C2002/4957, Transcript of Proceedings [2002] AIRCTrans 4338 (6 November 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT10009
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2002/4957

HEALTH SERVICES UNION
OF AUSTRALIA

and

MELBOURNE PATHOLOGY
INCORPORATING HITECH

Notification pursuant to section 99 of the Act
of a dispute re alleged disproportionate disciplinary
action

MELBOURNE

10.35 AM, THURSDAY, 17 OCTOBER 2002

PN1

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

PN2

MS J. FRAUMANO: I seek leave to appear for Melbourne Pathology, together with MR N. MOLLER from Melbourne Pathology.

PN3

THE COMMISSIONER: Thank you. The Commission apologises for the late start. Mr Heuston, do you have any objections to Ms Fraumano seeking leave?

PN4

MR HEUSTON: I have no objection, Commissioner.

PN5

THE COMMISSIONER: Thank you. Leave is granted, Ms Fraumano. Mr Heuston?

PN6

MR HEUSTON: Thank you, Commissioner. This dispute is regarding the issuing of a first written warning to Ms Trish Shaw, who is currently a team leader and pathology collector at Melbourne Pathology, and has been so for a period of around five years. The incident and the issuing of a formal warning was regarding a change in roster which had occurred, and a swapping of two shifts on 5 September. Another pathology collector, Ms Linda Gillespie, and Patricia Shaw changed their normal shift patterns, and failed to notify the supervisor who was in charge of that area.

PN7

An investigation was conducted, and Melbourne Pathology issued a formal written warning to Ms Trish Shaw. We are not aware of what other actions may have been taken by Melbourne Pathology regarding disciplinary against any other staff member. That has been kept confidential. There are concerns that the issuing of the formal written warning to Ms Trish Shaw may be inconsistent with the disciplinary action which was taken against other staff members who have failed to follow the same policy and procedure which was failed to be followed by Ms Trish Shaw.

PN8

There were allegations from Melbourne Pathology that this changing in rostering from that day caused a significant reduction in service levels for that period, and that the policy and procedures were not followed. I have been advised, Commissioner, that the impact on service provision to Melbourne Pathology through that roster change was nil, and the rostering pattern which did occur that day was not an unusual rostering pattern, and had that been formally requested by Ms Shaw, there was no reasonable expectation that that would be a request that would be rejected.

PN9

The staffing levels which were applied that day were not different from staffing levels which had been applied on previous occasions, including the 30th of the 9th of this year, when one staff member was left to perform functions of that entire work group. As I said, Commissioner, it was not an unusual circumstance. Certainly the supervisor of that area should have been informed, and that roster change been requested by the supervisor. We submit, Commissioner, that that is not a serious and a wilful act on our member's part.

PN10

Certainly it was an issue which did require some action on Melbourne Pathology's part, but we submit that the issuing of a first written warning for failing to notify the supervisor is overly harsh in this instance. If the Commission pleases, I will just run through the sequence of events of the investigation which took place. On 11 September a letter was sent to Ms Shaw, and I will just submit a copy of the documents which were exchanged between HSUA, Ms Shaw and Melbourne Pathology during this dispute.

PN11

The first letter was dated 11 September, and was regarding a request for a meeting to discuss the change in service provision at the collection centre in Bundoora, which they state:

PN12

Severely impacted on the service provision to our clients, and also the time sheets for the day in question indicated your working hours to be quite different from those actually worked. Time sheets are subject to audit for a number of reasons, and required to be accurate.

PN13

And this was considered in the letter to be a serious breach of conduct. As I have already mentioned, Commissioner, there was no impact on the service provision, and regarding the time sheets which were raised by Melbourne Pathology, the time sheets which were brought up in that letter are not normally the responsibility of Ms Shaw. Normally the time sheets which were referred to are completed by another member of staff following notification from other staff members which may have made any change.

PN14

The following day Ms Shaw sent a letter back to Melbourne Pathology, requesting a change of meeting time, to ensure that she could have a representative available with her, and also wanting some further clarification of what would be on the agenda of that meeting. A meeting was then held on the 18th to discuss the issues, where those were run through from both sides, and a response was given by Ms Shaw. There is no dispute that the correct process regarding the informing of the supervisor was not followed. There is, however, some dispute about what is deemed serious and wilful.

PN15

I wold also like to submit, Commissioner, a copy of the Melbourne Pathology Managing Unsatisfactory Performance and Disciplinary Policy. The policy contains set procedures of how to deal with performance issues, and we submit, Commissioner, based on the policy of Melbourne Pathology, they failed to follow what would appear to be a reasonable interpretation of this policy. Throughout the policy the theme tends to be that through, certainly in point 2.3, discussion counselling is considered the first and preferred method of managing unsatisfactory performance.

PN16

Throughout the grievance, Commissioner, Ms Shaw has been made aware of the problems and is aware of what concerns Melbourne Pathology has about the process that was followed, and has given a commitment that that would not occur in the future. We believe that following that commitment that Melbourne Pathology has no real reason to believe that this is likely to be an ongoing performance issue, however, they have chosen to take the matter further and consider it a serious breach of policy, and jump straight forward through past a counselling process, past the issuing of a verbal warning straight to point 3.2.6, that policy which states that following the review period, which is part of the policy, it is suggested that in the first instance where a performance issue is identified, that a review period be set up and staff members be given support in ensuring that those performance issues were rectified. They have jumped straight through to point 3.2.6, and issued the formal warning, which states:

PN17

Following the review period -

PN18

Which did not occur:

PN19

Should an employee's performance still not meet the required standard, a further interview to be arranged.

PN20

In accordance with their normal processes, and that would follow their usual process. Commissioner, we believe that in terms of the policy of Melbourne Pathology, the appropriate outcome should not be a first written warning. There are other avenues which were in line with the policy of Melbourne Pathology which have not been followed regarding this incident. We don't believe it is a serious offence, and doesn't warrant the issue of a first written warning.

PN21

We also believe there are some inconsistencies and errors in what Melbourne Pathology have been alleging in their correspondence, in saying that there was a compromise in service provision, and the provision of service in Melbourne Pathology was not affected by the change in rostering, and certainly the time sheets which were referred to were not the responsibility of the member concerned. We would also be interested to hear from Melbourne Pathology what action has been taken against the other member of staff, if any, regarding what is the same breach in policy and protocol regarding a change in rostering.

PN22

So what we are seeking from the Commission today is a recommendation that Melbourne Pathology's issuing of a first written warning be removed, and that other steps be put in place to ensure that the matter was dealt with more fairly and equitably, and in line with the policies of Melbourne Pathology. Thank you, Commissioner.

PN23

THE COMMISSIONER: Mr Heuston, had Ms Shaw been counselled or warned before over similar instances?

PN24

MR HEUSTON: There has never been any disciplinary action or counselling sessions given to Ms Shaw regarding any work performance issues for her entire time at Melbourne Pathology, which is over five years.

PN25

THE COMMISSIONER: Right. How long has she been there?

PN26

MR HEUSTON: Five years.

PN27

THE COMMISSIONER: Are you are of a policy that has been publicised that says that if you wish to change shifts this is what you have got to do?

PN28

MR HEUSTON: There is a policy that does exist, there is not a copy that is available at the Bundoora site. The policies which are in place are not readily available to staff and have not been brought to the attention of staff regarding how to do that. However, there is an understanding between staff that the correct process to follow is to contact your supervisor.

PN29

THE COMMISSIONER: Right. And why wasn't that done on this instance?

PN30

MR HEUSTON: In this instance, I think this is not an unusual change in rosters, it is something that occurred before, and there was a belief that this wasn't a big deal and wouldn't be a problem, and therefore certainly didn't expect to end up with a first written warning, didn't see it as an issue which would be regarded with such magnitude further on down the track.

PN31

THE COMMISSIONER: Okay, thanks. Yes, Ms Fraumano?

PN32

MS FRAUMANO: Thank you, Commissioner. I think we are probably coming from different ends of the spectrum.

PN33

THE COMMISSIONER: Why do I find that unusual?

PN34

MS FRAUMANO: Yes. I don't think you would, Commissioner. Ms Shaw has been in the position of team leader in the Bundoora Collection Centre. Ms Shaw stated in an interview that she was well aware of all the policies and respective change of shift and the protocols in respect to the change of shift. On the day in concern, which was the 5th of the 9th, Ms Shaw was commencing annual leave on the following day. We understand that the reason behind the change was that Ms Shaw wanted to leave early for annual leave.

PN35

She requested a collector, a more junior position at the centre, to change the shifts. The other employee concerned believed that as Ms Shaw was the team leader, that the proper protocols had been followed. The impact of the change of shift, Commissioner, was that the balance of staffing across the day was changed remarkably, so during the busier period of the centre's operation during the morning there was now only one employee available, whereas prior to the change of shift there would have been two employees available.

PN36

The centre can be called on to do additional staffing rounds, and traditionally that is the time when the centre is busier with work. To say that the centre wasn't compromised would only have to be a matter of luck, because it is very difficult to predict the work load that will rise in a pathology business. Clients often walk in directly off the street, hospitals can call for additional rounds, GPs can make contact for additional services. The components of this, as Melbourne Pathology sees it is, that it is certainly true to say that on one or two occasions there has only been one person on. But that has been in full knowledge of the supervisor that should have been contacted, and the supervisor then makes alternative back up arrangements.

PN37

That wasn't possible on this occasion because the supervisor had no knowledge because the protocol had not been followed. The secondary part of it; the time sheets in Melbourne Pathology are actually issued earlier in the week. The process, if there is a change following that, is because the supervisor approves all changes, then the supervisor amends the time sheet to reflect the change. Because of the failing of the following of the protocol the supervisor did not have the information to amend the time sheets, so the time sheet, unless it had been picked up in the audits, would have remained unchanged.

PN38

Melbourne Pathology only became aware of this position because they, in fact, tried to deploy somebody to utilise additional hours, and then they found there was only the one person there. So the potential damage on Melbourne Pathology's business was that the management and the organisation and the supervisors believed there were two people at that site; there, in fact, was only one during those earlier hours.

PN39

I will refer to the disciplinary, or it is actually the Managing Unsatisfactory Performance and Disciplinary action that was referred to, and would refer you to page 5 of 7. And the process there that is led in is that it actually says in 3.3.2:

PN40

Where an employee has been involved in an alleged incident which is not deemed serious.

PN41

In this case it was deemed to be a serious incident because of the potential threat to the service provisions of Melbourne Pathology. I think the documentation has been tabled in respect to the correspondence leading up to the meeting that I believe was on 19.9.2002. At that meeting Ms Shaw was represented by Justin O'Malley from the HSUA. The notes from that meeting clearly indicate that Ms Shaw was asked what protocol was in place in regard to changes of roster, and she clearly answered that the supervisor is informed. She was asked if she followed that protocol on the day, and agreed she didn't.

PN42

She was also asked in respect to the protocol of the time sheets, as to the amendment of the time sheet if there is circumstances about changing it. She indicated that the supervisor is informed, and it is amended. She was asked if she did that on that day, and she stated that she didn't. So from the investigation and the meeting that was carried out on the 19th, it was clear that Ms Shaw, as a team leader, clearly understood the processes that were to be followed.

PN43

There were also discussions about the serious compromise to the service. Ms Shaw didn't accept that it did leave it, Melbourne Pathology, leave it in a poor position. Melbourne Pathology's view of that is, if there are changes made, and the supervisors and the management are well aware of those changes, then they are well positioned to cover anything that comes up. If they know there is only one person in the morning on that branch, they make an alternative arrangement from another branch.

PN44

Considering the information that had been gathered, which included the time sheets, the information from the interview at which Mr Justin O'Malley represented Ms Shaw, and the provision of information from the other employee concerned, Melbourne Pathology issued a warning. I believe that warning has been tabled; it was tabled in Mr Heuston's documents. That warning clearly indicates that if there is no further actions it will be removed from her file in 12 months, however, if there are further actions then it will be followed up with further investigation and potential disciplinary matters.

PN45

Melbourne Pathology sees the two incidents with the two employees as quite separate, in that one employee is in a position of responsibility, a team leader. The team leader has clearly indicated that she was fully aware of all the protocols and all the procedures, and did not follow them on that day. She also asked the other employee to change the shift, who believed that all the protocols and procedures were being followed because she was being requested by her senior person, if you like, in the branch. If the Commission pleases.

PN46

THE COMMISSIONER: Mr Heuston says that there is a policy, and you say that Ms Shaw was well aware of the policy, understood the details of the policy and was able to quote back to you the required procedures. Has there been any difficulty with Ms Shaw before?

PN47

MS FRAUMANO: Not to my knowledge, Commissioner. But if I could just refer to Ms Wood, who is the work group supervisor. No, Commissioner.

PN48

THE COMMISSIONER: And there is not any allegation of potential or possible fraud, is there, in terms of the time sheets?

PN49

MS FRAUMANO: I wouldn't like to draw any conclusions, whether the time sheets were deliberately or not deliberately changed. I think the fact that Ms Shaw knew what the potential was for the time sheet being changed, knew what the process was, ie, the supervisor changed it once that she had notified the supervisor, and the supervisor hadn't been notified, well, then potentially the time sheet was going to go through unchanged.

PN50

THE COMMISSIONER: So if it hadn't have been detected was there a possibility that Ms Shaw would have been paid more than what she was entitled to be paid?

PN51

MS FRAUMANO: It was a change of hours, the hours worked were the same, so it was a 7.5 - - -

PN52

THE COMMISSIONER: The hours worked were the same. So where would the possibility, if any, of potential fraud come in? There is no financial benefit to Ms Shaw, is there?

PN53

MS FRAUMANO: Unless, Mr Moller is just saying, unless it was deemed to be overtime. And I actually understand that Ms Shaw did stay on later in the day. So, in fact, there was a need to move staff on that day. The team leader is responsible for the coordination of the staff, and in general is the person that makes sure that the rosters are covered appropriately. If there is any change from the fixed roster it goes to the supervisor.

PN54

THE COMMISSIONER: The employment record of Ms Shaw, I mean, she is a team leader, and I note, I think, in the correspondent from Lynette Willey, it does say that:

PN55

I am disappointed that a staff member previously regarded as being worthy of the role of a team leader has failed to follow appropriate protocols.

PN56

Now, I understand that. The employment record of Ms Shaw, I mean, is that a good employment record?

PN57

MS FRAUMANO: There haven't been any incidents that I am certainly aware of, nothing that would be recorded on a file over the period, Commissioner.

PN58

THE COMMISSIONER: Right.

PN59

MS FRAUMANO: However, the team leaders do have a responsibility that is higher than the normal collector in ensuring that protocols and procedures are followed.

PN60

THE COMMISSIONER: No, I understand that. I am just - I mean, I am just wondering whether in the overall concepts - I understand what you say, that there was the potential for something to occur, because you only had one person on rather than two. And that doesn't say that because nothing occurred that Ms Shaw should be exempted, because if she knew that the policy had been followed, then in all honesty, I mean, it is just stupidity on her part.

PN61

But in the overall context of things, I mean, would not counselling be an appropriate - and if she doesn't learn by that, I mean, you are entitled to make one mistake; if you make two you are a dill.

PN62

MS FRAUMANO: Two, you are out. Commissioner, I believe Melbourne Pathology took the view that because of that potential risk to their service and, I mean, the Commission would be aware it is a highly competitive market, and any failure in the service, ie, if the service can't be delivered to a hospital or to clients, etcetera, potentially gives the competitors advantage.

PN63

THE COMMISSIONER: I understand that.

PN64

MS FRAUMANO: And the branch is in a hospital.

PN65

THE COMMISSIONER: There is a lot of potentials in life, but in the overall context of things, I mean, wouldn't even, say, counselling, or maybe even a reprimand, although it is not provided for, but that can be part of some counselling process.

PN66

MS FRAUMANO: I believe Melbourne Pathology took the view it was more serious than that, Commissioner.

PN67

THE COMMISSIONER: Thanks. Mr Heuston.

PN68

MR HEUSTON: Thank you, Commissioner. I would just like to respond to a few things that Ms Fraumano said. The issue of fraud was brought up. If the time-sheets - - -

PN69

THE COMMISSIONER: That was a question from the Commission, actually, whether there was the potential.

PN70

MR HEUSTON: Yes. Regarding the change in remuneration that would have occurred if the time-sheets had gone through unchecked, if they had gone through unchecked and hadn't shown the change in rostering, I have been informed that Ms Shaw would actually have been financially disadvantaged. So the allegations - I mean, she would have been - the hours she actually worked I believe that - if they hadn't been picked up, she would have been paid less than she did.

PN71

THE COMMISSIONER: Less than what she was entitled to.

PN72

MR HEUSTON: Thank you, sir. Yes, which I think is what occurred. Regarding the service provision, I mean I also don't think there has ever been any issues of fraud or Ms Shaw attempting to defraud the organisation for the moneys. Ms Shaw I believe has always been regarded as an excellent employee by Melbourne Pathology; in fact, she was promoted to the position of team leader for that very reason, that she does perform well and was given that added responsibility.

PN73

I would also state though that the policies and procedures for a change in roster don't just apply to team leaders, they do apply to all staff and regardless of whether or not a supervisor I expect would have a - would be expected to have a better working knowledge of what sort of protocol should be in place, there is a responsibility of all the staff. So to suggest that the sole responsibility of all the staff lies with one person - - -

PN74

THE COMMISSIONER: But there is a - I mean, in all fairness there is a higher degree of expectation from somebody in a supervisory position to at least ensure that if there are policies in place and they are aware of them, I mean there is a higher responsibility on them to make sure that they actually follow them. It doesn't condone somebody who is in a - not in a supervisory position but not following it, but if an arrangement is made in this instance between a team leader and somebody who is not a team leader, and that arrangement does not comply with what is understood to be very clearly the policy, there is a certain degree of onus on the team leader to make sure that there is compliance.

PN75

MR HEUSTON: Certainly. Commissioner, we believe Ms Shaw is a good employee. I don't think Melbourne Pathology dispute that. There was a lapse in judgment regarding the following of a process. We don't think it was - should be deemed as a serious breach in policy. It was a breach nonetheless, but considering Ms Shaw's track record which spotless up until a couple of weeks ago, we believe that the issuing of a first written warning is heavy-handed. I don't think Melbourne Pathology expect that similar incidents - they haven't occurred in the past, that I don't believe they or the member concerned expect that it will be a problem in the future and that the best way to resolve this would be through, as the Commission suggested, perhaps a counselling session might be more appropriate. Thank you.

PN76

THE COMMISSIONER: Can I go off transcript for a moment.

OFF THE RECORD

PN77

THE COMMISSIONER: The Commission has had an opportunity to have a conference with the representatives of the parties involved. As the Commission understands it, the first written warning is to be withdrawn. Ms Shaw is to undergo counselling. There is to be an acknowledgment by Ms Shaw; and the Commission does say that there was an error of judgment on the part of Ms Shaw, given her position as a team leader and understanding the policies. And the Commission would ask that Ms Shaw acknowledge now that there was an error of judgment. Ms Shaw.

PN78

MS SHAW: Yes.

PN79

THE COMMISSIONER: Do you acknowledge that there was an error of judgment on your part?

PN80

MS SHAW: Yes, sir.

PN81

THE COMMISSIONER: Okay, thank you. You understand that in the first there will be a verbal warning provided to Ms Shaw which will go on the file as a verbal warning. That if any similar incident occurs again with Ms Shaw, it will be treated as serious misconduct and will warrant the processes involved in the disciplinary procedures for the alleged misconduct. And hopefully that puts an end to the matter, and I thank the parties for their co-operation. The Commission stands adjourned.

ADJOURNED INDEFINITELY [11.27am]