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Australian Industrial Relations Commission Transcripts |
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:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT05509
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER GAY
C2001/4182
AUSTRALIAN LIQUOR, HOSPITALITY
AND MISCELLANEOUS WORKERS UNION
and
METROPOLITAN AMBULANCE SERVICE
Notification pursuant to section 99 of the Act
of a dispute re alleged failure of MAS to follow
disciplinary procedure resulting in termination
of employee
MELBOURNE
10.35 AM, WEDNESDAY, 28 AUGUST 2002
Continued from 17.7.02
PN412
THE COMMISSIONER: There is no change to the appearances? All right. Is there an understanding about who is to start? Ms Forbath? Might I identify that I have received some submissions from Mr Flower today - this morning in the facsimile machine and I have read those. Have you seen those, Ms Forbath?
PN413
MS FORBATH: I beg your pardon?
PN414
THE COMMISSIONER: Have you seen that - do you know the document to which I referred?
PN415
MS FORBATH: Yes, yes, I have. I got that late last night, yes. Commissioner, perhaps if I call Mr McGhie as a witness. Commissioner, it may be appropriate that - - -
PN416
THE COMMISSIONER: Perhaps before you call Mr McGhie, I think it might be as well for you to - it is really for you to put your submissions in your own way but I think it might be useful for you to open and in the briefest ways or indeed, in an extended way, and indicate what the position is that you will be advancing but then Mr McGhie can come into the box.
PN417
MS FORBATH: Okay. So just to clarify, you are seeking our broad submissions first and then take the witnesses.
PN418
THE COMMISSIONER: Yes. I am not inviting you to put general submissions but I think it might be useful and beneficial if you really say what it is the case that is now to be brought by the union. Sometimes one can embark upon a mission and the other side will say well, that wasn't the issue or that wasn't the question and it is dysfunctional. Today, unfortunately, there are some time constraints and I understand that it may be possible to dispose of this matter - hear this matter in a reasonable period of time and of course time won't constrain you all but I think it might be useful if you do that but I don't invite you to make a lengthy submission by any means, Ms Forbath. Just tell me what it is that you - what mission you are embarked upon and then we will have Mr McGhie into the box.
PN419
MS FORBATH: Well, Commissioner, you handed down the decision on 17 July and you sought further submissions regarding two matters that were raised by the ALHMWU in earlier submissions and that is that the first argument was that it was not open to MAS under the MAS Certified Agreement operating at the time to monitor and appraise a probationer other than within the framework of the disciplinary procedures and secondly, the subsequent argument to that was that where there is concern as to the suitability or performance, the disciplinary procedures under the agreement are automatically invoked. Now, those were two positions that the union put and you sought further submissions on those.
PN420
Now, the matter that was brought to the Commission originally concerned Mr Rohan Dent, who had been terminated without being given warnings under the disciplinary procedures contained at clause 53 of appendix F of the 1997 enterprise agreement. Mr Dent was not terminated for serious and wilful misconduct. Commissioner, that is not contested by the Metropolitan Ambulance Service. In bringing the matter to the Commission under section 170LW of the Workplace Relations Act, the union was also raising the implications of this case for probationary employees, in particular the student ambulance paramedic, Mr Rohan Dent, who was the instigator of the application.
PN421
Mr Dent, like all other student ambulance paramedics, was employed as a student ambulance paramedic level one, from his date of commencement of employment and he was employed under the 1997 enterprise agreement. These are all facts that are by way of background, Commissioner. Within the 1997 agreement, two provisions, we say, have particular reference or relevance, rather, to Mr Dent's situation and that of other level one student ambulance paramedics and those two provisions are the attachment named attachment 4 to appendix F of the enterprise agreement, entitled "special conditions applying to student ambulance officers". Now, clause 2 of attachment 4 provides for a probationary period and the parties are well aware of what that is. The probationary period is for a six month period from the date of commencing employment. Mr Dent was terminated prior to completing his six month probationary period.
PN422
Within those special conditions, there is further reference, however, in the clause pertaining to probationary employment and that is that the probationary provisions are subject to clauses 1A and B, which state:
PN423
On commencing employment with the service, a student shall be enrolled in the course which next commences and shall complete such course unless otherwise agreed.
PN424
Now, Mr Dent did enrol in that course and intended to complete the course and did not agree to any other arrangement. Subclause B provides for, and I quote:
PN425
A student who ceases to be employed by a service shall automatically be excluded from the course and a student who abandons or fails the course shall cease to be a student and may not continue to be employed by a service as an ambulance officer. This provision is conditional upon all examinations related to the student course being conducted without using as examiners staff employed by ambulance services.
PN426
Now, Mr Dent did not abandon or fail the course. He had passed stage one of the course and was in the throes of undertaking stage two of the course when he was actually terminated and his termination automatically resulted in his exclusion from the course and as I said earlier, he did not complete the probationary period. Clause 53 of attachment F of the 1997 enterprise agreement provides for disciplinary procedure and I won't read that out, Commissioner, because it is quite long and we are all well aware, by this stage in this case, as to what it contains. These procedures provide for a series of warnings which may result in termination in situations where an employer perceives a problem exists with a particular employee.
PN427
An employee is entitled to be given a reason for the warnings and the problem is discussed with the employee. The stages of the disciplinary procedure as it is practised at the workplace provide for full explanation as to the employer's concerns and perceptions of problems and for the employee to respond to any allegations. The aim is to overcome the problem in the first instance. The discussion at each stage seeks an outcome or a course of action for the future, such that no further warnings will need to be issued.
PN428
The subclause F of the disciplinary procedures provides for any dispute surrounding the disciplinary procedures, for that be to do with the process or the substance of any allegations provides for that to be referred to the Australian Industrial Relations Commission for ultimate determination and once again, Mr Dent was not given recourse to any of the provisions of clause 53.
PN429
THE COMMISSIONER: Is it quite as wide as you say because it reads:
PN430
If a dispute should arise over the disciplinary action.
PN431
You portray that as - or you put that as a very wide meaning.
PN432
MS FORBATH: Well, if a dispute - how is it indeed practised is that if a dispute should - as it says, that if a dispute should arise over disciplinary action, that would encompass whether the process has been properly followed or whether there is a debate over the allegations that cannot be resolved between the parties and the person feels that they have been wrongly or unfairly accused of something or that they have been unreasonably punished in the circumstances.
PN433
Now, if a disciplinary procedure gets to that point, the matter can, under those procedures, come to the Commission for ultimate determination and I think it is important to point that out because those are - that is a process that is in the enterprise agreement, it continues to be in the current enterprise agreement and it provides for a process, a reasonably orderly process, by which the employer can deal with their concerns that they may have about an employee and the employee is given an opportunity to respond to whatever it is that they might be accused of. Should the parties not be able to work through some resolution to that, whether that be by a warning and possibly a plan of action for the future to avoid further warnings in the future, then the matter can come to the Commission for determination.
PN434
Now, Mr Dent was terminated due to alleged poor attitude, behaviour and inappropriate actions and Commissioner, I was going to hand up the termination letter if I could.
PN435
THE COMMISSIONER: I think that is already an exhibit, isn't it?
PN436
MS FORBATH: Is it?
PN437
THE COMMISSIONER: Yes. Well, I might be wrong. I think it is - - -
PN438
MS FORBATH: You may well be right.
PN439
THE COMMISSIONER: Yes. It is ALHMWU2.
PN440
MS FORBATH: Right.
PN441
THE COMMISSIONER: The letter of 7 August terminating Mr Dent.
PN442
MS FORBATH: If I could draw the Commission's attention to that exhibit. It is evident from that letter of termination that Mr Dent - the reason for Mr Dent's termination was alleged poor attitude, behaviour and inappropriate actions. He was not terminated because he failed or abandoned the course of study. It is clear that the employer perceived that a problem existed with Mr Dent and the problem was, in MAS's words, poor attitude, poor behaviour and inappropriate actions but the problem was not so significant as to be classified as an act of serious and wilful misconduct, for which of course instant dismissal may occur.
PN443
Now, as an employer engaged under the 1997 agreement, Mr Dent has entitlement to all its provisions as applicable to a level one student ambulance paramedic and clause 53 is one such entitlement and it has no limitations attached to it. The employer clearly perceived that there was a problem with Mr Dent but did not engage in the procedures provided for at clause 53 to deal with the problem. Mr Dent was given little or no explanation as to why MAS came to the conclusion that he had a poor attitude, that his behaviour was poor and that he had engaged in inappropriate actions. He was not given the opportunity in any real sense to challenge those allegations.
PN444
Now, the union submits that that would have occurred had he been taken through the disciplinary procedures as those procedures quite specifically provide for explanation and discussion and their practical application in the field, aims for outcomes and solutions to the problems so as to remove the likelihood of further warnings and possibly also termination and as I said earlier, clause 53 is not limited in its applicable to particular employees. All employees are entitled to access those procedures under the enterprise agreement.
PN445
THE COMMISSIONER: Yes, and I think that point is not taken. In fact Mr Flower acknowledges that. I think I am right in saying that, having read his material once this morning. Yes.
PN446
MR FLOWER: Yes, sir.
PN447
MS FORBATH: The student ambulance paramedics are monitored and appraised during their probationary period and where a problem is alleged during this monitoring, it must, in the union's submission, be raised in a fair and proper manner with explanation, discussion and an opportunity to refute any allegations considered to be unfair or untrue. If a problem persists, a warning system must be applied to ensure that the employee understands the seriousness of the situation and is committed to resolving the problems and it is our submission, Commissioner, that the disciplinary procedures at clause 53 have been devised for that reason.
PN448
It is the union's submission that the disciplinary procedures are automatically invoked for all employees where problems are perceived by the employer which can lead to termination. Disciplinary procedures, by design, are intended to grapple with serious perceived problems potentially affecting an employee's future employment. As soon as they are identified, in order to correct the problem both by applying on the one hand a stick, that is the warning, and at the same time applying a carrot, providing a plan of action for overcoming the problem, dealing with the problem such that no further action is needed and the employer can then be satisfied that the problem has been overcome.
PN449
In the case of Mr Dent, the orderly application of the disciplinary procedures did not occur and in our submissions, Commissioner, should now occur to determine the substance of the Metropolitan Ambulance Service's reasons for termination and for Mr Dent to have the opportunity to defend himself. In arguing that MAS should have conducted the monitoring and appraisal of Mr Dent within the framework of the disciplinary procedures, the union is arguing for the application of a fair and just process for Mr Dent and other probationary student ambulance paramedics and any employee, for that matter, who may be in a situation where the employer has concerns about their performance or their behaviour. Access to a fair and just process, which the disciplinary procedures provide, is again an entitlement under the agreement.
PN450
The disciplinary procedures and student probationary provisions remain unchanged in the 2001 MAS certified agreement and continue to have a significant impact on the many hundreds of student ambulance paramedics entering into employment with the Metropolitan Ambulance Service. The union submits that it was not open to MAS to conduct its monitoring and appraisal of Mr Dent outside of the framework of the disciplinary procedures because Mr Dent's suitability for the job was in question when problems were first perceived and this was likely to lead to his termination and also because the correspondence which passed between the Metropolitan Ambulance Service and Mr Dent and between the Metropolitan Ambulance Service and the union all point to the prospect of Mr Dent being terminated or that his suitability for continued employment was under serious threat.
PN451
PN452
MS FORBATH: Commissioner, if I could just very quickly take you to that correspondence. I don't intend to go through all the detail of the allegations and counter claims and so forth, as that is not necessarily the purpose of today, but just to indicate to you that as far back as June, there was concerns expressed in that first piece of correspondence about his unsatisfactory performance. On the second page, at the third paragraph, you will see there that there is reference to the six month probationary period where a student's suitability or otherwise is being determined and further emphasising that:
PN453
Failure to successfully complete stage one will mean that MAS will terminate your employment during the probationary period. Your performance will be reviewed prior to the completion of the probationary period and a meeting will be convened in the week of 3 September to determine your progress.
PN454
THE COMMISSIONER: I think, Ms Forbath, much of this correspondence I am familiar with. I don't know if there is anything that hasn't been dealt with in the very detailed conferences and hearings that preceded today but I don't want to stop you but if there is something new here then I particularly ask you to bring it to notice.
PN455
MS FORBATH: All I put this correspondence up for at this stage is just to demonstrate that the discussions that were going on between Mr Dent and Metropolitan Ambulance Service and the Metropolitan Ambulance Service and the union was all about termination and all about this person possibly not continuing in the job and his suitability, so it was a very serious situation regarding this person's future employment.
PN456
Now, what we submit, Commissioner, is that a further reason why it was not open to MAS to conduct its monitoring and appraisal of Mr Dent outside of the framework of the disciplinary procedures was that Mr Dent had an entitlement under clause 53 which would have provided him with a fair process through which the employer's concerns could be raised and which gave him the opportunity to respond to the allegations and also then provided an option to refer the matters to the Commission if that was necessary.
PN457
Commissioner, the union was then obviously subsequently entitled to raise the matter on behalf of Mr Dent and as an issue of broader concern to all probationary employees under section 170LW of the Act, which of course it did and it is our submission, Commissioner, that we should now be given the opportunity, or Mr Dent should now be given the opportunity to have the allegations raised against him dealt with under the disciplinary procedures in order to test whether they warrant him being terminated.
PN458
Other student ambulance paramedics with whom the Metropolitan Ambulance Service has identified problems subsequent to Mr Dent's case, are now being monitored and appraised when problems arise within the framework of the disciplinary procedures and of course we would further rely on the evidence of Mr McGhie. Mr McGhie's meetings and his correspondence with the MAS are very much indicative of the disciplinary nature of the situation in which Mr Dent found himself in and as he faced the loss of his job and the fact of not conducting that process within the context of the disciplinary procedure was really unfair on Mr Dent and didn't give him the proper opportunity to defend himself in the circumstances. Perhaps if I leave it at that for the moment, Commissioner.
PN459
THE COMMISSIONER: Thank you. Yes, thank you. Are we going to have Mr McGhie now?
PN460
MR FLOWER: Can I perhaps indicate to the Commission to perhaps streamline these things, I, during the course of Ms Forbath's opening, have had the opportunity to read Mr McGhie's signed witness statement and I don't propose to cross examine him, so it would be, in my submission, expedient if that document was just tendered as evidence of the matters that it contains.
PN461
THE COMMISSIONER: Yes, thank you Mr Flower. Yes, Ms Forbath.
PN462
MS FORBATH: Yes, well, that is acceptable because I have no further cross examination of him.
PN463
MR FLOWER: I'm sorry, I didn't mean to - - -
PN464
THE COMMISSIONER: Not at all, Mr Flower. So you don't require this to be proved, Mr Flower. I can accept this as his evidence.
PN465
MR FLOWER: Yes, you can.
PN466
PN467
THE COMMISSIONER: I will ask you to pause though, Ms Forbath, because I will read it. Yes. Thank you, Ms Forbath.
PN468
MS FORBATH: At this stage, Commissioner, I have got nothing more to say.
PN469
THE COMMISSIONER: Yes, thank you. Yes Mr Flower.
PN470
MR FLOWER: If the Commission pleases. Can I had to the Commission two exhibits which - - -
PN471
THE COMMISSIONER: Perhaps I will mark yours first, unless you want, for some reason, to - - -
PN472
MR FLOWER: Yes I do, sir. I want to substitute the one that I faxed because I have got the identical document prepared but with the authorities stapled to the back of it and I will hand a copy to my learned friend.
PN473
PN474
THE COMMISSIONER: Yes, Mr Flower.
PN475
MR FLOWER: And could I also hand to the Commission, at the risk of weighing the Commissioner down with too much paper, a full copy of the May 1997 certified agreement. I think the Commission only has extracts from it. It is a claim - part of the substance of my submission relates to the structure of the document itself and where the various provisions fit within the actual certified agreement so it is, in my submission, of significance to have the actual physical document before the Commission.
PN476
THE COMMISSIONER: ..... corpus.
PN477
MR FLOWER: Exactly, Mr Commissioner. Now, for the purposes of this arbitration, I propose to call Mr Andrew Watson. In terms of a short opening as to what we say, I won't go to the submission in great detail yet, but the crux of it is contained in paragraph 4.4 and the Commission has alluded to this previously and it is this; MAS does not dispute any submission that because student ambulance officers are employees then during the probationary period they will be subject to clause 53 in the event that a disciplinary offence arises. Where it does cavil with the union, however, is to suggest that the disciplinary procedures will apply to situations other than where disciplinary offences are involved and in particular apply to the evaluation process of a probationary employee.
PN478
This is made clear by reference to the requirement that a probationary employee's employment is to be, my emphasis, confirmed by the service. This confirmation process is wide ranging consistently with the nature of probationary employment. It is not to be constrained by references to procedures set down in the award - I should say there certified agreement, for other purposes such as clause 53. I will develop that later by reference to the relevant authorities that deal with the nature of what probationary employment is.
PN479
And lest it be said that I am relying on jurisprudence which is founded upon the Workplace Relations Act unfair dismissal provisions and its predecessors, I have dragged out authorities that deal with the concept itself rather than the concept as it has been developed by this Commission in the context of those provisions. And part of what those authorities say is that - and this may be relevant to the Commission in the context of a 170LW exercise. It is open to the Commission to look at the fairness of what occurred and we say - and this is the purpose for Mr Watson's evidence. In this case a degree of fairness and adequate and full degree of fairness was accorded to Mr Dent in the course of evaluating him for his continued employment and we say emphatically it was done in the context of an evaluation of a probationary employee; it was not done in the context of disciplinary offence.
PN480
And two, lest there be any residual argument outside of the union's current submissions that this man was not accorded fairness, then I will ultimately seek to rely upon the evidence of Mr Watson. If the Commission pleases, if I might call - - -
PN481
THE COMMISSIONER: Yes, thank you.
PN482
PN483
MR FLOWER: Mr Watson, can you tell the Commission your full name and work address, please?---Andrew Watson, care of Hallam Road, Hallam in Victoria, with the Metropolitan Ambulance Service.
PN484
And what is your current occupation?---Operational Group Manager.
PN485
Now, for the purpose of this arbitration, I have had prepared a witness statement. Can I show you a copy of this document, please. Mr Watson have you had a look at that witness statement, before?---Yes, I have.
PN486
Are the contents of that witness statement true and correct?---Yes, they are.
PN487
Can I, perhaps to indicate that - - -
PN488
THE COMMISSIONER: Just stay there, Mr Watson, you see you are in a special place in that box. I have avoided it all my, not just working life, but all my life. But people aren't meant to come near. It is very serious, however, my associate can though, she is special.
PN489
MR FLOWER: Mr Watson, perhaps to indicate your assent, can you date that document and sign it, please. I tender Mr Watson's witness statement.
PN490
PN491
THE COMMISSIONER: I won't mark the agreement.
**** ANDREW WATSON XN MR FLOWER
PN492
MR FLOWER: Now, I just want to ask you a couple of further questions in relation to some matters in that document, Mr Watson.
PN493
THE COMMISSIONER: What else have you got there, Mr Watson, before Mr Flower goes on?---I have just got my notes.
PN494
All right. Well, it might be better, I think, at this stage if you have - have you got a copy of your witness statement?---I have but if I could get a copy of the one I have just signed.
PN495
MR FLOWER: If I can hand a spare copy to Mr Watson.
PN496
THE COMMISSIONER: Yes.
PN497
MR FLOWER: It is just that I have formatted it differently to the one that I gave him previously, sir.
PN498
THE COMMISSIONER: Just have a look at that, Mr Watson, though and make sure that that is the document you signed. And the other material you have got you can just turn away so that Mr Flower can put his questions to you. Could you just turn it upside down or just don't refer to it and Mr Watson will - Mr Flower, rather, will ask you some questions. First, is the document you have got your witness statement?---Yes, that is the one I have just signed.
PN499
Thank you?---Just formatted differently, that is all.
PN500
MR FLOWER: Mr Watson, can I take you to paragraph 5 of your witness statement where you refer to various meetings that occurred. Do you see that?---Yes.
**** ANDREW WATSON XN MR FLOWER
PN501
There was meeting that occurred on 8 June 2001?---Yes.
PN502
And who was present at that meeting?---The 8 June meeting was present was Beata Cuspor the - one of the managers with the Metropolitan Ambulance Service, myself and Rohan Dent. That was held down at MUCAPS which is the Monash University campus.
PN503
And what was the purpose of the meeting?---The purpose of that meeting was twofold. One, was to discuss some issues that Rohan had in regard to issues that he had raised with the union prior to the meeting.
PN504
What sort of issues were they?---In regard to - he felt that he wasn't able to view his personal file at Monash and there were some issues in regard to his performance, some of the things that he still needed to complete under the DAPS course, under the Diploma of Health Science course.
PN505
Sorry, I cut across you there. You said it was twofold. What was the second purpose of the meeting?---There was - okay. And the second purpose was to actually discuss some concerns that MAS had in regard to his current performance within the course and also to discuss some outstanding issues.
PN506
Do you recall what the performance issues within the course were?---One of the main ones was the fact that he had actually failed his driving assessment and that he still needed to complete the supplementary and in that driving assessment there were quite a number of issues raised in regard to his attitude and his behaviour during that test. Rohan actually said that he had never seen that report. We tabled it with him. We left him alone to read it and actually - and discussed that and he acknowledge the receipt of the report.
PN507
Okay. Anything further was discussed with him that you recall?---Some of the early reports from Monash were also discussed with him in regard to, I think, there was one or at least two reports and some of the comments that were tabled. And they were in regard to some of the attitude within class, attitude to learning, also his injury down at Monash was discussed as well.
**** ANDREW WATSON XN MR FLOWER
PN508
Sorry, what was that, Mr Watson, his injury you said?---Yes. He, Rohan, raised with us in regard to talking about some of the performance issues that he had sustained an injury at Monash and also - so we discussed that and where that sat with the course.
PN509
Now, you say this meeting occurred between you, Ms Cuspor and Mr Dent. Did you offer Mr Dent the opportunity to have any representation at that meeting, either through his union or a legal adviser or otherwise?---At the start of the meeting we did offer that and also we made the offer that at any time during the meeting if he wished to stop at any time that was offered to him, representation and also to stop. We outlined the purpose of the meeting to start with - - -
PN510
And did he take up that opportunity?---No.
PN511
Right. Can I - can Mr Watson be shown the exhibit ALHMWU5.
PN512
THE COMMISSIONER: Mr Flower, you are examining Mr Watson now, are you not, about 8 June, is that right, just so that I can make - - -
PN513
MR FLOWER: Yes, yes, sir, I am and - - -
PN514
THE COMMISSIONER: Yes, thank you.
PN515
MR FLOWER: - - - the purpose for the document will become apparent in a moment. Mr Watson, can you have a look at the first document in that bundle, I think it is dated 21 June 2001?---Yes.
PN516
Have you seen a copy of that document before? It has got cc to you on the end of it?---Yes, I have, yes.
**** ANDREW WATSON XN MR FLOWER
PN517
And does that - perhaps have a read of it before you answer this question, but does that accurately set out, in a broad sense, what was discussed at the meeting on 8 June? Take your time before you answer that question?---Well, look, I am very familiar with the letter and the content of it and, yes, it does accurately reflect that - it does accurately reflect that meeting, yes.
PN518
Thank you. Now, just leave the exhibit there for a moment because I might need it for other purposes later. But you say in your witness statement and I am coming here, sir, to the reference of meeting of 11 July. You say in your witness statement there was a further meeting on 11 July 2001?---Yes.
PN519
And who was present at that meeting?---There was myself, Rohan, Steve McGhie, the team manager Noel Dean, Rohan's clinical instructor, Bruce Anders and Peter Swan, another group manager with Metropolitan Ambulance Service.
PN520
What, from your memory, without looking at your notes and they are turned over as we saw before, but what was discussed at that meeting?---The purpose of that meeting was to discuss some serious concerns that MAS had in regard to Rohan's current performance - - -
PN521
Yes?--- - - - particularly in regard to components of the DAPS course which was still to be complete and in particular he was still required to do an airway practical exam and it was discussed with him due to the concerns we had in regard to him making himself available to do that exam. That was made clear, that was one of the components that he needed to complete. However, the more broader concerns were in regard to just his general attitude to learning, his performance and some inappropriate behaviours that he was exhibiting.
PN522
Like, such as, can you - do you recall what they might have been?---The issue relating to - we discussed a file note from his clinical support officer - - -
**** ANDREW WATSON XN MR FLOWER
PN523
Yes?--- - - - which highlighted an opportunity that Rohan was given - considering he had just started, basically, almost the second day working on the road to actually come in and participate in an airway skills maintenance session. Granted, it was at, sort of, a advanced life support level, however, it was a great opportunity to practice. This is considering he still needed to complete - he had failed an airway practical exam at Monash and he still needed to complete that supplementary. And his reaction to being invited to come through was to - and to participate in that was to actually play computer games and actually told the clinical support officer that he had done that a hundred times before.
PN524
Right. Now, can I, again, take you to the exhibit ALHMWU5 and take you to the next document in there which is a letter dated 24 July 2001?---Yes.
PN525
That is written by you?---Yes.
PN526
And that sets out, in summary form, what occurred at the meeting of 11 July?---Yes, that is correct.
PN527
And that letter refers to the probationary period, does it not?---Yes, it does, yes.
PN528
And perhaps going back to the letter of 21 June, that refers to the probationary period?---Yes, it does, yes.
PN529
Now, can I now come to the meeting which occurred on 6 August, which you refer to in paragraph 6 of your witness statement, who was present at that meeting?---The 6 August meeting was Rohan, myself, Steve McGhie, Amanda McKenzie - - -
PN530
Yes, and what, sorry?--- - - - and also, I do believe, but I probably need to be corrected, but David Howe, another group manager with the Metropolitan Ambulance Service.
**** ANDREW WATSON XN MR FLOWER
PN531
Okay, so, what was discussed at that meeting?---That meeting was called to, actually - I mean, MAS had serious concerns in regard to some matters which had already been discussed with Rohan in regard to his poor attitude, behaviour, attitude to learning and the purpose of that meeting was to, actually, give Rohan the opportunity, fair and reasonably, to put forward any response that he may have or any mitigating circumstances in regard to a whole bunch of correspondence that we had supplied to Rohan and to Steve prior to that meeting - - -
PN532
And did he avail himself of that opportunity?---Yes, he did, he actually supplied us with an 11 page document which - - -
PN533
Do you have a copy of that document, by the way, with you here today or not?---I do have a copy, yes.
PN534
Perhaps, could you show me - is it in the witness box with you or not?---It is either here or down there. Yes, here it is.
PN535
Can you, perhaps, briefly, show me that?
PN536
THE COMMISSIONER: You can give that to my associate, Mr Watson.
PN537
MR FLOWER: Okay. So that is a copy of the document he presented to you. Perhaps, leave it out, Mr Watson, because I want to tender it. That is a copy of the document he produced to you on 6 August?---Yes, it is, yes.
PN538
And that is - that was given to you in order, as you say, to allow him to explain things. Is that right?---Yes, we gave him the opportunity in regard to the correspondence that we had provided to Rohan, the clinic instructor reports.
**** ANDREW WATSON XN MR FLOWER
PN539
Well, what did you do when he handed you the document? Did you discuss it at the meeting?---Well, I mean, we were just handed, then, an 11 page document, basically, looking quite detailed. So we reconvened another meeting for the following day.
PN540
Okay, before you get on to that evidence, I will tender that document.
PN541
MS FORBATH: I don't, actually, have a copy of that, Commissioner.
PN542
THE COMMISSIONER: Well, you will, soon, Ms Forbath.
PN543
MS FORBATH: Just trying to find a copy in our file, sir.
PN544
THE COMMISSIONER: Yes?---I mean, that - can I just mention that I have got a few notes on that document but that is not a - - -
PN545
THE COMMISSIONER: Just a moment, Mr Watson, you are in Mr Flower's tender hands at the moment and you will be in Ms Forbath's shortly but, for the time being, all right.
PN546
MR FLOWER: I will come to that in a moment.
PN547
THE COMMISSIONER: We will make a copy of that for Ms Forbath. Are you going to move off that document now?
PN548
MR FLOWER: Off its contents, yes.
PN549
THE COMMISSIONER: Well, perhaps, rather than take the time to make a copy at this stage, perhaps if you show that to Ms Forbath. Yes, go on, Mr Flower.
**** ANDREW WATSON XN MR FLOWER
PN550
MR FLOWER: And you re-convened a meeting the next day you just said, is that right?---Yes, given the extent of the document we felt that we had given a fair and reasonable process, that we had worked through that and - - -
PN551
So you read through the document overnight, did you?---Well, yes, particularly, I did and also, pretty much, the full extent of the next day, sort of checking out the content that Rohan had in regard to the issues that we had raised with him.
PN552
And you mention you had written some notes on it. What do the notes relate to? Are they your evaluation of the document, are they?---Yes, yes, yes, it is just a few notes in regard to, actually, just some checks that I have done. I mean, they are very brief, sort of, notes, so there is not too much there at all.
PN553
Yes, sure. And as a result of reading that document what action did you thereupon decide to take?---Well, in reading that and checking some of the issues that he had - the answers that he had put we felt that they were not adequate, that they, basically, did not address the concerns that we had and therefore the meeting on 7 August took place.
PN554
And what happened at that meeting? Sorry, before you go to that, who was present at that meeting?---Present at that meeting was Rohan, myself, Amanda McKenzie and Steve McGhie.
PN555
Thank you. And what happened at that meeting?---At that meeting I explained that we - MAS had had the opportunity to review the documentation that Rohan had put forward previously and that, in our view, the - Rohan's employment was terminated with MAS based on the grounds highlighted in the letter of termination.
PN556
And that was presented on that day, was it?---Yes, it was.
**** ANDREW WATSON XN MR FLOWER
PN557
And if you can have a look at exhibit 5, again, I think the letter of termination is there, at the back of the document. It is the second last document, I think. Do you see that? Is that the letter of termination?---No, no, I haven't got that here.
PN558
Sorry - - -
PN559
THE COMMISSIONER: You think that is somewhere in those papers that the witness has got?
PN560
MR FLOWER: Yes, it will be - on my copy of the exhibit, it is the second last leaf.
PN561
THE COMMISSIONER: Of which exhibit?
PN562
MR FLOWER: ALHMWU5?---No, I don't have it. I know the letter you are referring to but it is not, actually, in there.
PN563
It is not in your bundle. Can I show you a copy of this document which is exhibit ALHMWU2. I won't further tender it, but that is a copy of the letter of termination that was presented at that meeting, is it?---Yes, that is the letter, yes.
PN564
Thank you, I have no further questions of Mr Watson.
PN565
THE COMMISSIONER: And you found the 11 page document, I am told, Ms Forbath, is that right? That is exhibit MAS5, you have got that?
PN566
MS FORBATH: That is the - is that the termination letter?
**** ANDREW WATSON XN MR FLOWER
PN567
THE COMMISSIONER: No, it is the 11 page document, Ms Forbath.
PN568
MS FORBATH: Yes, yes, we did find it on our file, but it won't have - - -
PN569
THE COMMISSIONER: All right. Do you need some to re-familiarise yourself with that?
PN570
MS FORBATH: I don't think so, Commissioner. We don't have, of course, Mr Watson's notes but I don't know that they are, particularly, extensive.
PN571
THE COMMISSIONER: Well, he has - I don't think they are extensive but he does say that they reflect the - he says he checked it out and took some brief notes. So there are some very brief notes, but have you looked through the exhibit to see what those brief notes are?
PN572
MS FORBATH: Yes, I have.
PN573
THE COMMISSIONER: All right, off you go.
PN574
PN575
MS FORBATH: Mr Watson, prior to the meeting on 6 August, is it correct to say that you had an extensive telephone conversation with Mr McGhie, about Mr Dent's situation, do you recall that?---Yes, there is probably, yes, one or two, yes.
**** ANDREW WATSON XXN MS FORBATH
PN576
And in that conversation would it be correct to say that you said to Mr McGhie that MAS had indicated that they were going to terminate Mr Dent?---The content of that conversation was, basically, highlighting the seriousness, that MAS was dealing with this issue, of and the purpose of that meeting was in view for the termination of employment.
PN577
THE COMMISSIONER: Mr Watson, it will be a lot easier and it will just be smoother, all around, if you focus on the question you are asked and answer that question. Mr Flower didn't object because he let you answer some questions and I let it go, but it will help me if you answer the specific question that is put to you. Will you put the question again, please, Ms Forbath.
PN578
MS FORBATH: Is it correct, in your conversation with Mr McGhie, that you indicated to him that MAS had the intention of terminating Mr Dent?---Yes.
PN579
Sorry?---Yes.
PN580
Yes, okay. Now, it was two matters about his clinical performance that you raised in your evidence and one was to do with his driving and another was to do with an airway practical examination. Can I clarify with you, Mr Watson, whether, eventually, Mr Dent passed both of those requirements of the course?---Yes, he did, yes.
PN581
When Mr Dent tabled with you at the meeting on 6 August his 11 page response were the details of that - contained in that document discussed at the meeting on 7 August?---The - I did mention the fact that we had, actually, looked at the details in the document and we had checked the facts that Rohan was saying against our facts and that - it wasn't extensively gone over, no.
PN582
Did Mr Dent, at the meeting on 7 August, have an opportunity to have further discussion with you about the contents of that document?---No, he did not, no.
**** ANDREW WATSON XXN MS FORBATH
PN583
Did he have the opportunity to discuss with you your version of the facts as you understood them to be?---Not at that meeting but prior to there was many opportunities.
PN584
But not at the meeting on 7 August, is that correct?---No, that is correct.
PN585
Well, what evidence did you provide to Mr McGhie and Mr Dent about Mr Dent's alleged inappropriate behaviour? What did the evidence constitute?---Well, there was a whole stack of things, actually, that we went over. There was a number of - are you talking about the meeting prior to the 7th or the 11 July meeting?
PN586
Yes, I am just talking generally now; forget about the individual meetings?---Okay, sure.
PN587
What evidence was provided to Mr McGhie and Mr Dent, himself, about his inappropriate behaviour?---Well, certainly, the incident I raised before in regard to the invitation to participate in an airway skills session with the clinical support officer considering what he still needed to complete and, certainly, the file note from the clinical support officer felt that that was inappropriate. I quizzed Rohan in regard to that and, basically, didn't really get an adequate sort of response, said yes, I was invited but he did acknowledge that he did continue to play the computer. That is one. The - - -
PN588
Could I just stop you there with regard to that one?---Mm.
PN589
What we are talking about here is, and I seek clarification from you about this, is that the clinical support officer had come to the branch, as I understand it, to provide ALS training, advanced life support training, to an ambulance paramedic, is that correct?---Well, no, well, there was two things. One, he had been there to introduce himself to Rohan, acknowledge with Rohan that he had been briefed in regard to there was a number of issues that were still needed to
**** ANDREW WATSON XXN MS FORBATH
go over with Rohan, in particular, in regard to airway management and the supplementary assessment. He offered all support and left a contact number and also gave him the opportunity to participate in a skills maintenance assessment with Rohan and his clinical instructor. Understanding, this was the first time he had met him as well.
PN590
Yes. But the training session that you talk about, that Mr Dent didn't participate in, that was a training session for other people at the branch, as I understand it. That was part of an advanced life support training sessions?---It was. However, Rohan, at any time, could have - I mean, his clinical instructor who was - - -
PN591
Yes, I am aware of that, but this was a training session for somebody who was already qualified as an ambulance paramedic, in an advanced life support procedure, is that correct?---It was, yes - - -
PN592
It was, yes?--- - - - but it is broader than that.
PN593
Right, thank you, that is fine. Now, there was no actual formal requirement that Mr Dent participate in that training session, is there?---No, no formal requirement, however I - - -
PN594
That is fine. Now, so the fact that he didn't participate in it as a level 1 student what was being taught to the qualified ambulance paramedic would have been far in advance of anything that Mr Dent would have been aware of, would that be correct?---However, he could come across an event at any time - - -
PN595
No, I am just asking you the question, if you could answer the question. What was being taught, if you like, to the qualified ambulance paramedic about advanced life support procedure would have been far in advance of anything that Mr Dent had been taught or was currently being taught?---In part, yes, however, the early part - - -
**** ANDREW WATSON XXN MS FORBATH
PN596
Thank you, that is fine.
PN597
MR FLOWER: Well, let him finish. With respect, Mr Commissioner, my learned friend - sorry, Ms Forbath, has cut across what was a relevant answer.
PN598
THE COMMISSIONER: Well, it may have been relevant and we won't know unless he is able to say something. Yes, go on. Thanks, Mr Flower. Go on, you complete your answer if it is relevant to the question, Mr Watson?---Well, in answer, yes, in part, that is correct. However, the early part of that airways assessment starts at the basic level of assessment and that was the level that Rohan was at.
PN599
MS FORBATH: Right now, so that was the first piece of evidence. He didn't participate in a training session that had been arranged for someone else at a more advanced level that he wasn't required to attend, anyway, but he didn't - so he didn't participate in that, that he had decided to rest and relax elsewhere in the building at the time. That is, basically, the situation, is it?---That is one, yes.
PN600
All right, that is one. What was the other?---At the 11 July meeting I tabled his reports and the concerns that we had in regard to his progress through the course, particularly in regard to the comments that his instructors were writing in regard to his attitude to learning, his behaviour, his isolation from the group, his not willing to participate in scenarios. They were read out aloud to Rohan.
PN601
Well, can you be specific about what was being said about his behaviour? You have said that he had a poor attitude, poor behaviour and he engaged in inappropriate actions. Now, I am looking for specific examples that MAS relied upon in the situation?---I can give you some - am I able to refer to the notes here, Commissioner, in regard to those reports? I mean, because there are about three - there is about three reports that are quite, sort of, written - - -
**** ANDREW WATSON XXN MS FORBATH
PN602
THE COMMISSIONER: Well, Ms Forbath, I don't want to do any damage to your cross-examination but you started off and it might be by reference to the broader issues from - arising, in your submission, from the dismissal letter and you wish to expand the area of questioning that you had moved to. As I understood, you asked him for examples of evidence, was your question, that was provided as to inappropriate behaviour and so on to Mr McGhie and to Mr Dent and as you moved to the second point, the note that I have put is that in response to your question about further examples, the first example was the incident re the airways person coming person. The second example, in response, Mr Watson said at the 11 July meeting, reports were tabled re progress, attitude to learning, behaviour, isolation from group and willingness to participate in scenarios. They are the notes I have got of what Mr Watson said and of course the transcript later, as it always does, will reveal what was actually said and do you wish to pursue those things, or did you want to go to some aspects of description arising from the letter of termination?
PN603
MS FORBATH: What I am seeking in the situation is some sort of clarity about what was actually put to Mr Dent about poor behaviour, poor attitude and inappropriate actions, given that we have gone to this question almost of merit in the situation which I hadn't anticipated we were necessarily going to engage in today but given that Mr Watson has given evidence about the various meetings that were held and what was the purpose of them and briefly what was discussed at those meetings, I feel that we need to tease that out a little further.
PN604
THE COMMISSIONER: Yes. I am not saying you can't ask the question. In response to your question, after the first example that was given, that is about the airways opportunity foregone, as it would be described, the answer was that at the 11 July meeting, reports were tabled re progress, attitude to learning, behaviour, isolation from the group and unwillingness to participate in scenarios. It made me want to pursue some of those things. If you are going to move off them, of course, you are free to.
**** ANDREW WATSON XXN MS FORBATH
PN605
MS FORBATH: Yes, yes. What I am trying to get to is there are a whole batch of reports from clinical instructors and team managers and clinical support officers, Mr Watson, that say many things but in fact, what I am trying to get from you, in a sense, is just a summary of some specific examples that you really pinned your decision on in regard to his termination. Now, you have given us one such incident, if you like. Was there any other specific incidents that you can recall that the MAS felt were of such a serious nature that they had to come to a conclusion that he must be terminated?---Well, certainly on the 8 June meeting, one of the issues that we did discuss and is helpful here in relation to - I mean Rohan had been many opportunities by the staff at Monash, by clinical instructors, for further work, for further scenario work and he only took that up on only one occasion. This is acknowledging that he had an injury at the time, that he had also mentioned the fact that he wasn't being offered further help and yet that was confirmed with him that a lot of help had been given before school, at lunchtime afterwards, but he had only taken that up on the one time and that just further sort of emphasised the issue that was raised in regard to him not willing to participate in an airway practical assessment and obviously continued to play the computer game and that was just the - and they were raised with him on 8 June in regard to the time that we wanted to put in, the offer of help and assistance and that just basically wasn't taken up.
PN606
Fine. But in response to that, he actually did pass stage one. So he passed his academic requirements at Monash University for that first stage one, didn't he?---Well, prior to working on the road, no, he still needed to participate in a supplementary assessment - two supplementary assessments.
PN607
Yes, which we have talked about. That was the driving and the airway management?---Yes.
PN608
He had a supplementary exam and he passed both of those?---Yes.
PN609
And that meant that he has passed stage one?---That's correct.
**** ANDREW WATSON XXN MS FORBATH
PN610
Correct. So he had passed that first academic component of the course and he had then moved on to stage two of the course. Is that correct?---That's correct.
PN611
And it was during stage two of the course that he was actually terminated. Is that correct?---That's correct, yes.
PN612
And stage two of the course is the period during which he would have been in with a clinical instructor, working in an ambulance, on the road, as a member of staff?---That's correct, yes.
PN613
Okay, thank you. Are there any other examples that MAS relied on? You have given us two now. Is there any other specific examples that you relied upon?---At the 11 July meeting, I gave Rohan the opportunity once again, for Rohan to sign a consent form to have his Victorian driving licence checked out. That was given to him at the meeting. This was after 10 weeks of not receiving his licence and he refused to sign the consent form. He wanted to consult with Steve after the meeting. I found that action quite bizarre. At the same time, I also showed him a copy of his application form where two sections of the application form relating to outstanding offences or prior convictions with a yes or no box, that was completely left blank. I asked Rohan at the time - I actually showed the application form to him, why wasn't that filled out. I gave him the opportunity to tick yes or no. He declined to tick yes or no. He didn't really give an adequate answer. I found those actions quite bizarre and inappropriate.
PN614
Okay. Now, two questions in regard to that. One was why was he employed by MAS when you hadn't actually clarified those matters with him? As I understand, one of the requirements for employment is that you have a Victorian driver's licence before you commence in the job, is that correct?---It is true and there are situations - Rohan was employed on an interstate licence and was given an opportunity to supply his Victorian licence and it took 10 weeks for that to happen and every other employee at the time, once they have supplied that, they have the opportunity to sign a consent form to have that licence verified and checked out.
**** ANDREW WATSON XXN MS FORBATH
PN615
But you were satisfied to employ him on his Queensland driver's licence. Is that correct?---His Queensland one, yes.
PN616
And he eventually provided it, albeit 10 weeks afterwards, but he did provide it to you?---He did supply the Victorian licence but he negated to supply the consent form.
PN617
And did you determine that there was anything untoward about his driving history?---Well, he never gave us the opportunity with his consent, to actually check out that Victorian licence.
PN618
THE COMMISSIONER: Ms Forbath, I don't mean to interrupt. I didn't quite hear what you said then Mr Watson, that he didn't ever give you the opportunity to do what?---To actually verify the licence which he had just given to us, which is a standard document that we give to every employee in regard to consent to have it verified under VicRoads and the checks - the necessary checks that need to happen.
PN619
All right. Well, so he eventually gave you a Victorian driver's licence, is that right?---That's correct.
PN620
And did you ask him to give you a consent form to do what, to see if that was - somehow check whether that was a valid licence?---I gave him a consent form - - -
PN621
Sorry, to have him consent to what, Mr Watson?---To have the licence checked out.
PN622
And you mean the police check of any greater substance or to see whether it was a valid licence?---To see whether it was a valid licence, any outstanding convictions on the licence. There is a number of things that can be checked on that. I am not quite sure - - -
**** ANDREW WATSON XXN MS FORBATH
PN623
Can you tell me what it is that you wanted to check?---Well, certainly, yes.
PN624
I want to understand what it actually means, you see, because you - is this right? You were disappointed, you drew some negative inferences from him declining to give you permission to undertake these checks as to the Victorian licence. Is that right?---Yes. I felt it was inappropriate or bizarre. I couldn't quite work it out.
PN625
All right, yes. All right. And what I want to understand is, and I will let Ms Forbath know, because she hasn't moved off this point so I will let her do it and in fact I will desist and let you do it. I realise that perhaps you haven't moved off that point but if you don't I will, Ms Forbath; there is no problem about this. Obviously it went against Mr Dent and I want to understand unambiguously what it was that MAS believed had been denied to them by Mr Dent declining to give the necessary approval to check. Your witness.
PN626
MS FORBATH: Well, perhaps Mr Watson, if I can put the Commissioner's question to you or the Commissioner's issue to you that he has raised and what was it that you were determining - what was it that you were seeking to find out by having him sign the consent form?---Well, there is a number of things. I mean this is a standard procedure for every employee and there is one thing, the amount of demerit points that are on the licence. There is certain limit that they go to where one loses a licence so there could be a risk to the organisation if someone - I am not quite sure what the limit is; it could be 12 or 13 points. If you have another conviction that could actually tip you over. There is also a list that may reveal outstanding convictions, prior convictions, particularly in the more recent times. It also could give us a bit of a snapshot of the driving record. I mean obviously we are employing people to drive emergency ambulances and I mean this is also considering the fact that we have failed the driving test, you know, and there were some, you know, comments in the driving instructors so I was keen for that - to look at that and I wasn't given the opportunity to do that.
**** ANDREW WATSON XXN MS FORBATH
PN627
You needed to know that. But Mr Watson, if this is a matter of such serious concern for Metropolitan Ambulance Service and as you say, it applies to all employees who will be taken on and who may be driving a vehicle, why wasn't this done as a matter of course prior to his employment?---One of the requirements is that you would supply on the date of employment a full driving licence. Now, there are times where we do employ people on interstate licence or in fact overseas licences and we give them a fair and reasonable time to supply the Victorian licence because there is a conversion that you can actually do. Rohan was asked several times during the course of that 10 weeks to supply his Victorian driver's licence.
PN628
So if he had signed the consent form and you had discovered something untoward in his driving history, would this have been cause for him to be terminated?---It may not, no.
PN629
It may not?---No.
PN630
Well, is that a yes or a no?---
PN631
THE COMMISSIONER: Well, I don't know that I ask him to - required to answer that because it is really so hypothetical, Ms Forbath. Who knows what a search might reveal.
PN632
MS FORBATH: Can I ask you whether there was a Federal Police check conducting on Mr Dent?---Yes, there was, yes.
PN633
Yes. Was that done prior to his employment or after he was employed?---No, no, no they are done prior to employment, yes.
PN634
Sorry?---They are done prior to employment.
**** ANDREW WATSON XXN MS FORBATH
PN635
Prior to his employment. And was there anything untoward that came to light during that Federal Police check?---No.
PN636
Mr Watson, when you decided to employ Mr Dent in December 2000, and this is some three months or so prior to him actually commencing employment with you and commencing in the course, you required Mr Dent, as you do with other student ambulance officers, to sign a conditions of appointment document. Are you aware of that document?---Yes, I am aware of that document.
PN637
And in that document that the employee signs some months prior to employment, actual employment, it says here that, at clause 10:
PN638
The employee is to immediately notify MAS of any conviction for any traffic or criminal offence, including any offence against the person.
PN639
Now, did Mr Dent notify you of anything in regard to that?---Well, he certainly notified me that he was willing not to sign that consent form or complete the appropriate boxes on his application form.
PN640
Yes but did he - he didn't notify you of any convictions that he had, is that correct?---That's correct.
PN641
Right. And you presumably accepted that and the conditions of employment document was signed and he commenced employment with you in March of the following year?---That's correct.
PN642
So there was three months in which to determine whether there was anything untoward in this employee's background that might have caused you to have some concerns?---Based on what we were provided, understanding we hadn't been provided with that particular licence.
**** ANDREW WATSON XXN MS FORBATH
PN643
And also in that document, conditions of employment, there was a clause 1 where you remind the employee of the fact of the probationary period, which of course is contained in the enterprise agreement, of six months. You then go on to say that you may offer a further probationary period of up to three months.
PN644
MR FLOWER: With respect, Mr Commissioner, I have given Ms Forbath huge latitude on what the issues are supposed to be before this arbitration today. Now, I can see that I have opened up a fair bit of Pandora's box by calling Mr Watson on the procedure that was followed and the complaints that were raised but the question of what the terms of his employment were and in particular in clause 1 is not a matter for arbitration today. It is not disputed between the parties what the terms are and indeed, last time the document was tendered, so I don't see that this line of cross examination has any relevance whatsoever.
PN645
THE COMMISSIONER: You say the question is irrelevant about the opportunity for a further probationary period? Thank you, Mr Flower. You say that is relevant, Ms Forbath?
PN646
MS FORBATH: Commissioner, the reason I raise this point, and it is the only point I intend to raise in regard to this, it is about - this clause is about the probationary period, which is certainly before the Commission. At the end of that clause it refers, Commissioner, to a further three month probationary period. Now, the reason I wish to raise this with the witness is that (a) it is not a provision that is contained in the enterprise agreement but it may have been - - -
PN647
MR FLOWER: That is conceded.
PN648
MS FORBATH: And that is conceded, but it may have been something that could have been agreed between the parties as being an appropriate course of action for this particular employee; that in a sense, he be given another chance. As it stands, he was actually dismissed before his probationary period ended and what I wanted to put to Mr Watson was whether or not the Metropolitan Ambulance Service had at any time considered - - -
**** ANDREW WATSON XXN MS FORBATH
PN649
THE COMMISSIONER: Well, I think it is easy to allow you to put the question and have the answer.
PN650
MS FORBATH: What I put to Mr Watson was that subject to these conditions of employment that you ask people to sign, did the Metropolitan Ambulance Service at any stage consider extending by agreement his probationary period for a further three months?---No.
PN651
No. And why was that?---We had come to the conclusion, during that first six months, on monitoring and appraising his performance, that we were satisfied that - and after going through due processes, that he wasn't suitable to be offered further employment as an ambulance paramedic.
PN652
THE COMMISSIONER: Yes. Thank you. Yes, Mr Flower.
PN653
MR FLOWER: I have no re-examination, sir.
PN654
THE COMMISSIONER: Mr Watson, I want to ask you, is this right, that there was a particular form, a consent form, which was never signed by Mr Dent, that allowed you to check the status of his Victorian driver's licence, when you eventually got it, and he didn't sign that form. That is so, is it?---That's correct. Yes.
PN655
And then there is something else that you referred to. You say earlier on in your evidence that he didn't sign the yes or tick the yes or no boxes. What is that that he didn't do? For some part of a form that he left incomplete and you have raised it?---I think we have a copy of it today if you - - -
PN656
Well, just tell me what it is, Mr Watson?---Look, it is two questions in regard to any outstanding convictions, prior convictions, things that we need to be aware of, of a criminal nature, just roughly in those sort of terms.
**** ANDREW WATSON XXN MS FORBATH
PN657
And is that on his application for employment form?---Yes, yes.
PN658
And is there one or two questions with a yes or no box?---There is two questions.
PN659
Two separate questions?---Two separate questions with clearly yes no box and neither of them were ticked.
PN660
And one refers to prior convictions, does it? Is that what one refers to?---Yes.
PN661
And what does the other refer to?---I mean I'm going from memory. If you want - - -
PN662
Well, it is your memory we are testing, I suppose, but what do you say, if one is about prior convictions, what is the other about, do you remember?---Any outstanding offences or anything of a criminal nature and I think there is also a timeframe there within the past.
PN663
Thank you. Anything arising from that Ms Forbath or Mr Flower?
PN664
MR FLOWER: No, sir.
PN665
THE COMMISSIONER: Yes, Mr Flower is going to ask you a question.
PN666
MR FLOWER: No, no, no, there is not, sorry.
PN667
PN668
THE COMMISSIONER: If you have got any of my witness statements, don't take them away. This is the problem of the witness statements being provided to the Commission and then going down to the box because they are always spirited away.
PN669
MR FLOWER: That concludes the evidence for the ambulance service.
PN670
THE COMMISSIONER: Thank you. Well, I think I would hear your submission, Ms Forbath, and then I will hear from Mr Flower and you will have a reply.
PN671
MR FLOWER: Yes, yes, that's fine by me.
PN672
MS FORBATH: Commissioner, my submissions that I made earlier, Commissioner, are my submissions.
PN673
THE COMMISSIONER: Yes, I realise that I bopped you along a bit there.
PN674
MS FORBATH: That is all right but what I would like to do, if I have been given an opportunity, I would like to just give the Commission a copy of that. I know that - if I can just table that with you Commissioner, and it is an outline of my submissions.
PN675
PN676
MS FORBATH: Can I just say, Commissioner, that the only tiny variation to it is the numbering of the exhibits, as you had indicated to me that the termination letter was already an exhibit, so that - and the later exhibit. I have tabled them as exhibits 1 and 2 pertaining to the submission but obviously that numbering is a bit out so if you would just take that into consideration when you are reading it.
PN677
THE COMMISSIONER: Yes. And is it right, Ms Forbath, that you followed this helpful outline of submissions reasonably faithfully this morning?
PN678
MS FORBATH: Yes, I did.
PN679
THE COMMISSIONER: All right, thank you. Yes, Mr Flower.
PN680
MR FLOWER: Thank you, Mr Commissioner. I don't - you have already got a copy of my written submission, together with the relevant authorities. In my submission, perhaps unusually for a lawyer, it is fairly crystal clear, so I don't propose to read it. I do, however, wish to take the Commission to the relevant passages in the authorities that I rely upon.
PN681
THE COMMISSIONER: I will have to start asking practitioners, Mr Flower, are your submissions crisp and clear and put them to the test. I wonder how many self-serving answers I will get. Certainly my decisions are always of that character and yes, go on.
PN682
MR FLOWER: Can I take the Commission first - and this is dealing with the essence of what a probationary employment period is, and it is important in this case because we say that what was being done here was not an invocation of any disciplinary procedure, nor facts that gave rise to the necessity to do that. We say emphatically that it was an evaluation and assessment procedure of a probationary employee. That begs the question, well, what is a probationary employee and what is the nature of that assessment procedure?
PN683
If I can first take the Commission to the relevant authority, it is a 1974 - it has got some age on it now, of this Commission, Commissioner Stanton, in the airline hostess's case which is reported in the 1974 Australian Industrial Law Review and that is the first case that is extracted behind the submission. The relevant passage appears in the second column, about a third of the way down. Does the Commissioner have that document?
PN684
THE COMMISSIONER: Yes.
PN685
MR FLOWER: Sorry, sir.
PN686
THE COMMISSIONER: No, go on.
PN687
MR FLOWER: And there the Commissioner said, starting with:
PN688
To some extent I agree with Qantas' view.
PN689
It is about the third paragraph. And the Commission continues:
PN690
In my view, probation is (1) an extension of the selection process, (2) a period of training, (3) a time for criticism, assessment and adjustment to standards of performance and conduct.
PN691
The Commission then goes on to say that he did not agree that in any circumstances a tribunal couldn't interfere with a probationary appointment and this is, as I outlined earlier, is the purport of Mr Watson's evidence. He goes on:
PN692
If, for example, it was shown that the decision to terminate had been based solely on false information, false accusations or misunderstanding of the alleged facts of an incident ...(reads)... who was not meeting the employer's standards.
PN693
Now, we say strongly, with respect, that what Mr Watson and the other relevant people were doing in this case was not a de facto disciplinary procedure whereupon clause 53 would be drawn in aid, but precisely the sort of exercise that Commissioner Stanton is referring there, that is necessary to a proper, and I add fair, evaluation of a probationary employee. He was given appropriate counselling and warning that this employee was not stacking up.
[12.05pm]
PN694
Can I take the Commission then to the next case which makes the same point - indeed, follows the air hostess's case, which is a decision of the Industrial Relations Commission of Queensland in 1991, reported at vol 33 of the AILR, which is the next case and briefly refer - I won't read it out, but the relevant passage starts in the third column under the heading, "Reinstatement of the Probationary Employee", where the Commissioner goes to the definition in the dictionary.
PN695
The Commissioner then goes to the English case of Hamblin and the passage that I just read out in the air hostess's case. The next case is only marginally relevant. It is a recent observation of Commissioner Grainger on the nature of what probation is and relevantly - the relevant passage is at page 7 of the document, in particular paragraph 20 and I simply rely on that as a general observation as to the nature of probation and qualifying period of employment. Perhaps less relevant to the facts of this case and I have also extracted for the benefit of the Commission, or I hope it is the benefit of the Commission, will be the Ealing case. The relevant passage is the last page. At point 10 where the English Tribunal says:
PN696
The fact remains that a probationary period is very much a trial period. The probationary employees knows that he is on trial and that he must put his right foot forward and establish suitability for the post. The employer on his side must give the applicant a proper opportunity to prove himself, but he reserves to himself the right to determine the employment on a month's notice, provided he has reason for his action.
PN697
So, again, that bears out in our submission the nature of what probationary employment is and the exercise that needs to be done for a proper and fair exercise of the rights relating to that status. Now, the submissions then go on to deal with the document - the certified agreement itself. Now, as Ms Forbath has indicated, the terms and conditions of employment are annexed to the document as appendix F. Attached to appendix F are various attachments, including attachment 4 to which extensive reference has already been made. Now, we say that attachment 4 specifically deals with the situation of a probationary employee. Perhaps applying - - -
PN698
THE COMMISSIONER: What is attachment 4, Mr Flower? I have lost my - - -
PN699
MR FLOWER: It is easier - sir, perhaps can I take you to the folder - can I take you to the folder that I handed to you.
PN700
THE COMMISSIONER: Okay. The folder, of course. That's it - the folder. That is it.
PN701
MR FLOWER: It is page 84 of the folder. That is the easiest way to do it, I think.
PN702
THE COMMISSIONER: Is it really page 84? I see.
PN703
MR FLOWER: Sorry, the one I handed you this morning.
PN704
THE COMMISSIONER: Yes, the complete document. Very well. Thank you.
PN705
MR FLOWER: Now, that - that is attachment 4. And it is a small point, but we say not a point to be overlooked that that refers to special conditions applying to student ambulance officers. We say adopting basic tenants of statutory and contractual interpretation, the specific over-rides the general, ie, in relation to student ambulance officers the attached - sorry, the appendix F agreement as it applies to them is specially qualified by reference to attachment 4. Attachment 4 clearly provides for the probationary period of six months. And to that extent we say that when evaluation of performance occurs in relation to a probationary employee the principal repository of the parties rights is at attachment 4.
PN706
And if a bona fide evaluation process is going - is being attended to consistent with the general authority I have referred to before, it is done pursuant to the rights of a probationary employer and it is not to be qualified, in our submission, by reference to clause 53 dealing with disciplinary procedure because, in our respectful submission, what is occurring here is firmly an evaluation procedure. It is not a situation which is the threshold requirement for clause 53 of "where disciplinary action is necessary". This was not a situation where disciplinary action was necessary.
PN707
It was simply a warning process saying, "you do not come up to scratch in certain areas, and if you don't improve your probationary period, relevantly for the purposes of - sorry, your employment relevantly for the purposes of attachment 4, will not be confirmed", before their appointment is confirmed. Now, least there be any doubt about that with respect, Mr Commissioner, it is made clear by the union's exhibit number 5 which in outline document - a series of meetings that have occurred between the employer and Mr Dent - and with respect it is crystal clear and if my submissions aren't crystal clear these letters are. Page 2 of the letter, following the meeting of 8 June - the letter of 21 June:
PN708
As you are aware, you are currently within the six month probationary period -
PN709
etcetera -
PN710
MAS requires you to successfully complete stage 1.
PN711
The purpose of the six month probationary period is to provide MAS and the student the opportunity to determine the suitability or otherwise of becoming a student ambulance paramedic. The same with the letter of 24 July, following the meeting of 11 July.
PN712
As discussed with you at this meeting you are currently in the student probationary period and during this time you are being monitored and assessed.
PN713
Quite, we say, rhetorically. That is precisely what was happening here, that is, it was being done, we say within the meaning of the authorities appropriately and fairly and ultimately when one comes down to answering the very specific and directed question that the Commissioner directed be the ambit of this arbitration, the answer is emphatically "no", that is it is not part of the process in assessing a probationer that the framework of the disciplinary procedures be carried out. And two, it is not necessary, there is no automatic indication of the disciplinary procedure whenever the suitability of performance of a probationer is to be evaluated.
PN714
To so hold we say, with respect,runs counter to years of authority, it runs counter and is illogical with all concepts relating to probationary employment and for all of those reasons we submit that the application in all of its manifest forms be dismissed, if the Commission pleases.
PN715
THE COMMISSIONER: Yes, thank you, Mr Flower. Yes, Ms Forbath.
PN716
MS FORBATH: Commissioner, I think the Commission's indulgence in having an opportunity to make a final written response, given that I only received this documentation from Mr Flower at about five o'clock last night, a number of the cases, particularly the Hamblin case being a British case is not immediately available. I did check with my own legal counsel late last night to see if we could get our hands on that one quickly but it wasn't immediately available.
PN717
So in all the circumstances, I would like to have the opportunity to have a close look at these authorities and to be able to respond to the argument that Mr Flower has put up in his final submissions and, Commissioner, I am very happy to do that and very - it will be a very short submission can I say, and we would seek a little perhaps a week - by the end of next week, if that was agreeable to the Commission to provide that final response.
PN718
THE COMMISSIONER: Yes, do you want to be heard on that, Mr Flower.
PN719
MR FLOWER: Just briefly, sir. I mean - am hesitant to trample over the rights and the fairness of the union, but this legal submission is a simple submission. It is plain on the face of what you directed on 17 July, what was going to have to be argued, and I mean I have dealt with their submission. I was handed that this morning on the bar table before Ms Forbath got to her feet and there has got to be some formality in - some finality in all of this.
PN720
THE COMMISSIONER: Yes.
PN721
MR FLOWER: But that being said, I mean there is no great prejudice to us in exceeding to it, I am just a little bit perhaps annoyed that it is necessary at all.
PN722
THE COMMISSIONER: All right. Well, we certainly don't want any annoyance in the ....., that would never do, now - but Ms Forbath you volunteered, and it is not really the shortness of it, but I don't want to invite a broadening of the response if it goes - if it is to be and how do I put this, it is your response - you have heard the case, if it goes off somewhere and Mr - and a walloping great big reply comes in then you know what will happen and I would foreshadow that I would go along with it, there would be a request from Mr Flower that he be given yet a final reply and so on.
PN723
If you are disadvantaged by the reference to the English case, it was an Appeal not so long ago, here that a member by a practitioner that a member had relied on a decision of a foreign judge as its (a) accepting a or having regard for an English case, but if you are so disadvantaged by that that you don't want to put you submission now, well, I will allow you to put a written submission.
PN724
You volunteer that you don't anticipate that it will be - I think you said it would be very short, or - it is really and I am content to rely on that assurance from you and it is not really so much the length of the submission but it is the compass of the debate. We conduct the case here. It was my preliminary intention today to give - to give an outcome even if then there needed to be a reservation of full reasons, because unfortunately for other reasons I have got decision reserved, but to have people hanging about in the state of suspended animation just cannot be in anyone's interest.
PN725
One can only give short reasons at a hearing. You want to give written response for the reasons - particularly the English case, I will go along with that but it does then mean that I will have to provide - I will have to reserve - I don't have any way I can give short non reasons so that parties can then consider their positions and certainly in the dismissal jurisdiction the rules allow for them - a request to be made for full reasons and you have then got to go away and rustle it up with the delay, and you - to provide for fully considered reasons obviously after the transcript is obtained and so on.
PN726
It all goes to time, but I will give - perhaps that is a long winded way of saying it, but I want the parties to see what turns on these times. I will give you the opportunity to provide a final submission as to the authorities along the lines that you have just outlined and then - and if you please send that then within a week - if it is a week you seek, a week I am happy with. Give a copy to Mr Flower and, subject to any - a request that he have something further - that he should be allowed to have something further to say, I would then hope to be able to get a decision to the parties as soon as possible. All right?
PN727
MS FORBATH: Thank you, Commissioner. Yes, I appreciate that and it is very in our minds too to try and bring this to a finality and it is not our intent to canvass other issues, it is simply to be in a position to respond to the argument that has been raised by Mr Flower and the authorities that he has used to underpin those, particularly on that whole issue of probationary employment - - -
PN728
THE COMMISSIONER: Yes.
PN729
MS FORBATH: - - - which is, I suppose, germane to the whole matter here.
PN730
THE COMMISSIONER: Well, you wouldn't want to lose it because - a key - the key argument that you might have been able to put to skittle Mr Flower was not available to you because you hadn't seen that English case. I do of course - this is meant to be a practical and helpful suggestion, the library is always open to members of the public from - to the parties obviously, from quite early in the day and it is sometimes useful to go up there and have a look at the cases, and it is a very good library.
PN731
I will adjourn now, sine die. I will receive that information. Mr Flower, you will be given an opportunity. Perhaps it might be as well, when you see it and read it, if you can communicate with my office that you are content to rely on your submissions, then I will go full steam ahead and I will try and get the decision as soon as possible.
PN732
MR FLOWER: Yes, I will do that, sir.
PN733
THE COMMISSIONER: We will do it on that basis.
ADJOURNED INDEFINITELY [12.23pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #ALHMWU5 BATCH OF CORRESPONDENCE BETWEEN THE METROPOLITAN AMBULANCE SERVICE AND MR DENT PN452
EXHIBIT #ALHMWU6 WITNESS STATEMENT OF MR McGHIE PN467
EXHIBIT #MAS3 SUBMISSIONS OF MR FLOWER WITH AUTHORITIES ATTACHED PN474
ANDREW WATSON, SWORN PN483
EXAMINATION-IN-CHIEF BY MR FLOWER PN483
EXHIBIT #MAS4 WITNESS STATEMENT OF ANDREW WATSON PN491
CROSS-EXAMINATION BY MS FORBATH PN575
WITNESS WITHDREW PN668
EXHIBIT #ALHMWU7 OUTLINE OF ALHMWUs SUBMISSIONS PN676
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URL: http://www.austlii.edu.au/au/other/AIRCTrans/2002/3560.html