C2002/2384, Transcript of Proceedings [2002] AIRCTrans 2080 (11 June 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 VT04167
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2002/2384

CPSU, THE COMMUNITY AND PUBLIC
SECTOR UNION

and

OMBUDSMAN

Notification pursuant to section 99 of the Act
of a dispute re an offer of part-time employment,
including an issue of the employer withdrawing an
offer of employment after it had been notionally
accepted and whilst the employee was seeking
clarification on certain matters

MELBOURNE

11.06 AM, MONDAY, 27 MAY 2002

PN1

MR M. RICHARDSON: I appear in this matter for the Community and Public Sector Union; appearing with me is MS DEZOYSA.

PN2

MR B. LAWRENCE: I seek leave to appear on behalf of the Ombudsman.

PN3

THE COMMISSIONER: Thank your Mr Lawrence. Mr Richardson, do you have any objections to Mr Lawrence seeking leave.

PN4

MR RICHARDSON: No, we don't have any objections, Commissioner.

PN5

THE COMMISSIONER: Thank you. Leave is granted, Mr Lawrence. Yes, Mr Richardson.

PN6

MR RICHARDSON: This matter is a dispute about the rights of Ms Dezoysa. Ms Dezoysa was employed back in September 1996 as a casual employee working 30.5 hours per week and continued in employment on a series of so-called casual contracts which were - essentially gave her continuing employment from 11 September 1996 through to December of 2001. Now, these are, in our view, casuals in name only. They generally have ongoing duties, have continuous hours and as you can see from what we have said about the length of employment, they are - in no way can they be nominated as casuals meeting intermittent needs.

PN7

These people have been employed on this basis for some time. Now, in 2000 an agreement was reached between the union and the Victorian Government and one of the clauses in the agreement which - I have picked up the current agreement but the clause is repeated in the existing agreement. I would like to pass a copy of that up. It is clause 13.5 in the current agreement and that is at page 17 of the agreement.

PN8

THE COMMISSIONER: Right.

PN9

MR RICHARDSON: And it is an attempt to regulate what had been happening over a period of time in the Victorian Public Service where casual employment, fixed-term employment had been rampant to the point where there was a significant portion of the workforce that weren't considered to be in ongoing employment but rather in fixed term or casual employment. Now, it spells out what casual employment is in (b) of that clause which is on page 18, that:

PN10

Employment of casuals is limited to meeting short terms work demands which are not continuing and would not be anticipated to be meet from existing staff levels or meeting specialist skill requirements which will not be required on a continuing or frequently recurring basis. Casual employees will not be for less than three consecutive in any day except where the employee works from home by agreement or in exceptional circumstances.

PN11

So (b)(i) and (ii) define the intent of the parties as addressing the issue of casual employment. Now, as a result of that directions went out from the Executive Director of Industrial Relations Victoria about converting people into ongoing employment and in light of the spirit of the agreement a process was undertaken across the public service and across agencies to convert a significant number in excess of, well in excess of a thousand who had status of casual or fixed term employment but weren't genuinely meeting the requirement as per the agreement.

PN12

Now, what the Ombudsman and its office did was then to advertise a number of positions some at the VPS4 classification and some at the VPS5 classification. Ms Dezoysa was employed as a VPS5 and her - the rate on which her casual loading was based was clearly at VPS5. Now, there is provision for and Geoff Farey urged secretaries and agency heads to exercise their discretion and that the merit process wouldn't be compromised by directing appointing employees who had been operating at a fully effective level for at least six months.

PN13

However, the Ombudsman office decided to interview a range of people in their office to determine who would be offered the various appointments and they considered outside applicants as well. Now, I would like at this stage to hand up a chronology that has been prepared by Ms Dezoysa.

PN14

THE COMMISSIONER: What is the issue?

PN15

MR RICHARDSON: Okay. The issue that Ms Dezoysa was offered a position and the formal offer was conveyed in a letter dated 11 January but passed to Ms Dezoysa on 29 January. It offered her a VPS5 position although she had been told verbally before that she had missed out on the VPS5 and she was to be offered a VPS4 and the commencement salary that was offered to her was below the VPS5 band but was in the VPS4 band so we are not quite sure what went there.

PN16

Ms Dezoysa indicated that she was prepared to accept the position but she felt that she shouldn't have a drop in salary as a result of the conversion. The salary that she was on was within the band of VPS4 and was available to be offered. Because Ms Dezoysa wanted to continue to negotiate the salary it was suggested that she hadn't officially accepted the offer of employment and she is now in a sort of limbo status as to the terms of her employment.

PN17

THE COMMISSIONER: So is the offer of employment still there or is it withdrawn?

PN18

MR RICHARDSON: Well, on 20 March, Ms Dezoysa received a letter saying that the offer had been - saying that Ms Dezoysa had rejected the offer and then she was given a further offer of a casual contract to continue the employment. A letter was sent asking that be kept open for further consideration and that was not agreed to. Ms Dezoysa has pointed out in the chronology that was handed up, at page 3, Ms Dezoysa stated her position on 4 December 2001 before - when she had been verbally advised and she also told Dr Perry, the Ombudsman and Mr Shanahan who was a senior - the admin manager, that that was the case but the letter on 20 March alleges that she had rejected the offer and to deal with the situation, she has been given a further casual contract.

PN19

So the issue, we say, is that she should have ongoing employment and it should be at least at the level of remuneration that she was on prior to this process starting, that that level is, regardless of whether it is a VPS4 or VPS5 position, the level that she was on is within the parameters of either band because of the overlapping nature of the bands and that is what we believe should occur and we would be happy to go into conference on the issue if the Commission so determines.

PN20

THE COMMISSIONER: Why on 13 February did the legal firm of Holding Redlich get involved?

PN21

MR RICHARDSON: Why?

PN22

THE COMMISSIONER: Yes.

PN23

MR RICHARDSON: Because there was still the question about the appropriateness of the salary that had been offered and the other thing that was at issue was the question of the letter of 11 January.

PN24

THE COMMISSIONER: That was received on the 29th?

PN25

MR RICHARDSON: Yes.

PN26

THE COMMISSIONER: Right.

PN27

MR RICHARDSON: Which talked about a VPS5 position.

PN28

THE COMMISSIONER: Right.

PN29

MR RICHARDSON: But offered a salary which was less than the minimum rate for a VPS5 position as the full time equivalent salary.

PN30

THE COMMISSIONER: Right. Okay. Thank you. Yes, Mr Lawrence.

PN31

MR LAWRENCE: If the Commission pleases, could I hand up a bundle of documents which comprises correspondence in this matter and I think it is easier to take you through that and indicate how some aspects of this matter developed.

PN32

THE COMMISSIONER: Thank you.

PN33

MR LAWRENCE: As you have heard, Ms Dezoysa has been engaged on a series of contracts over a period of time and you will see on 15 November or by a letter dated 15 November which is at the front of these documents, the Ombudsman makes reference to her being offered a position at VPS level 4. I will just give you a moment to read that through, that first page.

PN34

THE COMMISSIONER: I have read it, thank you.

PN35

MR LAWRENCE: Yes. So she had applied for a VPS5 position. She had failed in her application. A VPS4 position became available and she was offered that. So that was the position at 15 November. The next document, Commissioner, is a letter of 19 November. She writes to the Ombudsman and makes it clear that she is not accepting the offer of VPS4 and she says under the second dot point:

PN36

I know formally request that my casual position be converted to an ongoing position within this office at an equivalent ongoing rate of pay. I thank you for your offer of VPS4 position. Whilst the issue of conversation of my casual position is being resolved, I shall continue to consider your offer.

PN37

And then the Ombudsman writes a letter dated 21 November 2001 and he says in the second paragraph:

PN38

I am not prepared to consider converting your present part time position to an ongoing position. Please let me say why -

PN39

and then he goes through and gives a series of reasons for that. I don't I need, at this stage, Commissioner, to go into all the reasons but I will just give you a moment to skim through that letter.

PN40

THE COMMISSIONER: No, I think you have - - -

PN41

MR LAWRENCE: You will see, Commissioner, that he is concerned that the offer was made five weeks before and there still hadn't been a response and he didn't want the situation to continue unresolved and perhaps I should say, at this stage, in November, the contract that she was engaged on was about to come to an end. It was to come to an end, I think, on 22 December but just before Christmas. And then after Christmas there was correspondence in early January which I will come back to and I haven't reproduced here, Commissioner.

PN42

That correspondence is referred to in a series of letters which passed between the parties. The letter from Holding Redlich that you have already heard about is dated 13 February. Two points need to be made about that, Commissioner. The first one is that it becomes apparent that Ms Dezoysa has not accepted the offer contrary to what was said a couple of minutes ago and secondly the - say the status of the position that was offered to her, whether it be a VPS4 or VPS5 had already been resolved at that stage.

PN43

But in any event the Holding Redlich letter sets out all of the agreements that she has been a party to, it refers to the letter of 21 November. At the top of page 2 it says that the full time equivalent rate would be $62,624 and points out that the position that had been offered to her of VPS4 or at least a VPS4 level would be in excess of that figure and there is a question there at point 5 raised about the rate that she was offered of $55,000, it said that that is inadequate, that should be a higher figure. She should be offered that higher figure.

PN44

Of course that, we say, is consistent with what Mr Dezoysa had been doing over a period of time. She was, in effect, sitting on the offer and time was running and she had not accepted the offer at $55,000, at VPS4.

PN45

THE COMMISSIONER: Hang on. The sums in converting Ms Dezoysa hourly rate to the equivalent full time rate, is that discounted?

PN46

MR LAWRENCE: The discounted rate it is the - I think that - I wasn't able to get quite the same arithmetic of the same answer on the arithmetic, Commissioner, but I think that $62,624 is the discounted figure.

PN47

THE COMMISSIONER: Right.

PN48

MR LAWRENCE: Or it is an attempt to find the discounted figure because she was on about $39 an hour and that included a 20 per cent loading.

PN49

THE COMMISSIONER: Right.

PN50

MR LAWRENCE: If you take the amount off and then calculate it through.

PN51

THE COMMISSIONER: Right.

PN52

MR LAWRENCE: It is, in any event, more than the $55,000, but the important thing as was pointed out by the Ombudsman in the letter of 21 November is that it was not a conversion of a casual position into an ongoing position.

PN53

THE COMMISSIONER: No, because the VPS5 position was not there.

PN54

MR LAWRENCE: Yes. So she - and we say that by this time, by the time the letter was written by Holding Redlich, there was no confusion about the level because she had actually made an inquiry on 31 January of the human resources people and had been told that in fact it was a VPS4 position and my instructions are that that was pointed out to her by Ms Theologus on 31 January and that she accepted that that was so.

PN55

PN56

So the point that Holding Redlich are making is that she should be converted from casual to ongoing and she should receive the same salary, that was basically what Holding Redlich were saying in the letter and there is some reference to the certified agreement to a matter that Mr Richardson referred to today, that is a circular from Mr Farey dated 9 February 2001. The next document in the bundle, Commissioner, is the Ombudsman letter dated 19 March 2002, and he deals with the issues that are raised in the Holding Redlich letter. The first one is about the conversion of positions and he says and this is about half way down the first page:

PN57

Firstly at no stage have I agreed to convert Ms Dezoysa's casual employment position to an ongoing position. My refusal to agree to her request for such action was clearly spelt in my letter on 21 November 2001 -

PN58

and then he quotes passages which I think you have already read, Commissioner and then at the top of the page, sorry, page 2, top of page 2, he says:

PN59

The decision to advertise VPS5 and/or VPS4 positions in his office in 2001 was based solely on the need to enable the office to more effectively undertake identified functions and duties.

PN60

And I won't read the rest of that. Under the heading "Unsuccessful application for VPS5 position", it refers to the selection process and the finding by the selection panel that she didn't succeed in her application for the VPS5 position and under the heading "Offer of VPS4 position", it is set out there that she was considered as being suitable for appointment to a VPS4 position and the VPS4 had become available as the result of an occupant being promoted to a VPS5 position. There is a reference to the offer being made verbally during October 2001 and the Ombudsman states in that paragraph, that is the third last paragraph on page 2, that there were relativity issues within the office.

PN61

THE COMMISSIONER: Yes.

PN62

MR LAWRENCE: And that he required an acceptance and he says:

PN63

To my knowledge Ms Dezoysa has not given formal acceptance to our appointment offer as requested in my letter of 11 January.

PN64

That is a reference to the correspondence you heard of before, Commissioner, and then over the page at page 3, although under the heading "Acceptance of offer" etcetera, reads:

PN65

As Ms Dezoysa has not formally advised of her acceptance of the offer as required under the stipulated term, no agreement has been struck for her ongoing employment in the VPS4 position. ...(reads)... My position, as you know, is that Ms Dezoysa is not entitled to such a position.

PN66

And under the next heading, it goes on:

PN67

As my offer for appointment to the ongoing VPS4 position with a salary of $55,000 has not been accepted, I now formally withdraw the offer. With effect from today's date I am prepared to offer Ms Dezoysa further employment with my office on the basis of a casual employee on the same terms and remuneration as her previous separate engagements by this office. ...(reads)... I have now instructed the agency to make a lump sum payment to her to compensate for the difference between the hourly rate paid for the period involved and her hourly remuneration level applying as a contractor/casual employee at 21 December.

PN68

And then the last document, sorry, it is not the last document, the next document is a memo of 27 March to Ms Dezoysa and the Ombudsman says:

PN69

As you are aware we need to formalise your employment on a casual basis with this office. ...(reads)... If you wish to have a further casual contract of six months this needs to be formalised immediately.

PN70

And then at the next document is a letter dated 4 April 2002 from the CPSU. Second paragraph of that:

PN71

It is the understanding of the union that Ms Dezoysa has not rejected the offer put by your office and your assumption that she has done so is incorrect.

PN72

Now, Commissioner, I think this letter was attached to the dispute notification so you would have had an opportunity to read this but perhaps I could just skip the next couple of paragraphs and go to the second last one on page two:

PN73

Should your office not agree to keep the offer of ongoing part time employment open to Ms Dezoysa to fully consider not facilitate payment as per the enterprise agreement and not expedite her approval of leave this week, we will have no option but to refer the matter to the Australian Industrial Relations Commission for resolution.

PN74

The next page is simply a page that corrects something that appears in error at page two of that letter and then 8 April is the memorandum, the date of the memorandum that next appears in the bundle. It is actually headed "draft" at the top right hand corner but I am instructed that it went to her in this form and it indicates that as a casual she has to fill in time sheets and concludes:

PN75

I again reiterate that you currently are required to sign a further casual contract. I also direct that you are immediately to fill in time sheets for all future work carried out.

PN76

So the position is that she has been treated as having been engaged on another one of these contracts since late December and she has been paid as a casual, the adjustments have been made and she has refused to sign the contract which is, of course, custom and practice in this area and in the submission of the Ombudsman, this is a case where quite clearly she is not employed as a VPS4 or in an ongoing position. She needs to regularise her position and consistent with what the Ombudsman has said to her, she will be engaged under a contract up until the end of this financial year.

PN77

The Ombudsman has also told her that it is his expectation that there will be work available in the second half of this year and he is prepared to enter into another agreement with her, a separate agreement that won't be continuous with the current agreement but he has also told her that he can't give any guarantees of any employment beyond that contract, so he can't, at this stage, give any guarantees or indicate that she would have any expectation of employment beyond the end of this year. So that is the position, Commissioner, and we would, for the reasons I have indicated, seek the assistance of the Commission in having Ms Dezoysa enter into the contractual arrangements that I have referred to.

PN78

THE COMMISSIONER: So the VPS4 position is no longer there?

PN79

MR LAWRENCE: No longer there. It is not - the offer has been withdrawn.

PN80

THE COMMISSIONER: Right. And so the only work that is available is as it was prior to the offer being made, that is on a casual basis.

PN81

MR LAWRENCE: Yes.

PN82

THE COMMISSIONER: All right. What is generally the take up? Sorry, what is generally turnover where you might have positions becoming available?

PN83

MR LAWRENCE: I don't know the answer to that, Commissioner. I don't know what the position is, the expected position in relation to vacancies at the VPS4 level or for that matter at any other level.

PN84

THE COMMISSIONER: All right. Now, I note that there is a salary range in which a VPS4 can operate and it is 48,500 to 68,500 - close to 68,500 and the figure of 55 was deemed by the Ombudsman to be an appropriate rate, given you used the term the issue of relativities; that if it was too high there would be an argument - well, I would assume there would be an argument in terms of other staff who would be at a VPS4 level saying well hang on, why is Ms Dezoysa there and I am not. It is the snowball effect that we have got.

PN85

MR LAWRENCE: Yes.

PN86

THE COMMISSIONER: Yes.

PN87

MR LAWRENCE: Yes. The Ombudsman referred to that in one of his letters. He said there is a relativity question.

PN88

THE COMMISSIONER: That is right. He says it in a letter dated 19 March.

PN89

MR LAWRENCE: Yes. He has actually instructed me on those rates that are paid to other VPS4. I would prefer not to mention them now because it reveals what others are being paid, but could I say that his position is that it is, amongst other things, there is the consideration of relativities and 55 can be justified on the basis of relativities quite apart from any other considerations.

PN90

THE COMMISSIONER: Right. And anyone higher than that, there would be I suppose a range of criteria that they would have to meet; length of service might be one, ability, skills, knowledge. All those type of things.

PN91

MR LAWRENCE: Yes.

PN92

THE COMMISSIONER: Yes, okay, thank you.

PN93

MR LAWRENCE: Just one thing I should say in relation to the number of hours that Ms Dezoysa has been working. My instructions are that until December of 2001 she didn't have agreed hours and she worked the number of hours that she was available for. That is, how long she worked was up to her. Now, apart from saying that, Commissioner, I haven't got any detail on it and I can't give averages or anything else but that is one thing that we would contest that Mr Richardson mentioned earlier, but perhaps I think that is all I need to say save for one thing before I sit down and that is that I was just passed a note a short time ago that the turnover within the office is small.

PN94

THE COMMISSIONER: Small, yes. Okay, thank you. Mr Richardson, what do you hope to achieve?

PN95

MR RICHARDSON: We hope to achieve a VPS4 ongoing position at 30.5 hours per week on a salary of the 62,000 salary.

PN96

THE COMMISSIONER: VPS4 position is not there.

PN97

MR RICHARDSON: Well, our understanding is that the position hasn't been filled. Now, we would just like to - and unfortunately we haven't got copies I can make available but I can get copies of this document.

PN98

THE COMMISSIONER: Mr Lawrence, has the VPS4 position been filled?

PN99

MR LAWRENCE: I will get some instructions on that.

PN100

THE COMMISSIONER: Yes, Mr Lawrence.

PN101

MR LAWRENCE: I am instructed that there has been a VPS5 seconded to the office and that person is performing the work.

PN102

THE COMMISSIONER: Right, then you haven't back filled the VPS5?

PN103

MR LAWRENCE: No, I think the VPS5 is from outside the office.

PN104

THE COMMISSIONER: Okay.

PN105

MR LAWRENCE: That person has come in and filled - - -

PN106

THE COMMISSIONER: So he has come in so you haven't grabbed somebody from within to fill that. It is somebody from outside.

PN107

MR LAWRENCE: That is right.

PN108

THE COMMISSIONER: Okay, thanks. You were not able to get a VPS4?

PN109

MR LAWRENCE: I have just been given some instructions on that, Commissioner and there were considerations of budget and allocation of duties that made it appropriate for the VPS5 to perform that work. Now, to go any further would require me to get more instructions, Commissioner, but that is the substance of my instructions.

PN110

THE COMMISSIONER: Okay, thank you. What is the - Mr Richardson, what is the purpose of the letter of 10 December?

PN111

MR RICHARDSON: Well, if you look at the chronology that we handed up, Ms Dezoysa handed Dr Perry a letter confirming she accepted the position and outlining proposed hours of work. She asked when the position would take effect. Dr Perry stated that it would commence at the expiration of the current contract, okay? If you look back to the first page of the chronology, the 12th agreement ran out on 21 December. If we go to the documents that have been handed up on behalf of the - - -

PN112

THE COMMISSIONER: But wait on. The letter is dated 10 December. The correspondence from 21 November from Mr Perry to Ms Dezoysa indicates very clearly that she has until 29 November to accept the offer. Now, why wait? Why wait?

PN113

MR RICHARDSON: If you go back a page on the chronology, Ms Dezoysa told Dr Perry she needed more time and asked if she could get back to him on the following Tuesday, then there is a report of a meeting on 4 December with Dr Perry in the first instance and Mr Shanahan in the second instance.

PN114

THE COMMISSIONER: She says that Dr Perry agreed to a four-day week but did she accept the position as a VPS4?

PN115

MR RICHARDSON: I think they are on the document. To us, the logical chronology events is that she accepted, they took the letter as accepted and they then - Human Resources were directed to convert it - - -

PN116

THE COMMISSIONER: But she obviously didn't accept it because there is a letter dated 13 February from Holding and Redlich that disputes the salary, so what did Ms Dezoysa accept?

PN117

MR RICHARDSON: Well, we think she at worst accepted the - or it was taken that she accepted the offer at the salary because - - -

PN118

THE COMMISSIONER: But she didn't because the 13 February letter from Holding and Redlich says she didn't, she doesn't, because she disputes the salary, so what did she accept?

PN119

MR RICHARDSON: Well, she was asking for - she said she accepted the position, she was unhappy about the salary and what processes were there to go through internally to question about the salary but we say the Ombudsman's own letter, and they paint it in different terms, but the documents they handed up to you Mr Lawrence quoted:

PN120

Unfortunately, late last week I became aware that Human Resources Services has been incorrectly paying Ms Dezoysa since 24 December 2001.

PN121

So what we say has happened is that a range of conversations had gone on, Ms Dezoysa had indicated that she wanted the position, she was unhappy about the salary, the hours were worked out and someone notified Human Resources that it is a done deal and they started paying her. I think the document that wasn't included and we didn't hand up because we were trying to cut to the chase also reinforces - - -

PN122

THE COMMISSIONER: It refers to a letter of 22 January - sorry, 11 January 2002.

PN123

MR RICHARDSON: Yes, that is the one.

PN124

THE COMMISSIONER: Is that the one you handed up, is it?

PN125

MR RICHARDSON: I don't know whether we got to handing it up. I mentioned it and we were sort of cutting to the - - -

PN126

THE COMMISSIONER: Well, it is referred to in the letter dated 19 March in response to Holding and Redlich but it is not included in the bunch of documents.

PN127

MR RICHARDSON: I have got copies here.

PN128

THE COMMISSIONER: Okay, so it is a part time basis, a VPS5.

PN129

MR RICHARDSON: Yes. And that was the cause of the confusion.

PN130

THE COMMISSIONER: Well, hang on, the letter to Dr Perry of 10 December offers 30.5 hours. The letter of 11 January offers 30.5 hours, right? And that is an offer of VPS5 - - -

PN131

MR RICHARDSON: Yes.

PN132

THE COMMISSIONER: right, at 55,000 full time equivalent.

PN133

MR RICHARDSON: Yes.

PN134

THE COMMISSIONER: What is the issue? I must say I am having - it is either a bit late for me or I have too many cases too early but I am not quite sure what the issue is.

PN135

MR RICHARDSON: Well, we say that the offer was accepted back in December with the question was there a mechanism to determine the fairness or otherwise of the pay rate on it.

PN136

THE COMMISSIONER: But there is no mention. You see the letter dated 10 December says there is no mention about the pay rate. It says here, here is my offer, and the Ombudsman writes back on 11 January and says here you are, here is what is being offered, sign it and there is no signing.

PN137

MR RICHARDSON: Yes, because the offer is a VPS5 and is being offered at a salary below the then existing base of VPS5.

PN138

THE COMMISSIONER: Well, what is the base of VPS5?

PN139

MR RICHARDSON: 62,220.

PN140

THE COMMISSIONER: And that is the base of the VPS5?

PN141

MR RICHARDSON: That was the base at the time this was going on.

PN142

THE COMMISSIONER: Mr Lawrence, why would the letter of offer be less at base rate?

PN143

MR LAWRENCE: Well, because the error was the designation of VPS5.

PN144

THE COMMISSIONER: It should have been a VPS4.

PN145

MR LAWRENCE: VPS4.

PN146

THE COMMISSIONER: So when was that clarified?

PN147

MR LAWRENCE: That was clarified certainly by 31 January. These documents or the personnel arrangements are made by the Human Resources people. They drafted the document and - - -

PN148

THE COMMISSIONER: Well, this is the letter dated 11 January that Ms Dezoysa says she didn't get until the 29th, is that right, because for whatever reason.

PN149

MR LAWRENCE: Well, yes, and I presume that is so and there is handwriting on that letter.

PN150

THE COMMISSIONER: Yes.

PN151

MR LAWRENCE: Now, the - as I mentioned before, the Human Resources were contacted on 31 January asking about the level that she was being offered and Ms Dezoysa inquired about the VPS level of the role she was offered recently and she was advised that the role that is being offered to her - that had been offered to her was at the VPS4 level and so the error that was in that letter and in the acceptance form attached to it was in the designation VPS5. It should have been VPS4 and the salary was correct.

PN152

THE COMMISSIONER: Well, what would have happened if she had have signed it? You would have been in trouble. The Ombudsman would have been in trouble because she would have signed a letter of acceptance at a VPS5 rate. Forget the typo. That was the letter of offer.

PN153

MR LAWRENCE: There would have been an ambiguity or uncertainty in the letter which would have had to have been resolved by reference to what had gone on before and quite clearly what had gone on before was that she was being offered - there is no doubt about this, a VPS4 position at 55,000 so that uncertainty would have been resolved that way and my instructions are - - -

PN154

THE COMMISSIONER: That goes to the letter of - - -

PN155

MR LAWRENCE: Sorry, 10 December, is that the one?

PN156

THE COMMISSIONER: Yes, that is the one. Yes.

PN157

MR LAWRENCE: Yes, I just can't put my hands on it at the moment but I think - and that was the complaint that Ms Dezoysa had. She didn't want a VPS4 position at 55,000 but the position, as I am instructed, or was clarified as at 31 January when she was told it was a VPS4 position and the salary was 55,000 and it was for that reason that Holding and Redlich wrote in the way that they did because there is no doubt that Holding and Redlich, who obviously wrote on instructions, believe that she hadn't accepted the position and that the 55,000 was in the VPS4 range.

PN158

THE COMMISSIONER: So you have got somebody filling a VPS4 position at the moment who is a VPS5, they are on secondment from another area outside the Ombudsman's area. Are they on a designated period of secondment?

PN159

MR LAWRENCE: I don't know the answer to that and I don't know if that VPS4 position notionally exists or if things have been rejigged to the extent that it doesn't exist. I will have to get some instructions on that, Commissioner.

PN160

THE COMMISSIONER: Okay. So there is two things. One is there is a set period for the secondment and secondly, if the secondment were to go back to their department of origin, would the VPS4 position that they are currently occupying then become vacant.

PN161

MR LAWRENCE: Yes, or available to be filled and that would raise questions about the longer term at work.

PN162

THE COMMISSIONER: Sure, yes. Can we get a couple of answers, though?

PN163

[11.57am]

PN164

MR LAWRENCE: Yes. I have got some instructions, Commissioner. The VPS5 position is a 12 month secondment.

PN165

THE COMMISSIONER: All right. When does that expire?

PN166

MR LAWRENCE: It is from four weeks ago so it has got another 11 months to run. It was arranged two months ago. The Ombudsman has already asked for it to be extended beyond the 12 months and he is anxious for that to happen. It is a particular inquiry that this person is undertaking and it involves 70 or so complaints against a particular organisation and it is a long-term matter.

PN167

THE COMMISSIONER: Not about the Commission?

PN168

MR LAWRENCE: Sorry?

PN169

THE COMMISSIONER: Not against the Commission?

PN170

MR LAWRENCE: No, no. And so the Ombudsman wants that woman in that position to continue for as long as she can. The VPS4 position doesn't exist in that the funding for this VPS5 position is from the VPS4, together with some other moneys that have been available - - -

PN171

THE COMMISSIONER: To make up the bid, yes.

PN172

MR LAWRENCE: - - - to make it a VPS5. That is all I can give to you at this stage, Commissioner.

PN173

THE COMMISSIONER: Okay, thanks. Mr Richardson, Ms Dezoysa seems to want, from what I can gather, the Commission to say to the Ombudsman that she is to be put into the VPS4 position at a rate of pay. Is that what is being asked?

PN174

MR RICHARDSON: That is correct.

PN175

THE COMMISSIONER: Well, without hearing Mr Lawrence on what may be a jurisdictional argument anyway, I mean, even if - even if let us just say, prima facie the Commission had jurisdiction to issue such an order, there would be some issue about that I would think. Why would the Commission want to do that anyway?

PN176

I mean, it seems to me that there were a number of windows of opportunity, which is the catch phrase we use nowadays, and the other one is, as we speak, which drives me nuts when people say that - but there seems to have been a number of windows of opportunity for Ms Dezoysa to accept an offer of ongoing employment quite different to a casual employment at a VPS4 at a rate of pay determined by the Ombudsman, taking into account a range of factors, one of them obviously is the issue of relativities which it would be well aware of, within the union movement and all sorts of ramifications from that and procrastinated to such an extent that the position is gone.

PN177

So why would the Commission want to issue an order if it were inclined to do so in terms of Ms Dezoysa because it is very clear that, in the correspondence from Holding and Redlich, that Ms Dezoysa wasn't accepting the rate that went with the position and we are still challenging it.

PN178

MR RICHARDSON: Well, we have got another piece of thing - I think that - - -

PN179

THE COMMISSIONER: Well, how much more pieces of thing are we going to pull out of our hat?

PN180

MR RICHARDSON: Well, to - we have got a pay slip dated 7.2.2002 that says the salary classification for Ms Dezoysa is a VPS5.

PN181

THE COMMISSIONER: And you have heard Mr Lawrence say that, yes, there was an error. The offer made in 11 January did refer to a VPS5 at a salary of 55,000, do it didn't make any difference in terms of the VPS5 or 4 level - yes, there was an error that went to an adjustment in Ms Dezoysa's pay. When questioned by the Commission as to the letter of offer and the acceptance document referring to a VPS5 Mr Lawrence did say, yes, there was an error, but one has to look at that in the context of the discussions and the offer that was made before, and that was a VPS4 at a $55,000 range.

PN182

MR RICHARDSON: Well, we are saying that this random mistake was repeated through the pay office.

PN183

THE COMMISSIONER: That is right. That is right and there is no denial of that. And the issue is, will you remedy that. I mean, it seems to the Commission that Mr Dezoysa seems to be grasping at straws and it really isn't prepared to contemplate it any further. I mean, there are a number of opportunities as indicated, for Ms Dezoysa to take up what was a firm offer of employment at a rate of $55,000 at a VPS4 level. She chose not to do so. Procrastinated to such an extent that the offer was gone and now you seek - now, you seek the Commission to do something about it.

PN184

MR RICHARDSON: No, we believe that the situation was that she accepted the offer in December and - - -

PN185

THE COMMISSIONER: She didn't accept the offer in December because the letter from Holding and Redlich in January challenges the salary rate of pay. If Ms Dezoysa had accepted the offer she would have accepted the offer in total. How many people do you know that are provided with an opportunity that says, "Look, I will cop that offer, but thanks very much, but I am not happy about the rate of pay and I want to challenge that". The offer is put on the table. There is a range of salary which can be made within that position and the Ombudsman chose $55,000 on the issue of relativities, not to upset at the higher and the lower end of that salary range.

PN186

Now, Ms Dezoysa didn't accept the offer in total. She accepted an offer but what part of it didn't she accept. But what part of it did she accept, sorry? Because she said, "I accept the offer", which one safely could assume that is the total offer.

PN187

MR RICHARDSON: I guess the concern we have got is that by utilising the agreement and the directions of the then director this process was about converting people who had a long going employment relationship with the department of an agency across to ongoing employment. Now, the offer that was made was a punitive to Ms Dezoysa. She was given the option, all right and as it has proved in the wash, will continue as a casual at a higher rate of pay so the internal relativities that we have heard about today don't seem to be an issue if she is - if that is the basis for casual employment and we have heard that she is going to be continuing for the rest of the year, so the concerns about relativities ring a little hollow to me.

PN188

That is the basis of the payment that she is on. To you, for her to convert her position to an ongoing position which is what the government agreed to in the agreement, what the Director of Industrial Relations said was to happen, the only way that she could pick up that offer was in a punitive way to drop essentially 7 grand a year - 140 bucks a week on her base - the basis for her calculating her salary.

PN189

Now, we have heard that the department or the Ombudsman is now prepared or has filled the position with VPS5 and made up the funds for that position. So they are filling it at a higher level than the base salary that could have been paid. So we say that the Ombudsman has, in this position, to fulfil the agreement has taken essentially punitive action against Ms Dezoysa.

PN190

THE COMMISSIONER: I mean, the argument - I mean, there appears to be an argument that there is some - some vindictiveness in there but that doesn't seem to ring true in terms of the number of casual contracts that Ms Dezoysa has had and the opportunity for ongoing work because the - she didn't take up that full time offer. If there was any vindictiveness in there, I mean, Ms Dezoysa wouldn't have any - well, there wouldn't be a job there, whether it be part time, casual or anything else.

PN191

MR RICHARDSON: I think going back, the intent of the 2000 agreement was to stop the partners and agencies that had converted ongoing employment over a period of time to casual and to fixed term employment, and it was to create an environment in which the transition could occur. Now, we are saying that it might not have been personally aimed but there is nothing that suggests that there was anything about the employment that required retribution. But the offer that was made was punitive. It was saying, yes, you can convert from casual to ongoing but you are going to have to take a drop - a significant drop in your base salary. And we say that in - - -

PN192

THE COMMISSIONER: But you acknowledge that there is a range at VPS4 level that they can work within?

PN193

MR RICHARDSON: Yes, and there is discretion to make the decision.

PN194

THE COMMISSIONER: Right.

PN195

MR RICHARDSON: And in every other government department in similar circumstances there is an internal process for someone who has an existing employment relationship to raise the question about whether that is an appropriate salary.

PN196

THE COMMISSIONER: It was raised. It was raised and the Ombudsman rejected the argument and says, this is the range that I am working in, this is the figure that I have picked regardless of whether you agree on the relativities issue, but this is it. Ms Dezoysa then writes back and says, well, here is the hours - 30.5. I accept the offer. That is what it says. "I accept the offer." Now, the offer is $55,000 at a VPS4 level. Then the Ombudsman gets a letter from the firm of Holding and Redlich saying, "we are challenging the rate". Now, the argument has already been rejected.

PN197

MR RICHARDSON: No. Well, I am saying that the offer - her acceptance of the offer was picked up because Human Resources were notified to pay her at the new rate from 24 December 2001. This letter was a confirmation of that and raised more questions. It didn't confirm the offer because - - -

PN198

THE COMMISSIONER: But Ms Dezoysa was told very clearly on a number of occasions that a VPS5 position was not there. All the discussions were regarding a VPS4 is that true?

PN199

MR RICHARDSON: After the interviews?

PN200

THE COMMISSIONER: Yes, all the discussions were - and all the offers were about a VPS4 until the letter of 11 January?

PN201

MR RICHARDSON: Yes.

PN202

THE COMMISSIONER: Right. And there is a VPS5 mentioned in the letter of offer and the acceptance offer - VPS5, but it still had a salary of 55,000. Is that right?

PN203

MR RICHARDSON: Yes.

PN204

THE COMMISSIONER: So why would - why would the Ombudsman's have discussions regarding VPS4 at 55,000 and Ms Dezoysa is not happy about that because the salary range goes up to 64,300 or 64,400 or something and then be offered a letter of offer at a VPS5 at the same level of pay that she is disputing. It doesn't make sense does it?

PN205

MR RICHARDSON: Well, again I cannot make sense of the last - you are discounting that letter of 10 December. That - the one that we only had the one copy and we handed it up to you. It says, accepted the offer, and has the errors and read in the context of the chronology - - -

PN206

THE COMMISSIONER: But what does that mean? I accept the offer of ongoing employment position within the office working a four day week. I shall outline what I would think is a reasonable working arrangement to which I seek your agreement. But she doesn't accept the offer, because there is a letter from Holding and Redlich that says we have got a problem and the letter is dated 13 February.

PN207

MR RICHARDSON: Because the Ombudsman in their own letter says that they acted on that letter - well, they acted, and they say incorrectly to - in the last paragraph of the letter.

PN208

THE COMMISSIONER: Which one?

PN209

MR RICHARDSON: The 19 March directed back to - - -

PN210

THE COMMISSIONER: 19 March, yes, back to Holding and Redlich.

PN211

MR RICHARDSON: The sequence of events. The 10th - the letter is put in and if it is read in terms of a chronology - the last paragraphs says:

PN212

Unfortunately late last week I became aware that the Human Resource Services had been incorrectly paying Ms Dezoysa since 24 December 2001. It appears the change in salary was based on an erroneous assumption that Ms Dezoysa had accepted the VPS4 position.

PN213

Now, we say that at that point there was no lack of clarity about accepting the position. What was being asked is, what is the avenue to question the salary. I am not happy about the salary and I don't think the salary is appropriate, what internal mechanism is there to question the salary.

PN214

THE COMMISSIONER: The 10 December letter doesn't say that.

PN215

MR RICHARDSON: In the context of the discussions as per the chronology and for her to say, you know, I think to pick up the Ombudsman's position on the basis of assertions - Ms Dezoysa's chronology.

PN216

THE COMMISSIONER: Yes, and even her own chronology on 10 December says:

PN217

Handed Dr Perry a letter confirming that she had accepted the position and outlining proposed hours of work. She asked when the position would take effect. Dr Perry stated that it would commence at the expiration of the current contract.

PN218

10 December to 21 December:

PN219

Ms Dezoysa continued to submit fortnightly time-sheets and was paid at a casual rate.

PN220

MR RICHARDSON: And some advice was given to the Human Resource Services that converted her on 24 December. So I am not sure who didn't think she hadn't accepted the position then, what she was asking, as is the right of other employees in other departments in a broad banded system that covers a range of classifications, is her salary level at the appropriate level. So, accepting it and looking for a mechanism to have the debate about whether it was appropriate - the appropriate level, we say are two significantly two different things.

PN221

The letter dated 11 January just upset the apple cart because it talked about a VPS5 position. The immediate pay period following that, or the one before and the one following - her pay slip said she was classified as VPS5, so it was the re-opening of the situation which was signed, sealed and delivered it would seem prior to Christmas whether it was 11 January - - -

PN222

THE COMMISSIONER: Well, if you want to hang to it as a typo in terms of the letter of offer of 11 January it would appear that on 29 January, according to Ms Dezoysa, that the letter described the position as a VPS5 and the remuneration was $5000.

PN223

MR RICHARDSON: Yes, and we say that she picked that up.

PN224

THE COMMISSIONER: No, no, no. You are not listening. If you want to hang your hat on a typo, this chronology says on 29 January that the letter of 11 January described the position as a VPS5 and the remuneration was $5000.

PN225

MR RICHARDSON: Yes.

PN226

THE COMMISSIONER: Right, that is a typo.

PN227

MR RICHARDSON: Yes.

PN228

THE COMMISSIONER: Right. By Ms Dezoysa.

PN229

MR RICHARDSON: Yes. But I think the question is that if - it is not a typo because it is a repeat of the typo from that document.

PN230

THE COMMISSIONER: Right. Yes, you are correct. So we have got two typos in the acceptance - VPS5 and $5000. Does anybody check these when they go out, Mr Lawrence?

PN231

MR LAWRENCE: Well - - -

PN232

THE COMMISSIONER: Obviously not.

PN233

MR LAWRENCE: Well, obviously not so well that these don't - these sorts of typos don't slip through, but as I am instructed this documentation in the letter dated 11 January was prepared by the Human Resources people and subsequently signed by the Ombudsman but it is quite clear of course - - -

PN234

THE COMMISSIONER: It is quite clear in the letter itself it is 55,000 but it still says VPS5.

PN235

MR LAWRENCE: Yes.

PN236

MR RICHARDSON: Anyway, I think it goes back - we believe that the offer was accepted at the rate - - -

PN237

THE COMMISSIONER: It wasn't.

PN238

MR RICHARDSON: Well - - -

PN239

THE COMMISSIONER: How can you accept an offer at the rate and then in January - no, February, sorry, be provided with a letter that says "Don't accept the rate". So we have got 10 December it says "Accept the offer" which one can safely assume that is the total offer. Get a letter two months later that says "No, challenge the rate of pay". Now, I understand how people may want to raise the issue of the rate of pay, but there is an internal process for that, isn't there?

PN240

MR RICHARDSON: No, well, there is not. That is the - - -

PN241

THE COMMISSIONER: But you have public servants that raise the issue of their appropriate level of pay anyway. You don't all come here.

PN242

MR RICHARDSON: No, because there are internal review processes. There is not with the Ombudsman. That is what - and if you look at the chronology, that was one of the questions asked, could it be reviewed to any internal review process on 25 March - - -

PN243

THE COMMISSIONER: What point is that?

PN244

MR RICHARDSON: Page 4. There was no internal thing and I think if you read - - -

PN245

THE COMMISSIONER: So what did Ms Dezoysa accept?

PN246

MR RICHARDSON: She accepted the offer of the VPS4 at 55,000 once the hours had been formalised and that is - that was the document of 10 December. And as I say, it was acted on by - it is written off as a mistake in the letter, but it was acted on from the office and they - from 24 December, the first working date after the finalisation of the contract, they converted her over to a VPS4 position at a salary of $55,000. So there was no question, it seems, in the Ombudsman's mind, that is the 19 March 2002 letter, that they accepted it as well. And the tenor of all of the letters is we don't believe this is the appropriate rate, can we talk about it, can we access an internal mechanism to talk about it.

PN247

THE COMMISSIONER: When did her contract expire?

PN248

MR RICHARDSON: 21 December 2001.

PN249

THE COMMISSIONER: Right. And she continued to work - continued to work?

PN250

MR RICHARDSON: Yes.

PN251

THE COMMISSIONER: There was a period where she had a sick day and - so what did - other than the typo error in VPS5, what rate of pay was she paid?

PN252

MR RICHARDSON: She was - she was - well, I haven't checked back over all the pay things, but we believe that she was paid on a VPS4 salary of $55,000 from 24 December up until this letter when it was an unfortunate error and that was going to be corrected.

PN253

THE COMMISSIONER: Right. So that is the letter from the Ombudsman - - -

PN254

MR RICHARDSON: The Ombudsman on the 19th.

PN255

THE COMMISSIONER: 19 March.

PN256

MR RICHARDSON: Yes.

PN257

THE COMMISSIONER: So just check the pay records - pay slips. What hourly rate of pay was she paid?

[12.24pm]

PN258

MR RICHARDSON: There is the conversion one, 21 December, the hours paid at 39.48 and on 24 January 2002 they are paid at 27.74.

PN259

THE COMMISSIONER: What is the rate of pay now?

PN260

MR RICHARDSON: Well, as from that letter of 19 March, it was bounced back to the 39.48.

PN261

THE COMMISSIONER: So how many weeks did she get paid at the $55,000 per annum rate?

PN262

MR RICHARDSON: It would be for all the employment from 24 December, presumably to soon after 19 March, after that letter.

PN263

THE COMMISSIONER: So from 19 December until about mid March, late March, she was paid at the hourly rate based on $55,000.

PN264

MR RICHARDSON: That is correct.

PN265

THE COMMISSIONER: Mr Lawrence?

PN266

MR LAWRENCE: Just on that particular point, Commissioner, when the error was discovered, all the pays were recalculated and she was paid the difference between the hourly rate that had been paid to her and the 39.48, so she has received by way of a back pay adjustment the differential between late December 2001 and - - -

PN267

THE COMMISSIONER: Now, the Ombudsman has operated on this letter of 10 December.

PN268

MR LAWRENCE: Well, that letter of 10 December came in to the Ombudsman in a particular context. The context is set out in the chronology as far as Ms Dezoysa is concerned and she says that she accepted the offer at that stage and we contest that, the Ombudsman contests that, and - - -

PN269

THE COMMISSIONER: That she didn't? On 4 December?

PN270

MR LAWRENCE: On 10 December or thereabouts.

PN271

THE COMMISSIONER: No, no. It says on the 4th, it says she was unhappy about the remuneration offered but that she accepted the position.

PN272

MR LAWRENCE: Yes.

PN273

THE COMMISSIONER: And that is on the 4th, according to the chronology.

PN274

MR LAWRENCE: Sorry, I will just check that because I got specific instructions about the 10th. The point that I would make about the 4th is the same that I was going to make about the 10th and that is my instructions are that in the discussions that occurred on 4 and 10 December, Ms Dezoysa wasn't accepting the position but she said on both occasions "if I accepted the offer" and then words to the effect, would the offer operate from just after the end of the contract that I am currently on, so what she was trying to do was to get the continuity from late December but my instructions are that she did not accept the offer and certainly none of the paperwork or any of the other documentation that one would expect was entered into at that stage and that becomes apparent later on, when you look at the documentation in January, that there is a process for a formal offer and a formal acceptance of the position.

PN275

Now, what I say in relation to that letter of 10 December is that it is not an acceptance. It is not a proper acceptance, not an acceptance. What Ms Dezoysa was doing was to say that she was prepared to accept an offer of ongoing employment and it is interesting that she used that term. In my submission, she was being too cute about the matter because she was trying to accept what she wanted, the ongoing employment, and leaving aside the classification level and the salary level. Now, it is a conditional acceptance at best.

PN276

Ms Dezoysa is a lawyer. She has been a lawyer for a number of years and one of the first things you learn in contract law is where there is an offer and acceptance, if you want to accept the offer then you accept the offer that is made and you don't put in qualifications. And she would also know, as is evident from the material, that you need, in order to be appointed to a position, you need to go through the formalities; there needs to be a written offer and there needs to be an acceptance. That is the way it is done in the public service so that there is no confusion or doubt about what the employment status is and what Ms Dezoysa is saying through her representative today is that she was appointed to a VPS4 position in that very uncertain situation and without documentation. Now, in my submission, it is quite clear that she hasn't been appointed to the position, there was no done deal, there was no documentation and the letter from Holding Redlich really indicates that. It was still in a state of flux as far as she was concerned at that stage.

PN277

Now, could I just say one thing. There is the question of power, the Commission's power in relation to this and I haven't gone into that but because of the particular circumstances of this case it is clear, leaving aside all questions of the power of this Commission, it is clear that she was not appointed to that VPS4 position.

PN278

THE COMMISSIONER: Thank you. Mr Richardson.

PN279

MR RICHARDSON: Again, I think the two issues really need to be separated out. If someone notified Human Resource Services to convert Ms Dezoysa from an ongoing salary at 39.48 per hour down to 27.74 per hour. Now, for all you can say about that, someone directed; they didn't just wake up one morning and say for a belated Christmas present we will reduce the rate. There was some reason why that conversion took place and we say the reason was that discussions had taken place in the letter of 10 December, formalised the process of the acceptance. The letter that came dated 11 January that was handed some time later or whatever reason, be it little errors, confused the situation. So nowhere in the letter of 13 February 2002 from Holding and Redlich is the question raised that an agreement hasn't been reached. It is a question of whether the salary level is appropriate and seeking for discussions around that particular issue:

PN280

Our client wishes to avoid recourse to more formal mechanisms to progress the matter.

PN281

The end result of that process was that the Ombudsman said on 25 March that there was no relevant internal review process to deal with it and by that stage had withdrawn the offer and converted Ms Dezoysa back to the arrangements she was on prior to 21 December but we say that all of the Ombudsman's actions, and there are others that are detailed in the chronology, she didn't have to put in time sheets, she had a set of hours that she was working, she didn't have to put in time sheets.

PN282

We are saying that all of their actions are consistent with an understanding that Ms Dezoysa had accepted the offer, albeit they were aware that she had difficulties regarding the salary and she wanted to pursue that if she could. Now, we say you can't read anything else into the documentation that is before you and that is the case but everything that the Ombudsman did, post 24 December 2001, until they received a letter from Holding, Ryan and Redlich, was consistent with them believing that the offer had been accepted and that every action they took was consistent until the response from the letter to Holding Redlich and Ryan.

PN283

And again, I would say there is nothing in the Holding, Redlich and Ryan or the Holding Redlich letter that suggests that there was not acceptance of the position; there was a question about the appropriate salary for that position and there was seeking to have discussions about whether that salary level was appropriate and we say that in any other department, that right would be there to an employee, any other statutory authority, that right would be there and the two issues are separate. There is no reason in our view that Ms Dezoysa is not an ongoing VPS4 but there is an ongoing question about the appropriate rate of the salary and if there is no other place to hear it than in this place, then we would say there is a mechanism to get here via the disputes procedure that is contained in the certified agreement, if the Commission pleases.

PN284

THE COMMISSIONER: Thank you. I must say the difficulty that the Commission has had all the way along is coming to terms with what Ms Dezoysa says, is that she accepted the offer of employment. Now, the letter of 10 December, Mr Lawrence has pointed out that it still refers to the term of ongoing permanent employment. Now, that term has been rejected and was rejected by the Ombudsman in a letter dated 21 November 2001. It is very clear he rejected that term, so I would have to say that personally the Commission doesn't accept that Ms Dezoysa accepted the offer of employment at a VPS4 at $55,000 and Ms Dezoysa was trying to be too smart by half and kept referring to a position of ongoing employment which had been rejected earlier and previously.

PN285

There is no acceptance of an offer by Ms Dezoysa and the second issue is even if the Commission had the powers, which it is not sure that it does, it would decline to intervene in the matter and issue an appropriate direction or order for the Ombudsman to put Ms Dezoysa in the position, in the Commission's view that she is not entitled to be in, given that is has been on the table for some considerable time and she chose not to accept the offer as was. The Commission won't take it any further. The Commission stands adjourned.

ADJOURNED INDEFINITELY [12.38pm]