COURT DOCUMENT

PN16

MR MEGENNIS: As outlined in my opening comments, Commissioner, the warning was issued on 29 March and as that is indicated on the correspondence from the Red Cross Blood Service that you have in exhibit HSUA1, and as I also indicated, there is a letter attached at the rear of this document, making a reference to Mr Raffoul's leave without pay to care for his father. This application for leave without pay was made by Mr Raffoul on 25 March and subsequently, four days later, Mr Raffoul was issued this letter of warning on 29 March. In relation to the points that I referred to in relation to the Federal Court order decision, Commissioner, I made a reference to Mr Raffoul's previous work performance history and if I can draw your attention to page 10 of that document, which is noted on the left hand side.

PN17

Down the bottom of that page, there are a number of star points which indicate, as I indicated earlier, Commissioner, that there was no - there was an absence of any formal warnings or complaints about Mr Raffoul's work performance. And as also stated in the previous judgment by Gray J, there was a return to work plan which I would also like to tender to you.

EXHIBIT #HSUA3 RETURN TO WORK PLAN

PN18

MR MEGENNIS: In that document, Commissioner, we understand that his Honour Gray J had stated that the applicant would need training in order to function as a Medical Scientist Grade I in the Virus/Serology Unit. And this return to work plan sets out a process to enable - was to enable Mr Raffoul to return back to work after the reinstatement and to undertake subsequent training to re-acquaint himself with his new duties in the ARCBS.

PN19

THE COMMISSIONER: Has this been complied with?

PN20

MR MEGENNIS: Well, we maintain that certain aspects of that document has not been complied with. In particular, there were some requirements, which I will outline in a couple of minutes, Commissioner, that have not been undertaken by the ARCBS. The plan also states that if competency is not demonstrated within the defined training period, but can be remedied, there is a responsibility of the supervisor to assist the employee to determine how and in what manner the job or task is to be done. And as indicated earlier, Commissioner, Leo, after discovering his own errors in relation to performing a number of tests, discovered that there were some problems with those results and sought clarification and support from his management to resolve those - how those errors took place.

PN21

Based on Leo's performance history since the re-instatement, the ARCBS has decided that, in our view, issuing written warnings is the preferred way to ensure that his job is undertaken satisfactorily to their requirements. In addition, Commissioner, the return to work plan states that the ARCBS was required to provide an employee assistance program to be delivered by Occupational Services of Australia and to develop a skills analysis in consultation with the Royal Melbourne Institute of Technology to assist Leo's return to work. We maintain that neither of those services were provided to our member.

PN22

We also note for the record that whilst in house training was provided, when he returned to work in 1998, December 1998, I only learnt this this morning, that whilst undertaking those return to work training sessions, he was required to use annual leave during that period even though he had actually been formally re-instated by the court. In our view and based on my advice from Mr Raffoul, he never sought to take annual leave during that period. This is just an example of the degrees to which ARCBS has subjected our member to an erosion of his confidence. I would like to return to the written warning, which was issued on 29 March, 2001 and in our view there are essentially two issues which the ARCBS relies on to support the reason for the issuing of the warning.

PN23

The first issue relates to performance matters associated with performing coagulation tests otherwise known as factor 8 assays and performing calibrating duties of the machines. The factor 8 assays, as I am advised and I am talking from a lay person's point of view, is a quality assurance test performed at the end of the process of blood donations where plasma is checked for factor 8 components - levels within the plasma. The second issue is based on the ARCBSs assertion that Leo has failed to follow a lawful instruction by failing to seek ARCBS approval to attend a personal medical appointment and to use personal sick leave entitlements. Secondly, the ARCBS also alleges that Leo failed to follow a lawful instruction when he commences duties one hour earlier than his normal starting time.

PN24

Thirdly, ARCBS claims that Leo acted unlawfully when he answered a personal call from a hospital specialist on a mobile phone concerning his father's illness at that time when he was - that is, his father was in hospital undertaking specialist treatment. In the circumstances, we view the assertion of professional incompetence as contained in the warning as highly insulting to Leo's integrity and personal well being as a loyal employee of the ARCBS. We maintain that our submissions will sufficiently demonstrate that our member has sustained an unjustified personal attack on his ability to adequately perform his daily duties and that this warning is a part of a systematic attempt to constructively dismiss Mr Raffoul by continuously subjecting him to unnecessary taunts about his professional conduct or to subject him to levels of scrutiny, which to our knowledge, is not experienced by any other medical scientist or for that matter any other employee of the ARCBS.

PN25

If we could urn to the specific issues as outlined in the warning of 29 March correspondence, where it is headed: coagulation. The ARCBS states that factor 8 assays have been removed from Leo Raffoul's daily activities and these duties are a significant part of his duties, which he is not undertaking and further and I quote from the correspondence:

PN26

This simply cannot continue.

PN27

In addition ARCBS alleges that although Leo has been retrained in coagulation, he continues to have assay failures, which indicate a lack of competence. This issue stems from a meeting of 18 December, 2000 where the quality assurance manager, Meredith Smith, and the supervisor advised Leo that there were several error results which indicated a potential lack of competence. That matter was resolved in that further training on coagulation testing would be provided to Leo. The training was completed at around 28 January, 2001. At the next meeting, and this has what has been occurring since 18 December, there has been weekly meetings where the ARCBS has scrutinised the work of Leo and this has taken place right through until March this year.

PN28

The next meeting, which occurred on 27 December, Leo was taken through a number of procedural issues associated with the current task and it would appear from the record of the meeting that these issues were the subject of his ongoing training. Leo was to meet again on 2 January and that meeting was to review - sorry, that meeting reviewed his training and indicates that the training was still continuing and that progress would be reviewed again on 9 January. At that meeting, there were no further issues to report other than a brief reference to training and weekly maintenance of the MLA coag analyser and that Leo was advised that he was to be rostered on coagulation tasks to consolidate his training. A further meeting was scheduled for the following week where Leo was advised that there were no new issues for discussion.

PN29

So the point we are making there, Commissioner, is that there is an ongoing training regime that is being delivered to Leo and that in between that time, there was no further evidence, as we understand, of any errors associated with those coagulation factor 8 assay tests. At the next meeting on 23 January, there were no issues raised in relation to his performance. His supervisor also noted that there were no problems with his work. On 16 February Leo attended his next meeting with his supervisor and the QA manager. At this meeting, the discussion focused once again on the factor 8 assays again, and Leo was advised that the second run of tests, which he had been conducting, were below acceptable limits and once again we understand that those tests and those errors were initially discovered by Leo and that he had approached management for support in relation to resolving that problem.

PN30

And so in our view, Leo offered an honest and reasonable explanation which was rejected by the supervisor and a QA manager on account that in their opinion it was regarded as an operator error. The record of the meeting notes that as there have been a number of instances of problems when Leo performs factor 8 assay tests without supervision, that the decision was made then at that meeting on 16 February to remove Leo from the task and that he was no longer able to justify allowing - that he was no longer able to justify - I beg your pardon, she was no longer able to justify allowing Leo to perform this task. Leo advises me that since the errors which were reported initially in December that there had been no other documented errors in relation to those factor 8 assay tests until the February incident.

PN31

We would also assert at this point that the ARCBS is fully aware that there are instances of other scientists having made similar mistakes of this type fo test, but have not been subjected to the same degree of scrutiny as Leo has. Just to summarise this point in relation to the coagulation issues and the factor 8 assays, Commissioner, in our view the QA manager, Meredith Smith, has erred in making unnecessary and exaggerated statements in her correspondence dated 29 March about Leo's level of performance on the factor 8 assays. Based on her own instructions, at the meeting of 16 February, the QA manager instructed Leo that he was not to perform these tests.

PN32

In our view the QA manager has created the intolerable situation for herself and now seeks to hold Leo responsible for that situation, because they were the ones that instructed Leo not to perform those tests. Now, they are saying in that correspondence that this is an intolerable situation and cannot continue. We also reject the QA manager's assertions that Leo has continued to have assay failures out of a possible, approximate 30 or more factor 8 assay tests there have been two reported instances of error which were based on Leo's own reporting of the errors. We maintain that this level of error whilst not condoning it, is no less significant than other testing areas which occur from time to time when this work is performed by other employees.

PN33

If I can refer to the calibration issues, Commissioner. The performance issues relating to the calibration tests concern Leo's alleged failure to properly follow maintenance procedures. These issues are referred to in the 29 March correspondence and relate back to instances in January 2001, which were reported at a meeting between the QA manager and Leo on 2 January. To our knowledge, there have been no recorded instances of Leo continuing to incorrectly calibrate the specific machines. He has continued to undertake those duties and at the time, back in January, his explanation was that he thought he was understanding the calibration procedures.

PN34

He maintains that he followed the correct procedure and that if the procedure was incorrect, it was a genuine misunderstanding. According to the ongoing review meetings between Leo and the QA manager, and the supervisor, there were no further problems recorded and that no further action was intended to be taken against Leo over those calibration procedures. In our view, Commissioner, these assertions are baseless and illustrate the continual undermining of Leo's ability to perform his duties in an environment free from scrutiny and intimidation. We further assert that it was grossly unreasonable for the QA manager to resurrect an issue which was three months old and had already been discussed and resolved at a meeting on 2 January.

PN35

In conclusion to these matters concerning the factor 8 assays and the calibration, we also refer back to our opening statements concerning the Federal Court judgment, which is quoted in the ARCBS return to work plan, which states:

PN36

If competency is not demonstrated within the defined training period, but can be remedied, it is the responsibility of the supervisor to assist the employee to determine how and in what manner the job or task is done.

PN37

In our view, the remedy relied on by the ARCBS in Leo's case, Commissioner, is to issue a warning on baseless allegations and that it is all due to Leo's level of competence. In our view, Commissioner, this is an example of ..... practice to resolve what could have easily been resolved through general discussion and ongoing support from the ARCBS management. I would like to make some submissions in relation to the issues concerning lawful instructions.

PN38

THE COMMISSIONER: What do you actually seek, Mr Megennis?

PN39

MR MEGENNIS: We will be seeking, Commissioner, that the warnings be withdrawn.

PN40

THE COMMISSIONER: Right.

PN41

MR MEGENNIS: And that the training as required by the return to work plan is properly implemented and that Leo is placed in a situation where he is free from this form of intimidation and continual scrutiny of his work performance to enable him to properly perform his duties in a way that he was previously used to prior to his termination and subsequent reinstatement in 1998.

[10.47am]

PN42

THE COMMISSIONER: Has there been any outside mediation?

PN43

MR MEGENNIS: Not that I am aware of. In the period from 19 December, 1998 to the present, there were, as contained in the return to work plan, provisions to enable Leo to undertake occupational counselling.

PN44

THE COMMISSIONER: Yes, I saw that.

PN45

MR MEGENNIS: But as I understand, that is not being provided by the ARCBS. I am not certain as to the reasons why, but certainly there has been none of that outside support provided at this stage.

PN46

THE COMMISSIONER: The reason why I asked what you seek and the subsequent questions from that, is as you are aware, the Commission's role is not to put itself in the place of management and if - and that is what it would be doing if - just say it accepted your argument and issued appropriate orders that the warning on Mr Raffoul's file be deleted, it would be doing that in a formal setting with arguments from yourself and from the Australian Red Cross and would be making a judgment without the opportunity to see whether or not there is some benefit; a, if counselling might be required, the benefit of Mr Raffoul going through counselling and; secondly, for the benefit of outside mediation between the parties without the adversarial role being taken to see whether or not there is some common ground that can be worked on between the parties without the necessity to issue written warnings and without the necessity, as you say, to have regular - I think you said weekly.

PN47

MR MEGENNIS: It has been weekly.

PN48

THE COMMISSIONER: Yes. Weekly monitoring of Mr Raffoul's work performance. And it may be that - and I must say, the Commission is thinking out loud without the benefit from hearing from the Red Cross, but it may be that that might be an avenue that the parties might be prepared to go down, where at the end of the mediation process, some report could be provided to the Commission from the mediator to say, well, we have reached some understandings collectively and this is the way in which we are going to progress and that might be monitored, say, on a quarterly basis or unable to reach some understandings because the parties are just so far apart and diametrically opposed any way, it needs to be referred back to the Commission for determination.

PN49

MR MEGENNIS: Well, we would certainly not be opposed to that suggestion from the Commission. I would think that an appropriate way of proceeding down that path would be for the ARCBS to actually withdraw its warning at this stage, so that the environment that the parties pursue is free from any degree of bias, you might say.

PN50

THE COMMISSIONER: Well, if that were the case, they obviously would need to reserve their rights to reissue that warning at some point - - -

PN51

MR MEGENNIS: I understand that.

PN52

THE COMMISSIONER: - - - if the whole broke down and then we are back to square one any way, I would think.

PN53

MR MEGENNIS: Well, I suspect that ARCBS will have a view on that. Whether they have any intention of withdrawing that warning, I guess it is subject to their submission this morning. In our brief discussions outside of the hearing this morning, ARCBS has indicated they are not prepared to withdraw that warning.

PN54

THE COMMISSIONER: It depends what was put to them. Whether it was being withdrawn unconditionally or whether it was being withdrawn to allow some other process to take place. They are two different scenarios, of course.

PN55

MR MEGENNIS: Well, the discussion was brief, Commissioner.

PN56

THE COMMISSIONER: I am sure it was.

PN57

MR MEGENNIS: It may be that they have a different view at this stage. Do you wish me to continue at this moment or?

PN58

THE COMMISSIONER: No, may be if we could, Mr Megennis, we could hear from Ms Healy representing the Red Cross and we will see whether or not my suggestion goes down in flames or whether there is some merit to it. Thank you. Ms Healy.

PN59

MR MEGENNIS: Thank you, Commissioner.

PN60

MS HEALY: Thank you, Commissioner. Your suggestion has not gone down in flames. Joe and I have just had a brief chat about it and we are willing to settle these issues in any way we can, but the ARCBS wants to put it quite clearly on record that they are not harassing Mr Raffoul nor have they and the matters referred to in the Federal Court matter are past history, as we see it, and we do not really want to revisit all of that history in this process, but we would like to say that there has been an appropriate counselling and performance assessment process. That there had been previous issues with Mr Raffoul and in, I think it was, September last year, in agreement with the union, we gave an absolute clean slate at ARCBS to Mr Raffoul.

PN61

He started in a new section in October with new supervisor, new manager and it was not until about late November/December that these sessions about performance started, so there was a clean slate. There was a new assessment, new supervisor and we believe that that is part of a very fair process that has been carried out. It is not intimidating, it is not harassing. It is part of day to day practice to try and get Mr Raffoul really up to the standard required of a Scientist Grade I. And that is an issue and we are not resiling from that. In terms of the carer's leave, that has not been rejected. What has happened with that is that a letter was sent to Mr Raffoul on 28 March seeking further information in regard to how this can happen in a way that allows the performance assessment and his training to continue, and also the organisational, operational requirements of the blood service to continue at an effective level.

PN62

And we still have not got those kinds of responses. As part of that process, because we did get a statement from Mr Raffoul's doctor, Dr Wells, I phoned Dr Wells and we had a discussion and there is some agreement that we could work with Leo in finding ways of resolving the issue of caring for his father long term.

PN63

THE COMMISSIONER: Right.

PN64

MS HEALY: There has been a history of great blocks of leave each year since application in '99, which was withdrawn because of the previous case - '95 and then a big block in '99/2000/2001 and we really just cannot continue it, ARCBS to be giving someone somewhere between three to six months off every year to take leave of one description or another. It is just operationally impossible. It costs an enormous amount to retrain Leo when he comes back and to retrain someone to go into that position short term.

PN65

THE COMMISSIONER: Were these related to Mr Raffoul's father's condition or were they just - - -

PN66

MS HEALY: This is the first - this particular large block is the first related to his father's condition.

PN67

THE COMMISSIONER: So what were the other blocks related to?

PN68

MS HEALY: The other blocks were related to some leave without pay. Some log service leave. Some accrued recreation leave. It is - - -

PN69

THE COMMISSIONER: I am not quite sure how you complain about that. I mean, both are statutory entitlements.

PN70

MS HEALY: Absolutely and we are not complaining about statutory entitlements at all, Commissioner. We would be absolutely in favour. In fact, part of the reason the 27 days which Mr Megennis referred to were asked to be taken is because the ARCBS actually has a policy of promoting the use of recreation annual leave. We do not want that built up in blocks, but what I am saying is we also do not want a situation where each year someone is coming back asking for large chunks of leave in the middle of the year. It is problematic.

PN71

THE COMMISSIONER: But this leave, put aside the accumulation of long service leave and annual leave, if they do not take it, it becomes an ever accumulating debt, of course.

PN72

MS HEALY: Yes.

PN73

THE COMMISSIONER: So you are out of pocket any way.

PN74

MS HEALY: Yes.

PN75

THE COMMISSIONER: Is this unpaid leave that is being - - -

PN76

MS HEALY: This bit that is being applied for - - -

PN77

THE COMMISSIONER: No, not the current lot that is related to Mr Raffoul's father, as I understand it.

PN78

MS HEALY: Yes.

PN79

THE COMMISSIONER: The previous groups.

PN80

MS HEALY: I will find out for you.

PN81

MR MEGENNIS: If I may just rise at this stage. My member indicates that there has been no periods of unpaid leave prior to - - -

PN82

THE COMMISSIONER: It has all been paid?

PN83

MR MEGENNIS: Sorry?

PN84

THE COMMISSIONER: It has all been paid.

PN85

MR MEGENNIS: As far as I understand.

PN86

THE COMMISSIONER: So it is an accumulation of various forms of leave.

PN87

MR MEGENNIS: Yes.

PN88

MS HEALY: I am being advised that a significant part of '93s leave, like 45 days, was unpaid, Commissioner, but we can check on that and we are trying to resolve these issues, so I really do not want to go and harp back on the past and we will move forward.

PN89

THE COMMISSIONER: Sure.

PN90

MS HEALY: But the issue I am making is that this is leave without pay. It is a huge chunk, but it is not - if this leave were 12 months leave without pay and Mr Raffoul were to come back at the end of that time and we would start the retraining process again, we could also train a replacement for him in that time, which is a cost to the organisation, but at least you get 12 months out of that person. In five months, you get the training of about a month or six weeks and then you have got that person there, then they go back to somewhere else and you have got to recruit them in. It is a huge difficulty.

PN91

THE COMMISSIONER: Right.

PN92

MS HEALY: We would be happy for the Commission to assist us in any way we can to conciliate or mediate this matter. As I said before, we are not trying to make it difficult for Mr Raffoul. It is not personal. It is not harassment. It is not intimidation. The past is the past. There has been a clean slate, but there are significant issues of competency to do his work at his level and the reason there are weekly meetings on that is because the supervisor is trying to support Mr Raffoul through this. This is not about constructively dismissing or dismissing Mr Raffoul in any other way. It is just simply not about that and I can give the Commission's commitment to that from the ARCBS.

PN93

We would not withdraw the written warning unless there was a basis for it and if that basis were that we were acting in good faith during a mediation process, then I am sure the ARCBS would consider that. The other thing is, my understanding is that Mr Raffoul is using taking access to the EAP program that is provided by the ARCBS and that is external counselling and mediation as you referred to.

PN94

THE COMMISSIONER: Right.

PN95

MS HEALY: The other thing is that Mr Raffoul has been a qualified scientist for over 10 years and the issues with the calibration and the assays, because of that background and because of the training he has had and the skills that he would be expected, he is performing below those expected levels for the Scientist Grade I. I mean, that is well documented. The other thing is that there is a certified agreement with a dispute procedure in it and we really would have expected that the union would have come to us. Mr Raffoul has known all along he - that the union is welcome in the ARCBS in any of the consultations. He could have requested that. It has always been made clear to him that it is open to union involvement and we still say that today.

PN96

If the union wants to come back to us without even going through the dispute settlement procedure and talk about how we can best address this issue, we are happy to do that.

PN97

THE COMMISSIONER: You said earlier that Mr Raffoul is going through work counselling, is that right, that is in regards to his performance and so forth?

PN98

MS HEALY: I do not know. Because it is confidential, I do not know the nature of it, but EAP generally covers all gamuts of counselling and rehab.

PN99

THE COMMISSIONER: Personal counselling and so forth.

PN100

MS HEALY: Personal or work. It can be either or both and that is provided free of charge by the ARCBS.

PN101

THE COMMISSIONER: Okay, thank you.

PN102

MS HEALY: Thank you, Commissioner.

PN103

THE COMMISSIONER: Thank you. Mr Megennis - can we just go off transcript for a minute.

OFF THE RECORD

PN104

THE COMMISSIONER: The matter currently before the Commission is not a simple matter and does have some complexities, particularly in relation to the application of leave by Mr Raffoul and the quantum of leave that may be required by Mr Raffoul and what may be convenient for the Australian Red Cross blood service. The Commission would intend to issue the following recommendations. Firstly, on the application for leave issue, there are a number of questions raised in correspondence dated 29 March, 2001 addressed to Mr Raffoul and signed by Ms Meredith Smith, Quality Manager. Some of those questions have been answered in correspondence addressed to whom it may concern, dated 24 March, 2001 signed by Dr Michael Wells.

PN105

If the correspondence from Dr Michael Wells does not address in full some of those questions raised in the correspondence from Ms Meredith Smith, then the Australian Red Cross blood service needs to identify as a matter of some urgency as the Commission understands, given the date which the leave is intended to be taken from, with Mr Raffoul those questions that need some more detail. The Commission does not that due care must be noted that due care must be taken by the parties in Mr Raffoul answering those questions, for if pressed too hard - it does not make sense, but I will fix it up, those questions can become intrusive.

PN106

Secondly, on the issue of - in regards to that issue, if the six months period - the Commission understands one month paid, five months unpaid period is not to be granted, then Mr Raffoul needs to consider whether or not a 12 months period, again understanding one month would be paid, 11 months would be unpaid, might be more appropriate in order to deal with the issues relating to Mr Raffoul's father. Secondly, the Commission understands that Mr Raffoul has made alternative arrangements in regards to counselling. The Commission would recommend that that continue. Mr Raffoul understands that he is required to advise this Australian Red Cross Blood Service of any time that may be required to have off to attend those counselling sessions.

PN107

He is not required to indicate the detail of those counselling sessions, nor is the employer entitled to inquire as to the nature of those counselling sessions. Three, it is recommended that the parties jointly agree on a private mediation service, which is to be paid for by the Australian Red Cross Blood Service to assist the parties in addressing all the issues relating to the employment of Mr Raffoul. Fourthly, the Commission would recommend that in order for the above to proceed in good faith, that the written warning that has been issued to Mr Raffoul be withdrawn on the very clear understanding that the Australian Red Cross Blood Service maintains their rights to re-issue that written warning if the above processes prove not to be fruitful.

PN108

And, fifthly, in regards to the performance assessment process, obviously that needs to be taken into consideration as to whether or not Mr Raffoul is given six months leave of absence or whether he is given 12 months leave of absence. Whatever the period of absence Mr Raffoul accepts, upon recommencement of employment at the end of that leave of absence period, the Commission would expect that the performance assessment process would continue. Are the parties clear on that? Mr Megennis?

PN109

MR MEGENNIS: Yes.

PN110

MS HEALY: Yes, Commissioner.

PN111

THE COMMISSIONER: Yes, Ms Healy. Thank you. The Commission remains available to assist the parties if they deem it necessary. The Commission stands adjourned.

ADJOURNED INDEFINITELY [11.30am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #HSUA1 AUSTRALIAN RED CROSS LETTERHEAD PN16
EXHIBIT #HSUA2 FEDERAL COURT DOCUMENT PN16
EXHIBIT #HSUA3 RETURN TO WORK PLAN PN18