C2002/3266, Transcript of Proceedings [2002] AIRCTrans 2997 (5 August 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 VT05012
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2002/3266

HEALTH SERVICES UNION
OF AUSTRALIA

and

ANGLISS HEALTH SERVICE

Notification pursuant to section 99 of the Act
of a dispute re negotiations in changes to
rostering

MELBOURNE

2.28 PM, MONDAY, 22 JULY 2002

PN1

MR C. HEWSTON: I appear on behalf of the Health Services Union of Australia.

PN2

MR R. CORBOY: I appear on behalf of VHIA, together with MS L. DE VALLE and MR G. ALLAN, from Angliss Hospital, part of Eastern Health.

PN3

THE COMMISSIONER: Thank you. Now, this is a notification by the HSUA. Mr Hewston?

PN4

MR HEWSTON: Thank you, Commissioner. First I would like to apologise for the difficulty in the previous hearing. Since that time the union and its members has met with the hospital regarding this matter, which has failed to resolve the situation, which has led to the hearing today. This dispute is regarding a request which has been put by our member for a reduction in hours on a Wednesday shift. She works as a medical records clerk at the Angliss Hospital, and has done so for, I believe, a period of approximately three years.

PN5

In approximately 2000 our member, Ms Bhatia, received an injury to her shoulder while she was at work, and because of that shoulder injury the advice from her doctor was that she not work night shifts as that aggravated the injury. So from that time - the doctor's advice from the injury which she sustained at work was that not work night shifts, and part of her rostered hours are to work night shifts.

PN6

THE COMMISSIONER: Is it something to do with the - - -

PN7

MR HEWSTON: This is relevant.

PN8

THE COMMISSIONER: No. I am just wondering whether it is something to do with the rays of the moon or something that affect somebody's ability to work days opposed to night.

PN9

MR HEWSTON: I am not sure.

PN10

THE COMMISSIONER: I might be being a bit cynical, but I am just - - -

PN11

MR HEWSTON: That is the doctor's advice which was given. I believe it was something to do with the swelling aggravated the injury if she remained standing for long periods of time, and that was more common to occur during a night shift. That is what I have been informed, Commissioner. Following that Ms Bhatia chose at that point in time not to lodge a WorkCover claim because she was very concerned about the stigma which is attached to receiving WorkCover, and the possible implications for employment elsewhere.

PN12

She had a significant amount of sick leave at that point in time and chose to use that sick leave to cover her night shifts where she was not able to work due to the doctor's advice. In late 2001 Ms Bhatia ran out of her accrued sick leave, and a meeting was held with myself, Ms Bhatia and representative from the Angliss Health Service to discuss the situation and how this could be resolved.

PN13

Following that, in early 2000, Ms Bhatia lodged a WorkCover claim, which I have been informed at this stage has been rejected by the hospital, but I believe Ms Bhatia is still pursuing that WorkCover claim. Unfortunately, at this point in time - prior to this Ms Bhatia has suffered a loss of earnings because she has not had the accrued sick leave to cover those shifts where she would have normally worked night shift, which leads on to the issue where Ms Bhatia sought day employment elsewhere to compensate for her lost earnings, pick up a bit of extra work to satisfy what her financial commitments were, and that is the way that she pursued that issue.

PN14

In early this year another meeting was held, and Ms Bhatia, with the union present, informed the representatives from the hospital that Ms Bhatia was seeking employment elsewhere, at Monash Hospital, I believe, in the same role as she was at Angliss Health Service, and she was subsequently successful in her application for that position. Unfortunately, part of the hours which were the requirements of that position conflicted with the hours that she was currently rostered to work at the Angliss Health Service, that being a Wednesday shift.

PN15

So at this point in time a change in rostering was requested by Ms Bhatia. This is, what we say, not an unreasonable request. Requests have been made in the past by Ms Bhatia to alter her roster, and I have been informed that it is fairly common practice that the requests to reduce rostered hours at Angliss Health Service are normally met without an issue. I mean, obviously there are numerous requests to increase people's hours, however, the reduction in hours is normally a request which is considered reasonable by the hospital, and a request which is granted.

PN16

So Ms Bhatia had no reasonable reason to think that this request for a reduction in her hours, being the Wednesday shift, would not be granted. Unfortunately this was a request which was denied by the Health Service on the basis that they believed the number of part-time staffers in that department was becoming difficult to manage. There were issues, the Health Service says, with continuity of staff, and that in this case granting that change in roster was not in the interests of the department.

PN17

At the same time, during the same discussions, we informed the hospital of a number of staff - I do believe there were initially three staff - who may be willing to pick up those additional hours on the Wednesday. However, the hospital again declined to look into that being a reasonable alternative, and the reasons again were just the difficulty in part-time staff.

PN18

We believe there was some prejudice on the hospital's part in the reasons that it didn't grant Ms Bhatia's request for a change in hours, because of the difficulties that they believed they had with her accessing her sick leave entitlements, and which until last week was still being granted, being that she is still currently rostered on for some night shifts which she is unable to perform.

PN19

THE COMMISSIONER: When you say other staff would be able to pick up the additional hours on a Wednesday, why would they be additional hours? Why wouldn't it be a swap in hours? Ms Bhatia says, can't do it Wednesday because I have picked up this function at Monash, and she seeks a change in roster, one would assume that in seeking a change in roster is that she work one day, say maybe a Tuesday - correct me if I am wrong - but then the person whose position she would take on the Tuesday would expect the work on a Wednesday. So there wouldn't be any additional hours, one would assume, it would be the same hours but just transferred from one day to another.

PN20

MR HEWSTON: That was our first preference, was to swap a shift, considering the situation that Ms Bhatia was happy to actually drop her hours at the Health Service to accommodate other staff's requests as well as the hospital's requests. She considered that a reasonable option, and that was an option that we pursued for a number of reasons. I think Ms Bhatia took into account the hospital's concern, and as she had been successful in applying for another position and picked up hours, the need for maintaining her hours at the Angliss Hospital was not as pressing now that she had been able to pick up other work to meet her financial commitments.

PN21

This was not an option that the hospital was willing to discuss, and we maintain that the knocking back of the request for this change in hours was unreasonable, and we have yet to hear what we consider a reasonable response as to why these changes in rostering cannot be accommodated. Another meeting was held, Commissioner, last week, where we again discussed the issues which were at hand, and were informed by representatives from the hospital again that the issues were, as I mentioned before, the number of part-time staff was becoming difficult to manage, continuity of staff was also an issue, and it wasn't in the overall interests of the department.

PN22

Their response was also that Ms Bhatia had an obligation to work her contracted hours, and that was the bottom line, and that failing to work those contracted hours would result in disciplinary action. Following that I have been informed within the last half hour that Ms Bhatia has just got home and received a notice terminating her employment. This is a step which we believe is harsh, unreasonable and completely unjust, as we believe that the hospital is discriminating on Ms Bhatia because of the reason that she has taken her sick leave and that has caused some inconvenience to the running of their department, which is now being held against her.

PN23

What we are seeking from the Commission today is a recommendation that the Angliss Health Service grant the change in the rostered hours as requested by Ms Bhatia, as we do not see any reason those requests shouldn't be accommodated. And I assume also, Commissioner, it goes without saying that we seek a recommendation from the Commission that the notice terminating Ms Bhatia's employment as of today be withdrawn.

PN24

THE COMMISSIONER: Thank you. Yes, Mr Corboy?

PN25

MR CORBOY: Thank you, Commissioner. Unfortunately this goes back a considerable period of time. I would like to hand up some documentation to the Commission and take the Commission through it. Commissioner, the first one I would like to draw your attention to is a stapled document in three columns titled, date, action, details, and the first date is 26.10.99. I will be tabling that, Commissioner, if you wouldn't mind marking it.

EXHIBIT #VHIA1 SPREADSHEET RE MS BHATIA

PN26

MR CORBOY: Commissioner, this is a spreadsheet or a listing of all the times that there have been contact with Ms Bhatia, and also problems arising from her contract of employment. Her employment for the past couple of years, or three years, has been on the first week working Saturday afternoon from 12 till 6.30, working the next day, day shift from 9.30 to 5 o'clock, and then the Wednesday day shift from 7 o'clock in the morning till 3.30 in the afternoon.

PN27

On roster two she was required to work a Saturday night shift from 10 o'clock through to seven, and then Wednesday day shift again from 7 o'clock in the morning to 3.30 in the afternoon. Now, these hours were agreed with the employee and as a result of her requesting to reduce her hours. Now, as the Commission will observe from those times I have read out, that it is required that she works every Wednesday day shift. The rest of the time is working on the weekends.

PN28

Angliss Hospital has got a 24 hour medical records service, and part of that is that if a staff member doesn't work regularly in the hospital on day shift, and only works weekends, then they believe there is a problem with that, so they thought of a suitable requirement for Ms Bhatia to work Wednesday day shift. And, indeed, she had been working these hours with the exception of the Saturday night shift on roster two because there was a problem with her working night shifts.

PN29

And I will draw the Commission's attention to the date on VHIA1, 23.6.2000, where there is a problem with her daughter's illness, where she couldn't work night shifts, she would much rather work day shifts. And since that time there has been an ongoing problem with Ms Bhatia working the Saturday night. Now, I shall not take the Commission entirely through this, but as you go over the page, over the page you see that there is numerous communications or discussions with her on various dates about problems with her not being reliable, not turning up, and the various excuses that were provided for those particular problems.

PN30

There was a concern on 23 July 2000, when she was on compassionate leave, and it appears she was working in Myers at another job at the same time. That may be understandable, but it did cause some concern to the employer. As we go through, Commissioner, I will take you right through to where, on the 26th, on page three at the bottom, on 26 June 2001, there was problems raised with her about her teamwork and the problems that she was having.

PN31

Just above that, the issue of Deepah's back and neck pain was first raised with the departments. That was in May 2001. And then through and through there were problems and conversations with Ms Bhatia going all the way down. Now, we come to the crux of the matter, Commissioner, where I believe as of March or April this year she was seeking, or actually did seek and obtained work in another health agency, being Southern Health Care Service or Monash Medical Centre.

PN32

Now, at the same time, or prior to this, her WorkCover claim had been rejected by the insurer of the respondent, and Ms Bhatia, on 16 April 2002, sent a fax to Lynette, or Ms De Valle, who is with me today, informing her that she wanted to drop the Wednesday day shift. There was a letter in response. Unfortunately I don't have extra copies of it. If I may read it out to the Commission. I can make copies available later on. This is 16 April 2002:

PN33

Dear Deepah, your request for decreased shifts. I am writing in response to your faxed letter dated 16 April, stating you were going to decrease your hours by one shift, eight hours per week. The accepted practice for any change to a roster to be negotiated and agreed between the employee and the employer. Your unilateral decision to change your working hours is not acceptable. Equally it is also normal practice to provide a reasonable notice of changes. In this case at least one roster period notice would have been considered reasonable. Your decision has resulted in significant disruption to the department and your colleagues for the remainder of the set roster. Whilst your request to alter your contracted hours has been considered, it is imperative we clarify your intentions regarding your remaining shifts, in particular the Saturday night duty, as a matter of urgency.

PN34

And it then offers contact numbers. It says:

PN35

You or your representative can contact me on a number, or Mr Allan on another number, and arrange a time to meet human resources.

PN36

Now, why the letter is couched in those terms is that she advised that as of the next day, being 17 April, she would not be working on Wednesdays. So with one day's notice there was significant disruption to the workings of the department. Now, from that there has been her request for a change to her hours, was knocked back, and the reasons for doing so were provided, first by the department, and then, I believe, by the Director of Human Resources at Eastern Health, Ms Carole Sainsbury.

PN37

Now, they had continuing problems with Ms Bhatia not turning up for the Wednesday shift and also not turning up for the Saturday night shift. So that is three days out of the five they were having problems with. The next letter I would like to refer you to, Commissioner, is the Dear Deepah letter, which is dated 6 May 2002. The six has been written in by hand.

EXHIBIT #VHIA2 LETTER TO MS BHATIA, DATED 06/05/2002

PN38

MR CORBOY: In this letter it refers to the change of shift in the second paragraph, where it says the request is being considered and taking account of Eastern Health staffing policy, etcetera, unable to accommodate request at this time, and it says:

PN39

Negotiate with colleagues to swap your Wednesday shift. I understand you have been unsuccessful in this regard.

PN40

And we believe that is still the case. We then go on to the main body of the letter, which in quite unambiguous terms points out to her that there was a matter of serious concern regarding her failure to work her rostered shifts at the Angliss Hospital. Quite unequivocally it points out what her contracted hours are and what the expectations are by the employee, is that employees will honour the contract by providing those shifts. At the bottom of the page it says:

PN41

If you are no longer to fill your conditions of employment with regard to working arrangements, please notify me immediately in writing.

PN42

This has not happened. Over the page it provides a time and date, and the information that the hospital requires. It also says that if she wished to resign from the Angliss, because that had been canvassed in meetings, the award based credits could be transferred to Southern Health, and it offers there, if she wished to resign we can waive the notice of resignation, etcetera. Now, it is a very clear letter. It says that, in the second last paragraph:

PN43

Failure to respond in writing by the above date may result in commencing disciplinary procedures.

PN44

And there is a plea to her, saying:

PN45

We wish to clarify the matter for the sake of all parties as soon as possible.

PN46

Now, Commissioner, that letter is quite unambiguous, that a matter of serious concern to the employer was on the table. Now, as a result of that, Mr Hewston from the union met with Mr Allan, who is with me today, and correspondence transferred between those parties. And much to our avail, if the Commission wants to go back to VHIA1, you will see from 6 May 2002, which is on the top of the fifth page, right down through June and, indeed, to the end of June there has been various correspondence and reasons for that back and forward to the union.

PN47

The matter was then listed for the Commission, and regrettably that hearing did not go ahead. And what happened was that the employer instructed me to contact the union, which I did on 11 July. It is the next document I would like to table, Commissioner, which is two handwritten faxes and one typed fax. The first page is Eastern Health, Human Resources Department.

EXHIBIT #VHIA3 FAXES FROM EASTERN HEALTH, HUMAN RESOURCES DEPARTMENT

PN48

MR CORBOY: In this, the first fax refers to a meeting which was, unfortunately, postponed because Ms Bhatia could not attend. And the fax is quite clear; it says:

PN49

We require an undertaking from Ms Bhatia at 4 pm tomorrow if she will work her contracted shifts. We note that Ms Bhatia has failed to follow policy, so failure to advise will result in Eastern Health and VHIA calling the matter back on urgently. Potential action against Deepah for failure to abide by contract, failure to follow lawful instructions. This is serious and urgent. Fax may be sent to VHIA.

PN50

The third page over, Commissioner, the other one is a transmission information. We received a facsimile from the union at 3.11 on the next day, saying that she is not able to attend her Wednesday shift, and it says that we should look to filling the shift with other employees. Now, another time was arranged, and that was for 16 July. A facsimile was sent, the last fax in this, addressed to Mr Hewston:

PN51

Dear Charlie, I have received your fax. The issue is not replacement, the issue is your member fulfilling the existing contract of employment, and not working elsewhere in preference to fulfilling her obligations. I have left a message for you to call today. It is unfortunate the meeting last week was foiled. We have 4 pm on Tuesday, 16 July, available at the Angliss. Please confirm yours and your member's attendance. This is serious and does need to be sorted out.

PN52

Mr Hewston did respond via telephone that they were both attending. Now, Commissioner, the last one in this bundle - I have got two more to hand up - the last one in this bundle is another, it is a four columns red sheet, it is four pages duration, it is headed up, failure to follow procedures and management implication since 10 April 2002.

EXHIBIT #VHIA4 FOUR PAGE DOCUMENT RE FAILURE TO FOLLOW PROCEDURES

PN53

MR CORBOY: In this, Commissioner, it is a rather sad catalogue of all the times that she had failed to notify the absence. With any employer they have policies in place for notifying absences, and she would not turn up for shifts, causing disruption on that particular shift. I take the Commissioner through. 10 April, failed to follow leave request procedures.

PN54

THE COMMISSIONER: It is all right, I have read it, Mr Corboy.

PN55

MR CORBOY: You have read it?

PN56

THE COMMISSIONER: Yes.

PN57

MR CORBOY: Fine, okay. Numerous occasions, Commissioner, so by this stage it was getting to be quite serious. And there were concerns raised with her when they managed to contact her. The meeting of 16 July went ahead, Commissioner. I would like to hand up the last two documents for today. These were notes taken by Ms Dale, who is present at the back of the Court today, and typed up by Mr Allan, who is at the bar table. They list, according to my recollection and my notes, the process that actually went on.

PN58

In that meeting I asked Ms Bhatia whether she was able to work her Wednesdays. I pointed out their Wednesdays clashed, her Wednesday shifts at Southern clashed with what was happening at Angliss. She refused to advise me that she was able to work her Wednesdays. The matter of reducing hours was discussed, and she was advised that her contract of employment would be at jeopardy if she did not work her contracted hours.

PN59

I take the Commission over to page two, and I will just work down that page. Mr Hewston, who is present today, said Deepah will not be working the Wednesday shifts. I asked her why she took the position, knowing the shifts conflicted. No response. I said I required her to make a commitment today to work her shifts. Charlie asked if we wished to discuss the matter with Deepah in private, and that occurred. Then after the break the response was it had not changed, not able to work on Wednesdays.

PN60

I then put it very clearly to Mr Hewston, that did she understand that failing to work Wednesdays would place her position at jeopardy, and he said that he had advised her of the consequences. So it was a very straightforward meeting, Commissioner, but it was put very clearly on the table that we required her to work her shifts, and we believed that she was putting her position at risk if she failed to make that undertaking.

PN61

Now, I took instruction, Commissioner. The hospital believes, or the service believes that they have done all they can regarding this employee's failure to work her shifts. And when we are looking at the number of shifts, Commissioner, she was refusing to work two out of her five shifts, and they were major shifts, they were eight hour shifts, and that she was also not reliably turning up to the Saturday night, in other words, so not working three out of her five shifts.

PN62

As a result a letter was sent to Ms Bhatia on 18 July. It stated matters of serious concern, where there is a series of dot points on the first page, which takes us step by step through the position that the hospital was taking and the rationale why. Because of her inaction or inability to confirm her willingness and her readiness to work her contract, and the fact that she preferred to work for another employer rather than fulfil her original contract with the Angliss, they believed it was intolerable, and a decision was made to terminate her employment, and the usual process after that, that pay would be sent out, certificate of service, entitlements would be forwarded, etcetera.

PN63

THE COMMISSIONER: The document which is the file note, we will mark VHIA5, and the letter dated 18 July to Ms Bhatia we will mark VHIA6. Have you got those Mr Hewston?

PN64

MR HEWSTON: Now I have.

EXHIBIT #VHIA5 FILE NOTE

EXHIBIT #VHIA6 LETTER TO MS BHATIA, DATED 18/07/2002

PN65

MR CORBOY: Now, Commissioner, when the letter was composed I advised Shane Casey from the union, on the afternoon of the 18th, advising him that Ms Bhatia was being terminated that day via letter. So I had that conversation with Mr Casey, who was also present in the meeting on 16 July, as you will see from VHIA5. Now, Commissioner, I suppose it comes down to the obligations of the employee and, I suppose, the rights and responsibilities of all parties.

PN66

The Angliss Health Service believes that they have done all they can for most of this year, and considerable attention has been given to this employee over the last two or two and a half years, that she is required to work her contracted hours. They have given clear notice and clear warning that her actions could result in a serious situation which could result in termination of her employment.

PN67

If I just may go through Mr Hewston's outline of argument. As I have already stated, the WorkCover claim has been rejected on medical advice by the insurers. The implication that any employee in Eastern Health would be stigmatised because of a WorkCover claim is very strongly denied. Eastern Health does not stigmatise any employees, and there has been no discrimination in this matter whatsoever.

PN68

It is very simply that the employer wants her to work her contracted hours which she had agreed to two and a half years ago, or three years ago. The principle issue here is that she has chosen to work five days a week at another health organisation, and she willingly accepted that job knowing there was a conflict. And there was no negotiation with the employer until she started to work those particular shifts.

PN69

We believe that if the employee believes she has been harshly, unjustly or unreasonably dealt with, then a 170CE application under the Act is available to her. If she believes she had been harshly, unjustly or unreasonably dealt with, or even if she alleges there has been discrimination, then I think it is 170CL or CK of the Act.

PN70

THE COMMISSIONER: CK.

PN71

MR CORBOY: CK, thank you, Commissioner. I must be tired today. Has the opportunity of dealing with those particular applications. Now, at the crux of this, Commissioner, we have the obligation and responsibility of the employer to manage their workplace. We believe the employer has not acted harshly, they have not denied her any natural justice, they don't believe they have acted unreasonably. They have been remarkably tolerant, and they have a situation where they cannot put up with this behaviour any more.

PN72

If the Commission pleases, we would request that the Commission makes no recommendation regarding the Angliss change their roster to suit Ms Bhatia, because at this stage we have no identified person or no identified being who will actually pick up this roster. And the evidence we would like to bring to the Commission, we haven't particularly brought it today, but I would like to put Ms De Valle and Mr Allan in the witness box, if needs be, as regards the effect this would have on the particular department.

PN73

We would also hope the Commission would not recommend that the notice of termination be withdrawn, because as you can see from the paper trail, Commissioner, we believe the goodwill of this organisation has been totally exhausted. If the Commission pleases.

PN74

THE COMMISSIONER: Thank you, Mr Corboy. Yes, Mr Hewston?

PN75

MR HEWSTON: Thank you, Commissioner. I would like to respond to a number of points which Mr Corboy has raised. It appears that Mr Corboy's argument is purely one that there have been numerous rostering problems from their perspective regarding Ms Bhatia, and this is an allegation that we outright deny. There has certainly been numerous discussions about work availability and availability to work additional shifts, and at all times I have been informed that Ms Bhatia has been as accommodating as she can be.

PN76

Mr Corboy has also alleged that one of the major reasons for wishing to terminate Ms Bhatia's employment is that she has made a conscious decision to prefer work at Southern Health over her employment at the Angliss Health Service. This is an allegation that we again outright deny. The reason that she has taken up employment with Southern Health is purely to maintain her current income, to offset the fact that she is now taking unpaid sick leave at this time.

PN77

If there was work available at the Angliss Health Service which she would be able to pick up, then she would have much preferred to continue with the Angliss Health Service. So it is purely for financial reasons and not over any preference of where she works. Another point that I would also like to raise is, there have been allegations that Ms Bhatia hasn't responded or communicated well with her employer regarding working shifts and the accessing of leave.

PN78

I think the hospital's response to this is that they believe one of the reasons for wishing to dismiss Ms Bhatia is because she has chosen to access her leave, both paid and unpaid sick leave, but also because she has maintained that her reason for requesting a change in roster is not unreasonable, and has continued to wish to engage the hospital in discussion over whether it is or isn't an unreasonable request to make.

PN79

There have been numerous discussions prior to where we are today about possible outcomes or suggestions of how the issue may be resolved, and I think through those discussions there are a number of times when we came very close to agreeing to outcomes which ended up obviously falling through. And I do think that as the issue has continued the willingness of the hospital to accommodate Ms Bhatia's requests has been less accommodating as it has continued simply because she has wished to pursue the matter.

PN80

We are concerned that the Angliss Health Service is discriminating upon Ms Bhatia because she is pursuing the matter, and her involvement with the union is one of the factors which has caused the employer to dig their heels in, so to speak, and also that she has chosen to continue to apply for award entitlements such as sick leave and unpaid sick leave under the award. And these are requests were leave has been granted.

PN81

I find it unusual that the Angliss Health Service is now citing a reason for wishing to terminate her employment being that she has accessed her award entitlements, which have then been approved by the Angliss Health Service. I find that very unusual and quite disturbing, that an employee can be singled out as a reason for being - for an employer wishing to dismiss someone is because they are wishing to access entitlements.

PN82

Through the discussions Mr Corboy, through our discussions with representatives from the hospital there were a number of names which were raised of current employees of the Angliss Health Service who would be interested in picking up the current Wednesday shift which is not being able to be worked by Ms Bhatia. So to suggest that there were no real discussions about who would pick up the Wednesday shift is incorrect. Even last week there was an attempt made during the meeting for us to further discuss people who would be willing to pick up those shifts.

PN83

And I believe at this stage we believe there are four current employees of the Angliss Health Service who would be more than willing to pick up that extra Wednesday shift. It is true that I do believe two of those employees aren't currently employed in the medical records department of the Angliss Health Service, but they are employed in very similar roles elsewhere in the department, and through their training in those roles would require very, very little training to be able to fulfil the requirements of that current position description.

PN84

We again maintain that the change in roster request by Ms Bhatia is not unreasonable. When it was initially rejected, I think it is fair to say, that there was surprise by Ms Bhatia, as well as the union, as well as other employees within the Angliss Health Service who are members of the union, because it has not been standard practice in the past, from our experience, that requests for a reduction in hours are not accommodated.

PN85

We would just like to finally submit that we think our request for a recommendation from the Commission is not unreasonable. We believe there are issues of discrimination against Ms Bhatia because of her union involvement and her wishing to pursue this as an issue, as well as issues of discrimination with her wishing to pursue what are her award entitlements. It is true that perhaps the department has not been well equipped to deal with accommodating those requests, but they are her entitlements nonetheless, and entitlements that she is able to take, and those request should be honoured, and there should not be a feeling of repercussions against that employee for accessing those entitlements.

PN86

Although the hospital again denies that there are issues with discrimination against employees who have suffered from an injury or a WorkCover injury at large, that the concern for Ms Bhatia was necessarily, but it may have been, a concern about discrimination from purely of Angliss Health Service, but she was as much concerned about discrimination she might suffer through further applications for alternative employment, or perhaps within the Health Service itself. That is all I would like to add on the matter, thank you, Commissioner.

PN87

THE COMMISSIONER: Thank you, Mr Hewston. Well, the Commission would have to say that where there might appear to be some doubt as to the reasons why an employer has made a decision to terminate an employee, and the matter comes to the Commission by way of section 99, that it might be appropriate for the Commission to issue a recommendation that the employer not proceed with that termination in order to remove or at least maybe put in place a process to remove that doubt as to the genuineness of the decision.

PN88

The Commission actually made a decision the other day, or put forward a recommendation on Friday to a large hospital that they not proceed with a termination at this stage, but the Commission would provide for an inquiry to test the veracity of the evidence that led to the decision to terminate. The Commission would have to say, simply in looking at the material provided today, that there are a number of concerns about this whole episode.

PN89

One of those concerns by the Commission - and the Commission would really have to say that it would need to test the intelligence of somebody who has the slightest understanding of the requirements of a medical records clerk to say that somebody could not work a night shift because it affects them medically. Secondly, the Commission notes - and this hasn't been, admittingly, tested, but the record would stand on its own - it has been suggested that there have been some 73 roster changes in 76 weeks relating to this particular employee, Ms Bhatia.

PN90

Thirdly, and this is the more disturbing thing the Commission would have to say, it appears to show contempt on the part of Ms Bhatia towards the employer, where she says that in a request to meet with some urgency - this is on 22 April - that she can't meet until 4 May. Now, that is some nearly two weeks, and that really is disturbing, particularly where it appears to have been emphasised that there is some importance about the need to meet quickly. Fourthly, if there is the slightest skerrick of evidence to confirm what the employer alleges in regards to this whole episode of Ms Bhatia, then in the Commission's view the letter to terminate appears to be justified.

PN91

Ms Bhatia has made a decision, it would appear to the Commission, a very conscious decision, and she has done it by using smoke and mirrors to justify this conscious decision to prefer her employment elsewhere; Southern, Myers, and anywhere else that she might be employed that we are not aware of. Now, the Commission is not intending to do anything in regards to this matter. In fact, what it will do is adjourn and close the file. The Commission will stand adjourned.

ADJOURNED INDEFINITELY [3.13pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #VHIA1 SPREADSHEET RE MS BHATIA PN26
EXHIBIT #VHIA2 LETTER TO MS BHATIA, DATED 06/05/2002 PN38
EXHIBIT #VHIA3 FAXES FROM EASTERN HEALTH, HUMAN RESOURCES DEPARTMENT PN48
EXHIBIT #VHIA4 FOUR PAGE DOCUMENT RE FAILURE TO FOLLOW PROCEDURES PN53
EXHIBIT #VHIA5 FILE NOTE PN65
EXHIBIT #VHIA6 LETTER TO MS BHATIA, DATED 18/07/2002 PN65