C2001/4182, Transcript of Proceedings [2002] AIRCTrans 1119 (5 April 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N VT03265

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GAY

C2001/4182

AUSTRALIAN LIQUOR, HOSPITALITY
AND MISCELLANEOUS WORKERS UNION

and

METROPOLITAN AMBULANCE SERVICE

Notification pursuant to section 99 of the Act
of a dispute re alleged failure of MAS to follow
disciplinary procedure resulting in termination
of employee

MELBOURNE

11.05 AM, TUESDAY, 14 AUGUST 2001

PN1

MS B. FORBATH: I appear on behalf of the Australian Liquor, Hospitality and Miscellaneous Workers Union, together with MR S. McGHIE.

PN2

MS A. McKENZIE: I appear, with MR A. WATSON and MR D. HOWELL, for the Metropolitan Ambulance Service.

PN3

THE COMMISSIONER: Thank you. Yes, Ms Forbath.

PN4

MS FORBATH: Commissioner, just at the outset I notice that this matter has been listed as a section 99 notification of industrial dispute between the Australian Liquor, Hospitality and Miscellaneous Workers Union and the Metropolitan Ambulance Service.

PN5

THE COMMISSIONER: Yes.

PN6

MS FORBATH: It was my intention in the letter that was sent to the Registrar for it to be notified under section 170LW of the - - -

PN7

THE COMMISSIONER: Yes, I could see that.

PN8

MS FORBATH: - - - Workplace Relations Act as, in a sense, an outworking of the dispute resolution process. So I just wish to make that point clear.

PN9

THE COMMISSIONER: Yes. I think that that is - having re-read your letter, I think that is a Registrarial slip. It certainly is not notified under section 99 and I will treat it as if it is an application under section 170LW, Ms Forbath.

PN10

MS FORBATH: Thank you. This is a case of Mr Rowan Dent who was dismissed by the Metropolitan Ambulance Service on 7 August. He commenced the diploma course, Diploma of Ambulance Paramedic Studies, as a student ambulance paramedic in March of this year. Commissioner, when student ambulance officers commence their training, they also commence employment with an ambulance service, in this case the Metropolitan Ambulance Service.

PN11

One of the conditions of continued employment for student ambulance paramedics is that they make a successful progression through the course and in each of its stages. If a student ambulance paramedic fails in the course and is not able to continue due to that failure, then he or she then immediately ceases to be an employee of the ambulance service. If the ambulance service chooses to dismiss the student ambulance paramedic for other reasons other than inability to successfully complete the course and terminate their employment, they are then automatically excluded from the course of study as well.

PN12

So in notifying the Commission of the urgency of this matter, one can see that not only has this person lost his livelihood, he has also lost his opportunity to continue in his studies at Monash University. So he has suffered in a double way as a result of MASs actions.

PN13

The key issues in the dispute here, Commissioner, are that as a student ambulance paramedic he signed a document entitled: Conditions of appointment, when he was first taken on by the ambulance service and he signed the document in December last year which contained a clause providing for a probationary period of six months. And it was during that probationary period that his progress in the course was to be reviewed and appraised from time to time.

PN14

THE COMMISSIONER: Did you say progress in the course?

PN15

MS FORBATH: Yes.

PN16

THE COMMISSIONER: Yes, thank you.

PN17

MS FORBATH: Progress in the course, and his ability to successfully complete the various stages of the course will be examined during that time and, if the person has not successfully completed or successfully gone through that part of the course during that six monthly probationary period, then the employer takes the right to terminate the employee's employment.

PN18

The issue of the probationary period for ambulance paramedics is also referred, Commissioner, to at page 84 of appendix F of the current 1997 enterprise agreement for the Metropolitan Ambulance Service and, once again, it refers to the fact that the employee has this period of six months probation during which their progress through the course will be appraised. Now, as I said before, continued employment is contingent on successful completion of the course.

PN19

Now, without going into all of the detail here on transcript, the evidence from the reports that have been supplied to the union from clinical instructors, team managers and clinical support officers indicate that this particular student was making progress and had, in fact, successfully completed stage 1 of the diploma and was in stage 2 when he was terminated. Now, that is not to say that he wasn't having some difficulties in some areas but they were - and it is acknowledged in writing and in terms of his actual gradings that he received that he was progressing, and he wasn't failing in any particular area. There are - in terms of his driving, he did have to sit for a supplementary test which he did pass.

PN20

Now, it was interesting in June of this year he received a letter from Metropolitan Ambulance Service stating that if he did not complete the first stage 1 of the course successfully, he could be or would be terminated. However, he has passed stage 1. The latest clinical instructors' reports indicate a very significant improvement in his work and there isn't any, in our view, significant body of evidence to demonstrate that he has not successfully completed his academic and on road requirements at this time.

PN21

The reason given for termination by the Metropolitan Ambulance Service is that he - is to do with his attitude and his behaviour, but to this day we have not really managed to establish very much substance to that. There is one or two incidents which we are prepared to discuss in conciliation which we don't believe constitute grounds for terminating this employee's employment.

PN22

I draw your attention also, Commissioner - this is really the basis on which I notified the matter to the Commission - was that at clause 53 of appendix F we have disciplinary procedures. Under those disciplinary procedures a series of warnings must be provided to an employee following investigations and representations by the employee and by the employee's advocate. There is, of course, a provision within that that more serious and wilful misconduct the employer may dismiss without notice. However, in this case Mr Dent is not accused of serious and wilful misconduct.

PN23

It would be our argument that a student ambulance paramedic, although they are in a probationary period as such, is not exempt from the disciplinary procedures, or the employer is not exempt from complying with the disciplinary procedures in regard to student ambulance paramedics in the first six months of their employment. We say that if the employer had grounds for concern about this employee's behaviour, then they should properly have issued a disciplinary warning or a succession of disciplinary warnings. I am not at this stage conceding that we would not have challenged those but that was the course of action that was open to the employer if the grounds for such disciplinary warnings could be substantiated.

PN24

So, Commissioner, we are here today because we say that the employer has not complied with the disciplinary procedures; that there aren't any substantive reasons for the termination of this employee. He has made progress through the course. He has passed stage 1, and we are strongly of the view that this student ought to have his job back and be given another chance to work his way through the remainder of the course. It is a very serious situation that he now finds himself in in that he cannot pursue this course any longer, given the terms in which that course is established and funded by the Government. It depends upon being employed by either the Metropolitan Ambulance Service or the Rural Ambulance Service.

PN25

So, Commissioner, for the purposes of today's proceedings, the union would be seeking the assistance of the Commission to endeavour to conciliate a settlement and we would be willing, if the Commission sees fit, to go into conference to proceed along those lines. Thank you.

PN26

THE COMMISSIONER: Yes. Thanks, Ms Forbath. Yes, Ms McKenzie.

PN27

MS McKENZIE: Thank you, Commissioner. Commissioner, if I can just say from the outset there are some procedural jurisdictional issues I wish to raise but, as a flagging process, if the matter was to proceed any further from today's proceedings I note Ms Forbath has indicated that, even though it was - the application actually refers to a section 99 application, she sought the application under section 170LW with respect to the settling and - disputes settling procedures outlined in the award I think.

PN28

The powers of the Commission, as outlined in part VI, dispute prevention and settlement procedure, and section 88B and section 89 of the Workplace Relations Act in preventing and settling of disputes looks at the issue of conciliation as a last resort arbitration. We say that the scope of the industrial disputes are normally limited to allowable award matters as defined in 89A, and minimum rates award - - -

PN29

THE COMMISSIONER: Do you really; in relation to a matter generated through a notification under section 170LW as to the proper application of an agreement?

PN30

MS McKENZIE: With respect, Commissioner, I think we need to look at I suppose the issue of I suppose coverage of that dispute. But with respect to the section 99, I would suggest that the Commission's powers are limited. Ms Forbath is saying - is seeking the Commission to deal with a breach and interpretation of a provision of the award. As I said, I am just flagging those. If it were to proceed to arbitration, we would seek to be able to put further submissions in relation to that.

PN31

THE COMMISSIONER: Yes, Ms McKenzie.

PN32

MS McKENZIE: Ms Forbath has indicated that Mr Dent was covered by a probation period.

PN33

THE COMMISSIONER: It is only because I haven't seen you and Ms Forbath for about two or three weeks that I am going to take that submission placidly, but I understand what you say. Now, go on, Ms McKenzie.

PN34

MS McKENZIE: Thank you, Commissioner. And Mr Dent and the union, on behalf of Mr Dent, has the ability to notify the Commission under the Workplace Relations Act, division 3 with respect to termination of employment that deals specifically with unfair dismissal applications, and I note in this case Ms Forbath hasn't decided, on behalf of Mr Dent, to do that. With respect to the process that has occurred, there has certainly been a number of meetings between Mr Dent and MAS in relation to issues dealing with attitude, behaviour and inappropriate actions. Ms Forbath has indicated that a lot of the issues - well, I suppose her submission goes to the issues of clinical competency but in terms of looking at the suitability to an employee, we not only look at the clinical component but we also look at attitude, behaviour issues. And in respect to the six month probation period, we certainly looked at that and we found that Mr Dent, unfortunately, wasn't a suitable employee and took the action that we did.

PN35

I can go through if you wish, Commissioner, a chronology of events that have taken place since his employment to give you a background as to what has occurred before we go off record into - - -

PN36

THE COMMISSIONER: I wonder whether it might not be easier or faster to do it in conference, Ms McKenzie.

PN37

MS McKENZIE: Okay. I haven't - either way.

PN38

THE COMMISSIONER: All right.

PN39

MS McKENZIE: I will leave it up to you, Commissioner.

PN40

THE COMMISSIONER: Well, in going off the record, I indicate to both you, Ms Forbath, and Ms McKenzie that if you want to put something on the record in a little while, I would be unlikely to deny that request. We will go off the record now.

NO FURTHER PROCEEDINGS RECORDED [11.25am]