C2002/3220, Transcript of Proceedings [2002] AIRCTrans 3724 (23 September 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2002/3220

MISSION AUSTRALIA

and

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION and ANOTHER

Notification pursuant to section 99 of the
Act of a dispute re refusal to attend medical
examinations

C2002/4446

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION

and

MISSION AUSTRALIA

Notification pursuant to section 99 of the Act
of a dispute concerning a grievance

SYDNEY

10.38 AM, FRIDAY, 6 SEPTEMBER 2002

Continued from 11.07.02

PN12

THE COMMISSIONER: Good morning. I apologise for the delay. I'll take appearances, please?

PN13

MR J. PIOTROWSKI: I am from the Australian Services Union and with me is MS K. LEE, also from the Australian Services Union.

PN14

MR J. MORRISSEY: I am a solicitor appearing for Mission Australia, with MS T. HICKEY and MR P. CRIBB from Mission Australia. I seek leave to appear today, Commissioner.

PN15

THE COMMISSIONER: Is leave opposed?

PN16

MR PIOTROWSKI: I think last time we were before the Commission we raised concerns about, I suppose, consenting to leave but have had direction from the Commission on that.

PN17

THE COMMISSIONER: Except there is an additional matter this morning, isn't there?

PN18

MR PIOTROWSKI: Yes, that's right.

PN19

THE COMMISSIONER: So do you object to Mr Morrissey's appearance in the second matter?

PN20

MR PIOTROWSKI: Yes, we do, Commissioner.

PN21

THE COMMISSIONER: Well, Mr Morrissey, perhaps you can run through why you should be granted leave to appear, briefly?

PN22

MR MORRISSEY: Commissioner, in relation to the matter concerning refusal to attend a medical appointment: since the last two or three weeks I've been responsible for the day to day management of that on behalf of Mission Australia as distinct from the client managing some issues that arose and it was appropriate for me to take charge of that.

PN23

As a result of that inability to reach an agreement we asked for the matter to be relisted and at approximately the same time the issue in relation to the grievance was raised as well in a notification of dispute. I've taken instructions in relation to the matter and I'm quite familiar with it. I think it may be of assistance to the Commission in endeavouring to get this matter resolved if it was possible for me to be able to continue here.

PN24

THE COMMISSIONER: Thank you. Yes, Mr Piotrowski?

PN25

MR PIOTROWSKI: In relation to the medical examination issue, we accept that Mr Morrissey has been acting on behalf of the employer in this case and probably will aid the Commission in achieving our role of reaching a conclusion today. So we accept that.

PN26

In relation to the other matter, it is one which we feel does not need to get bogged down in unnecessary technical legal argument but we would seek to be able to sort that out with the representatives from Mission Australia who are here today.

PN27

THE COMMISSIONER: Given the history of these matters, I do grant leave to Mr Morrissey to appear as I believe he will be of assistance not only to his own client but to the Commission as well. Do the parties consent to joining these two matters?

PN28

MR MORRISSEY: We don't have any issue in relation to joining them.

PN29

THE COMMISSIONER: Is it the same matter in effect?

PN30

MR MORRISSEY: Commissioner, they both flow from the same chronology of events and one flows from the other. So it seems to me that to deal with the matters independently wouldn't necessarily aid the resolution. It's probably appropriate to deal with them both together.

PN31

THE COMMISSIONER: Mr Piotrowski?

PN32

MR PIOTROWSKI: Yes, I agree. I think probably the matter relating to the grievance, being the earlier event, in the chronology. I would be better if that was dealt with first and then we can move on to the issue of the medical examination.

PN33

THE COMMISSIONER: How you deal with it is up to you but do you object to the joining of the matters?

PN34

MR PIOTROWSKI: No, Commissioner.

PN35

THE COMMISSIONER: The matters will be joined. Will you go first, Mr Piotrowski?

PN36

MR PIOTROWSKI: There have been problems with the Mission Employment Katoomba office for some period of time in terms of achieving particular performance targets. Mission Australia's south west Sydney regional management took an approach to increasing performance targets at that office. We believe that their approach involved excessive monitoring, in effect giving inappropriate strategies, putting pressure on staff to reach unrealistic targets. The target was broadly stated as being, achieve a three star rating under the job network system, so that their contract would roll over. No specific targets were set. Staff were only told to improve their outcomes, get those three stars by hook or by crook.

PN37

They did not receive adequate support for developing appropriate strategies to achieve those better outcomes. Instead they were given an environment of excessive monitoring and threats. This included telling the local manager that if he didn't get rid of Linda Rogers he would be disciplined. In summary, this tactic has resulted in stress and sick leave, not just from Ms Rogers but from other staff including, I understand, the manager of the site.

PN38

On 26 November 2001 Ms Rogers, who is a senior client manager with the Mission Employment Katoomba office, lodged a grievance against the Mission Australia Western Sydney regional management in relation to the extreme pressure being placed on Katoomba staff and the stressful situation experienced in that office.

PN39

An investigation into the grievance was conducted by Mr Trish Hickey of Mission Australia's Human Resource Department. On 18 December 2001 a meeting was held between Ms Rogers, Ms Hickey and the Regional Manager, South West Sydney, Mr Graham Bagwanna. At this meeting Mr Bagwanna stated that this was the end of the grievance and that he would not be pursuing it further.

PN40

On 20 February 2002 the ASU wrote to Mission Australia expressing concerns that the grievance policy had not been followed in the conduct of the investigation. We received a reply from a Mr Cribb, an employee relations adviser with Mission Australia, that, in our opinion, did not address several of the issues raised in our correspondence.

PN41

We wrote once again, on 31 July 2002, to Mr Cribb highlighting parts of the grievance policy which the union does not believe had been followed in the handling of the grievance. The union also sought clarification of whether Mission Australia considered that the grievance had been dealt with appropriately and in accordance with the Mission Australia policies and procedures. We received a reply to that correspondence yesterday and our position is that it still does not adequately address our concerns.

PN42

After the meeting of 18 December Ms Rogers phoned Ms Hickey and said that she wasn't happy with the outcome of her grievance and asked what she could do next. It was around Christmas time. Ms Hickey said that it had been handed over to Graham Bagwanna and she was told to wait until after Christmas to look at the options. In January 2002 Ms Rogers sought to contact Ms Hickey several times to clarify the options and it seemed clear that the matter was basically closed. There were some potential options, mainly of being transferred to another area.

PN43

There are several issues in relation to the grievance that we don't feel have been adequately addressed by the investigation and I think that was made clear by Ms Rogers and certainly is documented in the minutes o the meeting between Ms Rogers, Ms Hickey and Mr Bagwanna on 18 December, one of those being that Robin Whytlock, a member of the regional management team, directed the Mission Employment Katoomba manager, Steve Hodge, to get rid of Linda Rogers or face disciplinary action.

PN44

Secondly, Kay Hubbard, another member of the regional management team, copied files from Ms Rogers' personal work station without her consent and Mission Employment Katoomba staff suggestions for strategies to improve outcomes have been given no feedback from the regional management. These were issues that go to the heart of her grievance that was lodged and were not adequately addressed by the investigation.

PN45

Also, aspects of the Mission Australia grievance policy were not adhered to. I can quote some policy numbers: 13.5, 13.7, 13.11, 13.13 and parts of attachment 1 to that policy.

PN46

THE COMMISSIONER: If somebody gives me the policy some time I'll know what they are then.

PN47

MR PIOTROWSKI: Yes. Most importantly, the minutes of 18 December demonstrate that the Regional Manager was making the decision not to pursue aspects of the grievance and to end the matter. We have stated a number of times that we felt that it was inappropriate that, as it was the Regional Manager of the office whom the grievance was lodged against, it was inappropriate for him to be making the decision to end the matter and not to pursue aspects of the grievance.

PN48

Also, no external mediation was offered at any stage and the policy provides, and I think appropriately, that where one of the parties seeks - and particularly if the complainant seeks - that external mediation be provided, it should be. This was not done and, I think, to the detriment of the process because I think it would have aided it, particularly after the meeting of 18 December where it was decided not to pursue the matter any further. The minutes of that meeting clearly indicate that our member, Ms Rogers, was not happy with the resolution of her grievance and she certainly had made Ms Hickey aware of that afterwards.

PN49

Also, in terms of the flaws in the process, the policy does require and does provide for all documentation to be provided. There were several meetings that took place around this matter where no documentation has been provided. These include meetings between Trish Hickey and Linda Rogers on the morning of 18 December, before the meeting with the Regional Manager, and minutes of the meeting with the Katoomba Mission Employment staff which occurred after the meeting with Mr Bagwanna on 18 December. Also, notes from conversations between Trish Hickey and Linda Rogers have not been provided.

PN50

In total we believe that the grievance policy was not adhered to. We seek acknowledgment of that and also acknowledgment that there were outstanding issues relating to the grievance not appropriately addressed, acknowledgment that external mediation should have been offered and wasn't, acknowledgment that the performance targets to achieve the three star rating were unrealistic and an apology for the way in which the grievance was handled. Clearly it is our position that the way that this grievance was handled contributed significantly to Ms Rogers' medical condition, which is the subject of the other matter before us today. Thank you very much, Commissioner.

PN51

THE COMMISSIONER: Perhaps, before you do sit down, you can move on to the question of Ms Rogers' alleged medical condition. There were some arrangements made at the end of the last conference on 11 July, which I presided over. What happened about those?

PN52

MR PIOTROWSKI: We reached an agreement here about a certain process to follow that would safeguard her confidentiality and her privacy.

PN53

THE COMMISSIONER: As I remember, that was decided after you were in telephone contact with Ms Rogers, who agreed to it.

PN54

MR PIOTROWSKI: Yes, yes.

PN55

THE COMMISSIONER: So it didn't happen?

PN56

MR PIOTROWSKI: No, Commissioner.

PN57

THE COMMISSIONER: Why didn't it happen?

PN58

MR PIOTROWSKI: There were breaches of the agreement made that caused us to lose faith in the process.

PN59

THE COMMISSIONER: All right. You might as well tell me about them.

PN60

MR PIOTROWSKI: The agreement - and I have got it in more detail but in summary - was that we would agree to a form of words that would be provided to a doctor to have a medical examination, that that form of words would simply go to the fact that this is her job, so a job description would be provided: "Can you tell us whether she is fit to undertake her normal duties?"

PN61

I was negotiating with Ms Hickey over a period of time in establishing doctors that we're happy with for her to be referred to - that was reasonably simple - and then - - -

PN62

THE COMMISSIONER: So you found a doctor on whom you were agreed?

PN63

MR PIOTROWSKI: Yes, Commissioner.

PN64

THE COMMISSIONER: Right. So you found a doctor.

PN65

MR PIOTROWSKI: Yes, we found a doctor. Then we waited and on numerous occasions I sought the draft form of words from Ms Hickey. That draft form of words never came. There was a clear understanding that they would come. When they finally did come they had already been sent to the doctor and the letter was highly inappropriate.

PN66

THE COMMISSIONER: Was the form of words offensive to you?

PN67

MR PIOTROWSKI: Yes, yes, they were. It contained a wide range of inaccuracies and misinformation that led us to believe, and it seemed to be, that it was the intention somehow to bias the opinion of the doctor. It was clearly unacceptable.

PN68

Ms Rogers is residing in Wagga. She had come to Sydney for the examination. When she found out the information that had been provided by her employer to the doctor she informed the doctor that it was in breach of an agreement made between her, the union and the employer before the AIRC and that she was not prepared to undergo the examination, which the doctor respected.

PN69

After that we wrote to Mission Australia explaining our concerns about that breach and how it had undermined our efforts to have this matter resolved. The matter was then referred to Mr Morrissey who dealt with me in again trying to arrange a medical appointment. I provided Mr Morrissey with a list of three doctors that we would contact on the understanding that it would be the doctor who was first available from that list of three. I sent him that list by fax and stated very clearly, "Can you please contact me to confirm that it is okay for us to contact these doctors to make the appointment?"

PN70

The next thing I received was a date for the medical examination. Our concerns about representatives of the employer contacting the doctor and ensuring that no prejudicial comments or information were provided weren't adhered to. Our member was very very distraught at what she felt was yet again another breach of the faith in the process that we had agreed to and the examination was once again cancelled.

PN71

THE COMMISSIONER: Will your member agree to a medical examination if I come up with a form of words here, or will she just decline to attend any medical examination? Let's cut to the chase about this.

PN72

MR PIOTROWSKI: Yes, all right. There has been another event that has occurred. That w certainly her instruction to me, to get a form of words from the Commission. What has happened most recently is that this sick leave relates to a workers compensation claim which she lodged earlier on - - -

PN73

THE COMMISSIONER: So she is on workers compensation leave?

PN74

MR PIOTROWSKI: It was denied, the liability was denied by the employer and it is under appeal.

PN75

THE COMMISSIONER: When did that occur?

PN76

MR PIOTROWSKI: Earlier on this year

PN77

THE COMMISSIONER: Post our last meeting?

PN78

MR PIOTROWSKI: Well, no. It was knocked back a while back, I think in February of this year, and then she went onto sick leave because she was still obviously sick. Her solicitors have been pursuing a process of appealing that through the Workers Compensation Commission and date have been set for that. On 16 September this year they will be having an initial meeting and a further date is set for 30 September at which I understand a decision will be made. At that meeting the solicitors acting for ms Rogers will be formally requesting an independent medical assessment. So we propose that we await the directions from that process.

PN79

THE COMMISSIONER: In the meantime Ms Rogers is still on sick leave payments from Mission Australia, is she?

PN80

MR PIOTROWSKI: Ye, Commissioner.

PN81

THE COMMISSIONER: Well, no doubt MR Morrissey will tell me but I can't see how there can possibly be a problem with words. What it comes down to, as I understood, was the employer wants to ask the doctor whether your member is sick or not.

PN82

MR PIOTROWSKI: Yes, Commissioner, but it should be put on the record that Ms Rogers actually does have a medical certificate covering her for this period, I understand, up until October from a duly qualified medical practitioner, as is required under the relevant award.

PN83

THE COMMISSIONER: I'm intrigued and no doubt I'll find out more when we go into conference about this. Mr Morrissey?

PN84

MR MORRISSEY: Commissioner, I'll deal with the first matter in relation to the grievance issue. Mission Australia has a policy of reviewing the performance of its various employment services' operations. The nature of an employment service operation is that they receive contracts from the Federal Department of Workplace Relations to carry out the employment services for a period of time.

PN85

The various centres all have star ratings, one, two, three, four star ratings and on the star rating will depend whether that contract will be rolled over or will depend whether the contract would be required to be re-tendered for, or it may be that the contract will simply not be offered to the provider of the service.

PN86

There has been a general policy of Mission Australia to continually review the work that's carried out by its employment services officers to ascertain that they are meeting what their star rating requirements are from time to time. Mission Australia has a policy of providing ongoing assistance and support and counselling and training for the managers and the other people who work in the various offices.

PN87

There's a significant employment services department in Mission Australia that's responsible for the counselling and guiding and providing strategies to those persons who work in those areas. Ms Rogers had previously worked in various other, I understand, community service activities in Mission Australia. She voluntarily agreed to work for Mission Employment and worked out of the Katoomba office as a client service manager.

PN88

The Katoomba office star rating had slipped. The number of satisfactory placements etcetera had slipped over a period of time and Mission Australia adopted its usual policy in meeting with the managers of the service to provide them with some direction as to what would be required to improve the rating. That also - provisions and directions, they also met with the other staff members and that came from the regional office management, the operations managers and then from the regional manager and this was the usual procedure that would be followed by Mission Employment in dealing with any of the officers that needed to improve their star rating.

PN89

The Katoomba office was an office that had a significant slip in its successful outcomes as these particular matters are called and it needed to have particular emphasis made on the requirements to meet those outcomes. The targets were set and as part of the resetting of the targets, it was important that the people understood that there had to be make up or catch up targets to be able to meet the requirements of that star rating.

PN90

Strategies were put in place for those various targets. It's my understanding that in November of last year, there have been certain issues that were raised in respect of Ms Rogers' performance and particularly in relation to her dealings with co-workers and it was felt it was appropriate that she have an opportunity to explain those issues to the operations manager.

PN91

A meeting was set for late November. She was asked if she could bring along a support person, if she would bring along a support person. She nominated Ms Hickey as a support person. Ms Hickey said that in her role as the workers compensation co-ordinator for Mission Australia, it wouldn't be appropriate for her to do so and she was asked to bring along another support person. She didn't have another support person and declined to attend that meeting.

PN92

That meeting was ultimately never held, Commissioner. Then on 26 November, Ms Rogers lodged a grievance. Mission Australia has quite a detailed policy and we can provide you with a copy of that policy relating to the investigation of grievances. In this case, it would appear that the initial circumstances relating to the grievance was a phone complaint by Ms Rogers to Ms Hickey setting out her concerns in relation to the performance issues that had been raised relating to the Katoomba office of Mission Employment.

PN93

Questions were asked as to how she could go about lodging a grievance. There is a form attached to the grievance policy that can be completed. Ms Hickey said that if she didn't wish to use that form, it was quite in order for her to write a letter, a formal letter and that would be sufficient to start the grievance investigation process.

PN94

That grievance was formally lodged on 26 November and on 4 December Ms Hickey started an investigation in respect of that grievance and conducted various interviews with Ms Rogers co-workers at Mission Employment at Katoomba. In accordance with that, the Mission's policy, the person who carries out the investigation is required to prepare a summary of the investigation and prepare a recommendation and this was grievance was relating to the regional management, normally what would happen, Commissioner, that summary and recommendation would then go to the regional manager.

PN95

Because it related to a complaint in respect of the management practices of the regional management, it was sent to Ms Unis Goh who was the General Manager of Mission Australia in New South Wales. Ms Goh reviewed the grievance and she then gave a direction and the findings. She gave a direction to Mr Bagwanna to meet with Ms Rogers and Ms Hickey to endeavour to have that matter resolved.

PN96

Again, that is the policy that's adopted by Mission Australia in relation to those matters. If there's an allegation made against regional management or senior management, a person further up the line then makes a review in relation to that. There was a meeting between Mr Bagwanna, Ms Hickey and Ms Rogers on 18 December. That meeting was held as a formal meeting where minutes were kept. Ms Hickey was present for the purposes of taking the minutes and issues were able to be raised between Ms Rogers and Mr Bagwanna at that time.

PN97

It was the understanding of, and from the review of the minutes, that Mission believed that it had correctly and properly investigated the grievance. The matter had been reviewed by Ms Goh and the outcomes had been communicated by Mission to Ms Rogers. The outstanding issues in relation to the grievance was that there was ongoing support and there was to be given counselling and other matters that were provided to the staff at Mission Employment at Katoomba in order for them to maintain and to improve their ratings and to meet the targets that had been set and that ongoing support and counselling was provided to a significant number of staff members and to the management during that time.

PN98

As far as the other matters that were raised by Mr Piotrowski as far as the discussions between the parties, the documents that flow between the parties, Ms Rogers was provided with a copy of the minutes of the meeting of 18 December. Mission Australia's policy and as contained in its policy is not to provide to the complainant the records of interviews of the other people that are investigated, nor finding of the outcome. Merely those matters, the finding and outcome are communicated. There may be confidential matters or other matters that arise in those records of interview and that was not provided to Ms Rogers.

PN99

Ms Rogers went on annual leave on 21 December. She was on annual leave for a time until early January. She returned to work in early January of this year. Around a period in late December prior to her going on leave and in early January, Ms Rogers had raised the question with Ms Hickey as to whether it was appropriate for her to be transferred to a Mission office in Wagga in the community service area. Ms Rogers explained that she wished to go and live down there.

PN100

Ms Hickey said that she would see what she could do. She endeavoured to contact Ms Cheryl Cartwright who is the Regional Manager for the southern area of New South Wales and to contact the Mission community services manager in Wagga to ascertain whether any position was available. Both those people were not available in that period between 21 December and 9 January.

PN101

On 9 January, Ms Rogers rang Ms Hickey and asked her what was happening, whether she was going to be transferred. Ms Hickey advised Ms Rogers that as far as she was concerned she hadn't been able to get some feedback from the appropriate managers. During that time, there was quite a heated conversation between Ms Rogers, on Ms Rogers' part to Ms Hickey where she became quite distressed and distraught. Ms Hickey endeavoured to calm her down but Ms Rogers disconnected the phone.

PN102

Immediately after that, Ms Hickey contacted the manager of the Mission Employment office at Katoomba and asked him to provide whatever assistance he could to Ms Rogers. At that time, then Ms Rogers then went on sick leave on 9 December some time after the phone conversation and for all intents and purposes, Ms Rogers has been on workers compensation leave for a period until mid February, from 9 January until mid February and from mid February she has been on sick leave and she has not returned to the workplace in relation to that matter.

PN103

There have been a number of communications between Ms Kathy Brooks on behalf of the ASU to Mission Australia, particularly on 15 February relating to the outcome of the grievance procedure. There's also various emails and communications to Robyn Whytlock in relation to various matters. Mr Cribb has responded to the ASU on 18 February setting out Mission Australia's position in relation to the matter.

PN104

There was further communications on 22 February from Peter Cribb to Ms Brooks outlining what Mission Australia's position is in relation to the matter. Mission believe that it had effectively and in accordance with its policy investigated the grievance, given Ms Rogers an opportunity to meet with Mr Bagwanna and provided a finding in relation to the matter.

PN105

The ongoing nature in relation to the continued support and counselling for the Mission office in Katoomba was continuing and there were various communications as to the ASUs view as to the way in which the grievance policy had been interpreted. Mission takes the view that it complied at all times with its grievance policy and gave Ms Rogers the appropriate outcome.

PN106

In relation to the question of having an outside mediation, I'm instructed that at no time during any of the informal telephone discussions between Ms Rogers and Ms Hickey there was a request for a mediation, an outside mediator to be appointed, nor was there at the formal meeting on 18 December a request for an outside mediator to be appointed.

PN107

Effectively, since 9 January, Ms Rogers has been on sick leave. It would be inappropriate at this stage to have an outside mediator appointed as she was, it would appear to have been unable to attend work and considering the subsequent matters that have been raised by Mr Piotrowski in respect of her state, her medical state, it wouldn't be appropriate to have that outside mediation dealt with. In any event, it wasn't raised during the course of Ms Rogers attendance at the workplace.

PN108

Commissioner, moving on to the question relating to the medical appointments, there was an agreement that was reached here between the various parties on 11 August. Shortly after that time, Ms Hickey - - -

PN109

THE COMMISSIONER: 11 July, I think.

PN110

MR MORRISSEY: 11 July, I apologise, Commissioner. Shortly after that time, Ms Hickey and Mr Piotrowski agreed on an appointment to be made with Dr McClure. The appointment was to be made on 15 August. There were a number of communications, attempted communications between Ms Hickey and Mr Piotrowski after the appointment was made and 1 August. The meeting that Mr Piotrowski attended with Ms Hickey on 24 August when Mr Piotrowski wasn't able to discuss the matter although Ms Hickey as wanting to do so.

PN111

On 1 August, Mr Piotrowski rang the Mission office and advised that he was proceeding away on holidays. The appointment had been set for Dr McClure on 15 August. There's been no final agreement reached between Mission and the ASU in relation to the term of the letter. In order to preserve the appointment, Ms Hickey wrote to Dr McClure on 2 August. When the appointment was made with Dr McClure, apparently Ms Rogers as Mr Piotrowski indicated, Ms Rogers was not prepared to be examined because she believed that the letter of instruction was inappropriate.

PN112

Subsequently I took charge of this matter on 16 August. On 20 August I spoke to Mr Piotrowski and I put forward the name of a doctor. That doctor wasn't satisfactory to Mr Piotrowski. He identified three doctors that were on the WorkCover list and he faxed through to me those names. My understanding, my recollection with him is that I said I would endeavour to get the first available appointment, that I would make every effort not to make any contact with the doctor.

PN113

In fact, I would not contact the doctor, I would have my secretary contact the doctor merely to get the first available appointment. No communications would be sent to the doctor from my office until the terms of that communication had been agreed. The first available appointment was with Dr R. Haig on 5 September. I advised Mr Piotrowski shortly thereafter and forwarded him a draft letter to be sent to Dr Haig.

PN114

Subsequently, Mr Piotrowski advised me that his client believed it was inappropriate that my office had made the appointment. I stressed to him that at no time did the person from my office making the appointment have a knowledge of the matter. They merely sought the first available appointment and no, there'd be no communication between my office and the doctor other than to get the first available appointment.

PN115

I gave an opportunity for Mr Piotrowski to obtain instructions from his member and said that I would not cancel the appointment until 29 August. Subsequently, Mr Piotrowski advised me that his member would not be attending the appointment and he could not get instructions so - - -

PN116

THE COMMISSIONER: The appointment was scheduled for what date?

PN117

MR MORRISSEY: The appointment was scheduled for 5 September. I advised Mr Piotrowski that I would leave the appointment in place until 29 August. If I hadn't had a confirmation from him by that time, I'd have no alternative but to cancel that appointment and that appointment has been cancelled. There was no fee incurred in relation to that appointment, although the fee for Dr McClure's appointment was $880 which Mission Australia has paid. This is the third appointment that has been made which has been cancelled where Mission Australia has been required to make a payment to the doctor for cancellation of the appointment.

PN118

The issue in relation to the workers compensation matter, Commissioner, is that Mission Australia did not deny liability. This is a matter for Mission Australia's workers compensation insurers. they are the parties that deny liability. The communications between Mission Australia and its workers compensation insurers are matters that relate to litigation. There is no guarantee that any letters or doctors reports that are provided by Ms Rogers or that are obtained by Mission Australia's workers compensation insurers will in fact be made available to Mission Australia.

PN119

There is no guarantee that the reports if they are made available will address the issue as to whether Ms Rogers is fit to be able to return to the workplace. An insurer or an applicant in a workers compensation matter has an opportunity to instruct their appropriate doctor to obtain a report that relates to that workers compensation matter. The requirements of those workers compensation matters would be different for the requirements that Mission Australia has to ascertain whether Ms Rogers is fit to return to her duties.

PN120

THE COMMISSIONER: That appears to be one of the nubs of this matter.

PN121

MR MORRISSEY: That seems to be the nub of the second part of this.

PN122

THE COMMISSIONER: So you're saying that even if it was found not to be a compensatable illness or injury that it can still be subject to sick leave?

PN123

MR MORRISSEY: Well, the report may not address the issue as to whether Ms Rogers is fit to return to work and fit to return to work at Katoomba carrying out the work of a client service manager. It seems to me that for a medical practitioner to provide that report, he would need to have a copy of Ms Rogers' job description and some form of instruction to ask him to prepare a report along those lines.

PN124

The other issue that one has in this is that Ms Rogers is concerned about her privacy and Mission Australia is taking every effort to protect her privacy. One of the matters that was raised by me in my draft letter to Mr Piotrowski was that we wish to stress to the doctor that we didn't want to receive a history of Ms Rogers' medical conditions generally because they are not appropriate and they're not appropriate matters for us to know.

PN125

THE COMMISSIONER: Well, we agreed on that last time.

PN126

MR MORRISSEY: That's right. So it's seems that if a report was made available in the workers compensation matters, from my knowledge of these matters and it's some years ago since I've dealt with these matters, Commissioner, but those reports from medical practitioners tended to take a fairly detailed history and they have other medical matters that aren't really relevant and in those issues Ms Rogers may have an objection and rightly have an objection to having those released to us.

PN127

Her solicitors may have a rejection and the workers compensation insurers may feel it's inappropriate to have those matters released to us. So to delay the matter until the issue of the workers compensation aspect is determined seems to me to be inappropriate because it hands this court's jurisdiction over to another forum to be able to be determined. That forum has got a charter to consider other matters while this court has a charter to consider the matter that's really before it as to whether Mission has a right to have Ms Rogers examined under the terms of her contract.

PN128

THE COMMISSIONER: Well, this court has no desire to trespass or be trespassed upon so I agree with you on that. What now are you seeking from the Commission? I'm going to ask Mr Piotrowski exactly the same question in a moment.

PN129

MR MORRISSEY: We're seeking an agreement that an appointment be made for a doctor at the earliest possible time and that today the terms of the letter of instruction to that doctor be settled.

PN130

THE COMMISSIONER: Yes.

PN131

MR MORRISSEY: The doctors that were nominated by Mr Piotrowski come from the WorkCover web site. There are three of those doctors. It seems to me not unrealistic for Mr Piotrowski to contact those doctors to ascertain what their availability is and get the first available appointment and then settle the terms of the letter of instruction. The letter of instruction has been with Mr Piotrowski for some time and I'm not proposing to require any other matters other than those.

PN132

THE COMMISSIONER: Thank you. Mr Piotrowski, the same question to you. What do you want from me?

PN133

MR PIOTROWSKI: That it be recognised that the issue of Ms Rogers condition is being dealt with by the Workers Compensation Commission, recognition that out of that process Ms Rogers' solicitors will be formally requesting an independent medical assessment and that that should suffice in terms of the concerns that the employer has.

PN134

THE COMMISSIONER: I take Mr Morrissey's point that there can be a distinction between what the Workers Compensation Commission would require to declare a compensatable injury or illness necessarily arising from her work and another type of illness or injury which doesn't arise from work but would still justify sick leave. So one wonders whether your member or client is doing themselves a disservice in wishing to have everything hinge on what the Workers Compensation Commission decides.

PN135

MR PIOTROWSKI: That's where the process started with her workers compensation claim being - - -

PN136

THE COMMISSIONER: It's also not my jurisdiction.

PN137

MR PIOTROWSKI: I appreciate that completely, Commissioner. In terms of the jurisdiction that I understand this Commission has relating to this Community Employment and Training Support Services Award, we believe that has been met by the provision of a medical certificate from a duly qualified medical practitioner. We have agreed - - -

PN138

THE COMMISSIONER: Yes, but we've moved on from that, haven't we?

PN139

MR PIOTROWSKI: Well, we had but other events have unfolded in terms of an assessment in relation to her condition being organised through the process under way with the Workers Compensation Commission. We'll address that broader one. There wasn't any clear path ahead on that. We understood and we accepted a way ahead of going to a psychiatric assessment. Other events have unfolded and it is a great disappointment to all parties that we weren't able to make the appointment. As I said before, Ms Rogers came to Sydney for it and that was -

PN140

THE COMMISSIONER: So she came to Sydney for it without knowing what the form of words was or did she know the form of words?

PN141

MR PIOTROWSKI: Based on, I suppose, what I'd said to her. I said I have faith that the form of words will be okay, we just need to see them. In the end they weren't. One of the issues that really weighs heavily on our position is Ms Rogers' condition. The last time when there was a breach of the agreement and the process, Ms Rogers was particularly upset. She does not want to go through arduous medical examinations.

PN142

There will be a medical examination as part of the workers compensation appeal by a psychiatrist out of that process is my clear understanding.

PN143

THE COMMISSIONER: Well, let me try and win my way through all those words. What I think you're telling me, you can confirm or deny it, is that she's going to refuse to undertake the type of medical examination we agreed upon on 11 July. Is that true or not?

PN144

MR PIOTROWSKI: Through the change in circumstances, yes. Further than that, she has instructed me that she has got concerns regarding several breaches of her privacy that have already taken place out of this whole process, one of them being a report provided by a psychologist that related to her workers compensation claim which I understand was provided to a Dr Gordon Davies that Mission Australia had made an appointment with earlier on.

PN145

THE COMMISSIONER: This is one of the three appointments?

PN146

MR PIOTROWSKI: Yes.

PN147

THE COMMISSIONER: So has she been referred - just to refresh my memory - to a psychologist or a psychiatrist?

PN148

MR PIOTROWSKI: A psychiatrist.

PN149

THE COMMISSIONER: That's what I thought, too.

PN150

MR PIOTROWSKI: But as part of the workers compensation investigation, there was a report done by a psychologist by the name of Allan who did a report. It's my understanding that when an earlier appointment was made with a Dr Gordon Davies in relation to her sick leave, that that workers compensation related psychologist report was sent to Dr Gordon Davies. That report contains personal family history of which Ms Rogers is of the believe - - -

PN151

THE COMMISSIONER: I think we're all generally aware of the parts of Ms Rogers' life that she doesn't want explored and I don't want to explore it either.

PN152

MR PIOTROWSKI: Well, in terms of what we're looking for, this is the instruction that I've received, that the report sent to Dr Gordon Davies and the letter that was sent from Ms Trish Hickey to Dr McClure, we would seek evidence that those referrals have been withdrawn and destroyed and that the medical report - - -

PN153

THE COMMISSIONER: I doubt I have power to order that. Sorry to interrupt you but I'm going to. As I understand it, your member has been on sick leave since February of this year and she continues to be on paid sick leave from Mission Australia. She lodged a workers compensation claim which has been declined. Correct?

PN154

MR PIOTROWSKI: And is under appeal.

PN155

THE COMMISSIONER: Yes, that's under the appeal. In the interim, Mission Australia has continued to pay sick leave. Now, if the appeal was declined as well or refused or whatever, struck down, what would you say was the status of the sick leave payments that have been made? Do they then cease or are they are separate issue in your mind for those purposes? You've got to be very careful.

PN156

MR PIOTROWSKI: I think they're separate to the distinction that you can make. The workers compensation process will make a judgment as to whether her sickness is a result of an injury occurred that work.

PN157

THE COMMISSIONER: Is compensatable.

PN158

MR PIOTROWSKI: In terms of whether we want to establish whether she's sick or not we have, and she has provided a medical certificate from a duly qualified medical practitioner as is required under the award.

PN159

THE COMMISSIONER: A general practitioner?

PN160

MR PIOTROWSKI: That's right, Commissioner.

PN161

THE COMMISSIONER: That still doesn't answer my question. If the appeal and the workers compensation matter was rejected, would you then say that she wasn't sick?

PN162

MR PIOTROWSKI: No.

PN163

THE COMMISSIONER: So you would still say she was entitled to sick leave?

PN164

MR PIOTROWSKI: Because she's in receipt of a certificate from a doctor.

PN165

THE COMMISSIONER: You say that the employer has no right to further test her current state?

PN166

MR PIOTROWSKI: No. Mr Morrissey, you can respond if you want or we can go into a conference and bat this around for a while.

PN167

MR MORRISSEY: Commissioner, it might be worthwhile responding to a couple of those issues. I'll deal with the sick leave matter first of all. Ms Rogers has been away from the workplace since 9 January. It's quite a long time. The concern is that she was based in Katoomba. She had a family connection at The Rock which is near Wagga. She had in late 1991 and early 1992 been asking Ms Hickey if she could get a transfer to Wagga.

PN168

Ms Hickey said she would do what she could do but that didn't happen the time she went on sick leave. In the ordinary course, Mission Australia when it gets a workers compensation claim does have a right to have the person medically examined. The psychologist's report was made available. The psychologist's report was relied on by Mission Australia. That report in the ordinary course in order to ascertain whether Ms Rogers was fit for work was sent to a doctor as you would normally do, send those various reports to doctors.

PN169

It's traditional that if you're obtaining a medico legal opinion from a medico legal expert, you would send what other reports were available for that medical legal expert to review them. That matter hadn't been raised as an issue. There's was no intention on Mission Australia's part to breach Ms Rogers' privacy. In any event, that matter was kept secure between Mission and the medical practitioner. It seems to me inappropriate that the medical practitioner would do anything in relation to breaching Ms Rogers' privacy.

PN170

The concern that Mission Australia has is that if Ms Rogers is so ill and she is suffering from a stress related injury, she's been receiving treatment from a general practitioner in Wagga. There doesn't seem to be any steps taken by Ms Rogers to get herself rehabilitated. It's normally, one would assume, that if you were so ill that you're not able to attend work and have been unable to attend work for now something in the vicinity of nine months, that you'd at least go and see a psychiatrist or have another doctor treat you but the continued treatment by a GP in Wagga is of concern and Mission Australia needs to know whether Ms Rogers is really fit to be able to return to work.

PN171

THE COMMISSIONER: We don't actually know yet whether this doctor in Wagga is actually providing any treatment.

PN172

MR MORRISSEY: We need to know whether there's been treatment being provided.

PN173

THE COMMISSIONER: The workers compensation matter, I have gone through those issues in relation to the workers compensation aspect and I don't need to go any - - -

PN174

THE COMMISSIONER: I think we've beaten workers compensation to death so we won't worry any further about that. How long has Ms Rogers been employed by Mission Australia, roughly?

PN175

MR MORRISSEY: 13 years.

PN176

THE COMMISSIONER: How much sick leave does she have left?

PN177

MR MORRISSEY: 90 days.

PN178

THE COMMISSIONER: Left or in total?

PN179

MR MORRISSEY: Left. When she was employed - Mission Australia is an organisation that has been around for many, many years and over a period of time it has acquired services and has taken on other roles and Ms Rogers apparently was working in community services and under the terms of her contract with one of those services apparently she had an arrangement where she had 40 days a year sick leave.

PN180

THE COMMISSIONER: We've gone as far as we can on transcript. I intend to adjourn into conference.

OFF THE RECORD [11.32am]

RESUMES [1.21pm]

PN181

THE COMMISSIONER: This matter is now resumed. During the break I've had the opportunity to speak to the parties individually and collectively and the parties have also conferred in my absence and we'll now go back to the record for a statement from each party. Mr Piotrowski?

PN182

MR PIOTROWSKI: Thank you, Commissioner. We have sought from the employer a letter as outlined in our earlier statement regarding the grievance process being flawed and we have pointed out to the employer that the provision of that letter in the terms earlier stated will go some way to assisting her recovery.

PN183

In relation to the medical examination, it is our position that after the Workers Compensation Commission appeal hearing for conciliation on 16 September, that if it is required from that forum that Ms Rogers be assessed by an independent medical practitioner, that we're quite happy for that assessment to cover both her workers compensation issue and her sick leave issue and that one doctor could conduct that or if the employer prefers to have two doctors, our position that we would seek that those appointments be made to coincide with one trip to Sydney.

PN184

If out of that meeting on 16 September it's found that the workers compensation process does not require a medical examination to be conducted, that she will agree to attend a medical examination to assess her condition in relation to her sick leave. We've also requested from the employer that documents provided to doctors in relation to her sick leave that related to her workers compensation claim be retrieved and the document of Dr Allan's report that's contained in the file, whether it be the workers compensation file or her personnel record, be sealed. Thank you, Commissioner.

PN185

THE COMMISSIONER: Mr Morrissey?

PN186

MR MORRISSEY: Commissioner, in relation to the matters, I have instructions from Mission Australia to through my firm write to the doctors who had received Dr Owens report and ask them to return them to my office and I'll maintain those on the file. Mission Australia takes every effort to ensure the security of the material, particularly Dr Owens report and that contained on a workers compensation file which is kept with the workers compensation co-ordinator. It's not generally available in respect of the personnel file which is available to a number of people and every effort will be taken to protect the confidentiality and privacy of that document.

PN187

In relation to the proposal about this medical assessment, Mission Australia is anxious to be able to have an assessment carried out as promptly as possible. During the period in which we were off the record, there were some discussions relating to the format of a letter to be sent and the principal that's been agreed, Mission proposes through my office to contact the three doctors that were on the WorkCover website list and Mr Piotrowski made available to me some time ago.

PN188

It's intended that those doctors be contacted although Dr Haig who was the doctor who was originally contacted will be contacted last but the first available appointment will be taken. Mission will then write to Mr Piotrowski and to Ms Rogers requesting an undertaking that Ms Rogers confirm that she'll attend the appointment. If no undertaking is obtained or if the undertaking is given and the appointment isn't kept, Mission Australia reserves its rights in relation to taking further action.

PN189

In relation to the grievance, there are a number of significant issues relating to the way in which the grievance is conducted. In principle, Mission takes a view that it has complied with its obligations under the policy but instructions will be taken and communicated to the ASU by Wednesday of this week as to whether that letter can be offered.

PN190

In relation to the letter of apology in relation to the star rating, instructions will be taken but it seems to me, from the two that are available to me, that it is unlikely that that apology containing as requested by the ASU will be provided in that regard.

PN191

The Mission notes that there has been a report prepared by Ms Rogers' treating doctor to Dr McClure that suggests that if the grievance had been resolved then her condition may be resolved. This is an important reason why the Mission believe it is appropriate to have an appointment with an independent medical practitioner to ascertain whether Ms Rogers is capable of returning to work and on what basis.

PN192

In relation to the proposal put forward relating to the delay until the workers compensation appeal hearing on 16 September, the Mission is concerned that that hearing may not result in a medical appointment being made and there will be further delays in this matter thereby hindering the Mission and Ms Rogers in ascertaining whether she is capable of returning to work.

PN193

THE COMMISSIONER: Thank you. I may indicate at this stage, after two sets of hearings of this matter and extensive conferences with the parties, that I believe it is not unreasonable for the employer to seek independent psychiatric advice as to Ms Rogers' fitness for work and I note for the record that I have had a role in drafting a draft letter which would accompany a request to such a doctor for a diagnosis and prognosis for Ms Rogers.

PN194

I understand that Mr Piotrowski, on behalf of his member, opposes the idea of a medical examination at this stage independent of the workers compensation proceedings but I do note that he has agreed that the terms o the letter, if such a letter was to be sent, are not prejudicial to Ms Rogers' interests. Through Mr Piotrowski I would recommend strongly to Ms Rogers that she comply with the request to have an independent psychiatric assessment made in the immediate near future.

PN195

These proceedings are adjourned and leave is reserved to either party to seek an urgent relisting.

ADJOURNED INDEFINITELY [1.29pm]