C2003/1752, Transcript of Proceedings [2003] AIRCTrans 1628 (30 April 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

C2003/1752

THE AUSTRALIAN WORKERS' UNION

and

ELECTROLUX HOME PRODUCTS PTY LIMITED

Application under section 170LW of the Act
for settlement of dispute re alleged
victimisation and discrimination of an
injured worker and failure of the company
to abide by the dispute settlement
procedure C16

ADELAIDE

2.01 PM, WEDNESDAY, 16 APRIL 2003

PN1

THE COMMISSIONER: I will take appearances, thanks.

PN2

MR J. BRAITHWAITE: If it please the Commission, I appear on behalf of the Australian Workers' Union and appearing with me is Mr MARPLE, the site delegate and Mr DELAINE who is the individual that this matter is about, sir.

PN3

THE COMMISSIONER: Thanks, Mr Braithwaite.

PN4

MR S. BAKEWELL: If the Commission pleases, I seek leave to appear as agent on behalf of Electrolux Home Products, appearing with me today is Mr J. GETGOOD.

PN5

THE COMMISSIONER: Yes. There is no objection, Mr Braithwaite?

PN6

MR BRAITHWAITE: I always object, Commissioner, but I will take on board the position that I want to move this matter forward.

PN7

THE COMMISSIONER: All right, Mr Braithwaite over to you?

PN8

MR BRAITHWAITE: Thank you, sir. Commissioner, this matter as indicated in the notification relates to victimisation and discrimination against a worker, Mr Delaine. He has a work-related injury accepted by the company. The injury first occurred in 1999 and was further exacerbated in 2001 and has been on modified duties since then. If I firstly deal with the issue of jurisdiction, Commissioner, if I could just hand up a copy of the agreement?

PN9

THE COMMISSIONER: Thanks. Yes.

PN10

MR BRAITHWAITE: This is Electrolux Home Products Dishwashing Plant Enterprise Agreement 2001. Sir, clause 16, the disputes procedure, at subclause 16(3):

PN11

In addition to paragraph 3.2.1(c) of the award if conciliation fails to resolve the dispute the Commission is empowered under section 111AA and section 170LW of the Workplace Relations Act as it stands at July 2001 where the relevant union agrees to arbitrate over the matter provided that the arbitration is limited to the interpretation, application or process of implementation of the terms of this agreement.

PN12

We would say that that clause gives the Commission jurisdiction. I just highlight that the High Court in the CFMEU v The Australian Industrial Commission considered the matter and believed the Commission had the judicial power to deal and settle the dispute. I can run through that if the Commission pleases, if there is any question of the jurisdiction by the employer.

PN13

THE COMMISSIONER: Will there be a question of jurisdiction, Mr Bakewell?

PN14

MR BAKEWELL: There will be an issue that the company wishes to raise, Commissioner, and I am happy to either deal with that now or deal with it subsequently after Mr Braithwaite has finished his submissions.

PN15

THE COMMISSIONER: I think perhaps Mr Braithwaite let us hear what you have got to say first to put a bit of context to it.

PN16

MR BRAITHWAITE: Okay, Commissioner, I will go to the matter at hand then.

PN17

THE COMMISSIONER: Yes.

PN18

MR BRAITHWAITE: The agreement, sir, at clause 3, anti discrimination, clause 3 reads, Commissioner:

PN19

It is the intention of the parties to this agreement to achieve the principal objective in section 3 -

PN20

is it supposed to be and not section 30 -

PN21

of the Workplace Relations Act 1996. The act through respect and the value, and valuing the diversity of the workforce and as a result the parties agree not to discriminate against an employee in his or her employment or to terminate the employee's employment for reasons that include the employee's race, colour, sex, sexual preference, age, physical and mental disability.

PN22

We would say that this falls within the definition of the anti discrimination. What I would seek to hand up, sir, is a couple of documents putting the issue of disability on the table. The definition - - -

PN23

THE COMMISSIONER: What are we looking at here?

PN24

MR BRAITHWAITE: Sorry, sir, it is an extract from the Collins English Dictionary, the second to last item on the left-hand side:

PN25

Disability. The condition of being unable to perform a task or function because of a physical or mental impairment.

PN26

I will also hand up, sir, extracts from the Workers Rehabilitation and Compensation Act 1996.

PN27

THE COMMISSIONER: I don't think we need take these on as an exhibit necessarily - we won't at this stage. I will just take them on board.

PN28

MR BRAITHWAITE: The first one I will deal with, sir, is it has got in the top right-hand corner, Part 1, page 1 to 3.

PN29

THE COMMISSIONER: Yes.

PN30

MR BRAITHWAITE: At the very bottom:

PN31

Disability of a worker means physical or mental injury including loss, deterioration or impairment of a limb, organ or part of the body or of a physical or mental, etcetera.

PN32

The other document is Part 4 of the Workers Compensation Act, at subclause 30:

PN33

Compensatability of disabilities, subject to the Act, a disability is compensated if it arises from employment.

PN34

I just highlight for the fact, sir, the definition of disability is clearly prescribed. The injury that Mr Delaine has clearly falls into the area defined in clause 3. Now, if I just go to the actual warnings, Commissioner, and I will hand those up if I may.

PN35

THE COMMISSIONER: Now, what are we looking at here?

PN36

MR BRAITHWAITE: There is four documents there, sir. There is the first warning, the second warning, the letter to Mr Quirk and the third warning.

PN37

THE COMMISSIONER: Now, just a moment, let me work this through. So the first document is the one headed - - -

PN38

MR BRAITHWAITE: The first document is dated 28.3.03.

PN39

THE COMMISSIONER: And there are various other things attached to that, well, what about if we call that one just for the current purposes, if we call that U1. That is the document headed 28th of 3rd.

EXHIBIT #U1 DOCUMENT DATED 28/03/2003

PN40

THE COMMISSIONER: Then you have got the next document is that one dated 2 April 2003?

PN41

MR BRAITHWAITE: No, 1 April, sir.

PN42

THE COMMISSIONER: 1 April 2003 and that looks likes another counselling and formal warning sheet and again there is an attachment there as well. How about we mark that one as U2.

EXHIBIT #U2 COUNSELLING AND FORMAL WARNING SHEET DATED 01/04/2003

PN43

THE COMMISSIONER: Then the next one in date order is the 2 April 2003, a letter to Mr Quirk from the AWU signed by yourself, Mr Braithwaite, we will mark that as U3.

EXHIBIT #U3 LETTER TO MR QUIRK DATED 02/04/2003

PN44

THE COMMISSIONER: Then the final one which is dated 4.4.2003 which is another counselling and formal warning sheet handwritten format, if we mark that as U4.

EXHIBIT #U4 COUNSELLING AND FORMAL WARNING SHEET DATED 04/04/2003

PN45

THE COMMISSIONER: I don't think we need to mark these other things that you are mentioning, your dictionary definition, Acts and agreements, we will take them as read, but just for the sake of identification. All right.

PN46

MR BRAITHWAITE: Commissioner, I deal firstly with 28th of 3rd, the nature of the problem:

PN47

Kevin's performance has been down and has not been keeping up with the agreed work schedule.

PN48

The summary of the warning:

PN49

Kevin needs to make an effort to keep up with the agreed work schedule.

PN50

And quantities:

PN51

Kevin is performing under 50 per cent of the required rate on a number of occasions. It was agreed by Kevin at the last meeting that he would work towards achieving this standard.

PN52

Now, Mr Delaine is on work restrictions and can only work within the capabilities of his medical certificates.

PN53

THE COMMISSIONER: Are you going to tell me what those work restrictions are?

PN54

MR BRAITHWAITE: I'm coming to that, sir. On the next page, and it is extremely hard to read, it is a medical certificate from Dr M.K. Grant, the first bit says: to perform modified duties, no normal duties, work at own pace and that is dated 28th of 3rd to 2nd of 4th. So clearly Mr Delaine must work at his own pace. Over the page again and bear in mind that Dr Grant is the treating doctor.

PN55

THE COMMISSIONER: Can I just ask what work it is that Mr Delaine does?

PN56

MR BRAITHWAITE: Production work in the dishwasher plant. He is currently performing duties associated with a schedule that we will come to shortly, sir, in relation to assembly work on thermostats, etcetera. The third document is from a Dr Beaumont. Mr Delaine was to the company doctor on return to work. The company doctor has indicated that he can work to the selected schedule. The question that we ask, where is the confidentiality between Mr Delaine and the doctor in the sense that the schedule attached to the medical certificate was not handed to the doctor by Mr Delaine, but was handed to the doctor, as we understand, prior to the consultation.

PN57

The doctor at no time to our knowledge has actually physically viewed the area for him to make a determination and notwithstanding all of that the treating doctor is the doctor that Mr Delaine is to follow. If in fact the company want to dispute the medical determination of Dr Grant then there is a jurisdiction for them to do that within the Workers Comp Tribunal and to try to do it outside of that Tribunal will breach, as we would say, the Workers' Rehabilitation Compensation Act of 1996.

PN58

The same thing goes with Mr Delaine's performance if the company believes that he isn't honouring his obligations in respect to his rehabilitation then they have got avenues through the Workers Comp Tribunal.

PN59

THE COMMISSIONER: Just on the previous document, the date of Dr Grant's medical certificate, is that 28.8.02?

PN60

MR BRAITHWAITE: 28.3.03, I think, sir, and it goes to the 1st of 4th.

PN61

THE COMMISSIONER: Are you sure? Down the bottom there?

PN62

MR BRAITHWAITE: Down the bottom?

PN63

THE COMMISSIONER: It says: I certify that I have examined or seen this worker on - do you see down the bottom there?

PN64

MR BRAITHWAITE: No, I think it is a three, sir, if you have a look under the line it has got a squiggle there. Doctors's writing are - - -

PN65

THE COMMISSIONER: What is the date do you say?

PN66

MR BRAITHWAITE: 28.3.03.

PN67

THE COMMISSIONER: 28.3.03, I will get Mr Bakewell to comment on any of this later on, but 28.3.03, you say?

PN68

MR BRAITHWAITE: Yes, sir.

PN69

THE COMMISSIONER: And Dr Grant's is dated the same? Sorry, that is Dr Grant's then.

PN70

MR BRAITHWAITE: Yes, Dr Beaumont is 30th of 3rd and then the work schedule and so forth follows, sir. Now, if we move to the second warning dated 1st of 4th.

PN71

THE COMMISSIONER: U2.

PN72

MR BRAITHWAITE: This warning comes 2 days after the first which is an indication that I suggested to Mr Quirk is setting Mr Delaine up for termination and not giving due process. The nature of problems:

PN73

Kevin's productivity has not improved since his first warning on 28th. His productivity continued to be significant below that which was agreed by him and the company on 6.3.02.

PN74

The 6.3.02 was a meeting, as I understand it, with a mediator.

PN75

THE COMMISSIONER: 6.3.03 by the look of it?

PN76

MR BRAITHWAITE: 6.3.03, sorry, was with a mediator and they were goals that were set. Notwithstanding what was set on that day, the fact that Dr Grant stipulated that Mr Delaine had a relapse, if you like, and was to now work at his own pace. Clearly overrides any schedules that may have been put in place. It goes to say:

PN77

Kevin's output must improve to the levels agreed by him on 6th, Kevin must cease malingering and endeavour to perform his work efficiently. Kevin must demonstrate a positive attitude towards improving his work performance, etcetera.

PN78

Now, I can't see how the company can require Mr Delaine to work outside his rehab and again I would say they have got a jurisdiction to deal with that matter if, in fact, they could establish that he was in fact not honouring his rehab. The other important point at this point in time, sir, is the fact that the delegate in Mr Marple and Mr Delaine indicated to the company management that they wanted myself to be present at this warning. That was refused by the company.

PN79

If I take the Commission to the Metal Industry Award and clause 3.2.1(b):

PN80

If the matter is not resolved at such a meeting the parties will arrange further discussions involving more senior management as appropriate. The employee may invite a union official to be involved in the discussions.

PN81

Clearly, it is a breach of the disputes procedure as outlined within the agreement. If I then take the Commission to my letter of 2 April and I need to indicate that I did have a phone conversation with Mr Quirk, the HR Manager, prior to sending the letter off and raise my concerns in relation to the breaches that were occurring both with regards the agreement, the discrimination that is applying to Mr Delaine and also their obligations under the Workers Comp legislation.

PN82

Again, I won't read through the letter, sir, but it outlines my view in relation to the actions of the company are clearly victimisation of an injured worker and that the fact the termination for poor performance is not deemed serious and wilful misconduct therefore you are advised that section 58B of the Workers' Rehabilitation and Compensation Act require the company to give 28 days notice and in fact ongoing payments. To that end, sir, the WorkCover Corporation has written to Electrolux outlining their obligations under the Act. I just read the first paragraph, the rest are extracts from 58B and C.

PN83

THE COMMISSIONER: So you are reading here from a letter from WorkCover addressed to Electrolux. You have a copy of this, it is dated 14 April 2003. SO just for current purposes if we mark this as U5. I'm presuming, Mr Bakewell, if there are any objections to these, the accuracy or anything of these you will jump up and object, but this is U5.

EXHIBIT #U5 LETTER FROM WORKCOVER ADDRESSED TO ELECTROLUX DATED 14/04/2003

PN84

MR BRAITHWAITE: Just the first paragraph:

PN85

I've been contacted by John Braithwaite, Industrial Officer -

PN86

I've got a promotion or a demotion -

PN87

of the Australian Workers' Union in relation to the abovenamed matter. Mr Braithwaite has advised Electrolux Home Products Proprietary Limited are considering terminating Mr Delaine's employment. As you are aware, Kevin has suffered a number of compensatable disabilities over the years whilst working you. We remind you of your obligation in relation to the provisions of suitable employment as per section 58B and C of the Workplace Relations Act, etcetera, etcetera.

PN88

So I won't go to that, but only indicate again that the company have obligations and if, in fact, Mr Delaine has not honoured his side of the equation, they have a jurisdiction which they can go to. Now, the next document, U4, is the third warning:

PN89

Failure to follow agreed work schedule. Failure to achieve agreed work rate. Kevin must follow the agreed work schedule and perform work at the agreed work rate. The schedule and rates have been agreed by Kevin. The company, the union organiser and shop steward and assisting psychologist, Astrid Usher. This is Kevin's third and final written warning to this matter.

PN90

Now, the company has taken no notice to the responses given in respect to the fact that Mr Delaine has a compensatable injury. I spoke to Mr Quirk by phone on the 4th prior to the warning being given, indicating that I wanted to be present, that this was pure victimisation, that the matter had been referred to WorkCover, that the matter was being referred to the Commission and that for you to proceed with a clear violation of Mr Delaine's rights and clear discrimination of an injured worker.

PN91

Mr Quirk indicated that my presence wasn't needed and was going to proceed to give the final written warning. That in itself to me establishes the discrimination outlined in clause 3 of the agreement that the company have selected Mr Delaine for special treatment. Mr Delaine is on medication for stress, depression and anxiety attacks, all emanating from his employment and the harassment and discrimination that he is put under at the moment.

PN92

Commissioner, we say that the company should be required to withdraw the three written warnings. If they have evidence that Mr Delaine has not fulfilled his obligations under the Worker's Rehabilitation and Compensation Act of 1996, that they take those issues up in the appropriate jurisdiction - the Tribunal - and that Mr Delaine is left and be treated equal as per other employees. Now, I will also say, sir, that the '97 agreement - if there is any arguments in relation to clause 3 of the current agreement - I will just indicate and I won't forward these on at the moment, sir, but I just indicate that the '97 agreement deals with the issue of equal opportunity and harassment.

PN93

The company has a harassment policy and it has an equal opportunities policy, all of which, go into detail how employees are not to harass or discriminate. How managers and supervisors are not to harass and discriminate. If we need to go through those now, I will, but as we are in conciliation I may save those for a bit later on, if the Commission pleases.

PN94

THE COMMISSIONER: So what you are specifically wanting from the Commission, or wanting out of this process, Mr Braithwaite, is number one, a withdrawal of the three written warnings. Number two, an undertaking by the company that if he does have any evidence or material to the effect that Mr Delaine is not working in accordance with his rehabilitation plan, or his return to work plan, then they will take that up via WorkCover processes?

PN95

MR BRAITHWAITE: And treat him equally.

PN96

THE COMMISSIONER: And certainly treat him equally with other employees, that is what you seek out of it?

PN97

MR BRAITHWAITE: That is correct, sir.

PN98

THE COMMISSIONER: All right. The very broad terms of the actual nature of Mr Delaine's injuries. It is back, is it?

PN99

MR BRAITHWAITE: Yes, a back injury, sir.

PN100

THE COMMISSIONER: Okay, that will do.

PN101

MR ...........: There are other injuries as well though .....

PN102

THE COMMISSIONER: Mr Bakewell.

PN103

MR BAKEWELL: Thank you, Commissioner. The first issue that the company wishes to touch on, Commissioner, is one regarding the process before you and, that is, that whilst we are here making formal submissions, it is my view Commissioner that that is contrary to what a dispute settlement procedure requires the company to do and, indeed, what the Commission is required to do at this very point and, that is, that the reference of the matter to you under the dispute settlement procedure, using section 170LW of the Act as the basis for that, requires that in the first instance the matter has been conciliated before the Commission and that conciliation has failed to resolve the dispute.

PN104

So as a matter of initial interpretation, Commissioner, what we would submit is that this matter ought to be immediately referred to a conciliation setting, so that the matter can be determined in that type of setting to see whether a resolution can be reached. This is not the first time that these types of matters have been referred by the AWU and it is the company's submissions, Commissioner, that one of the reasons that some of these disputes perhaps are being resolved as quickly as they can, is that moving effectively to a formal hearing process such as this, is not giving in essence the process of conciliation, as conciliation from the company's point of view is to be interpreted, a fair go.

PN105

Conciliation from the company's perspective, Commissioner, would be akin to the type of process that you might see in an unfair dismissal conference where the parties briefly outline their position and the Commissioner has an opportunity to speak to both sides and work towards some type of middle ground or a settlement, if one can be reached. Like an unfair dismissal proceeding in some matters a course of action can be agreed and the matter can be resolved in that type, if you like, informal environment.

PN106

THE COMMISSIONER: Can I just indicate that that is in fact my intention that with any Federal dispute matter, whether it comes on under a 170LW, or a 99, or whatever, it is my practice to bring it firstly on in this setting and get the parties at least to put some initial details down on transcript because some of these disputes can go on for awhile and it is good to have a bit of a record of basic facts and so on in the transcript, that is the reason I always call these matters on in this format to start with, but it is certainly my intention after you make any initial comments, so I just know basically where you are coming from, certainly, my intention to go into the ordinary conciliation format.

PN107

MR BAKEWELL: Thank you, Commissioner.

PN108

THE COMMISSIONER: Indeed, I think section 170LW basically assumes that in a sense. I mean, it does talk about procedures in a certified agreement for preventing and settling dispute, may allow the Commission to do certain things, and the main thing is to settle disputes, you know, so I would regard that as being you know primarily by conciliation so, anyway, that is my intention as soon as you put whatever you need to on the record we will adjourn into simple informal off the record conference.

PN109

MR BAKEWELL: Thank you. Okay, thank you, Commissioner. Given that we will be moving the matter into conciliation, what I would intend to do is outline the principal points of disagreement at this stage to set the scene.

PN110

THE COMMISSIONER: Yes.

PN111

MR BAKEWELL: The first is that it will be the company's submissions that insofar as Mr Delaine has an injury that is subject to the legislation of WorkCover, he has with the assistance of the company, a mediator and representation from the union, agree to a program of work as part of his modified duties, Commissioner. The reason that that program of modified work ostensibly came about is because of the company's concern for Mr Delaine to walk off the job, so to speak, take lots of breaks, more so than it would have deemed necessary for the type of modified duties he was performing.

PN112

As a consequence of those concerns, two meetings took place which resulted in a documented timetable of modified duties to be undertaken and of the breaks to be taken during that period. That is a written document, it has occurred twice. It has occurred in the presence of the union with Mr Delaine and in the presence of the company. That modified schedule, if you like, or that schedule of duties was initially agreed to by Mr Delaine's treating doctor, which is Dr Grant, and it was agreed that that schedule of duties would be, if you like, reviewed and checked by an independent person in the company who was a company engineer, who was given the task of ensuring that Mr Delaine worked to that schedule. What indeed occurred - - -

PN113

THE COMMISSIONER: When was it originally agreed with Dr Grant?

PN114

MR BAKEWELL: In terms of dates I believe at 3 December.

PN115

THE COMMISSIONER: Last year?

PN116

MR BAKEWELL: Yes. I will go into the nitty-gritty of the detail further in, in conciliation.

PN117

THE COMMISSIONER: Sure.

PN118

MR BAKEWELL: But to say that this has been in place for some time - and what you will also find in conciliation, Commissioner, that what led to that was a number of discussions and counselling sessions with Mr Delaine where a number of his concerns were taken into account, culminating in this mediation and this said program. What has then occurred is there was an agreed follow up meeting to review the outcome of that and that meeting did occur in the New Year - that was around February some time - and at that meeting, although productivity had improved, the company raised its concern regarding the number of breaks that had been taken by Mr Delaine as per the agreed schedule and that he must improve the taking of those breaks in accordance with the agreed schedule.

PN119

Shortly thereafter, Mr Delaine's own doctor, Mr Grant, issued a number of WorkCover certificates - I believe two or three in the total - and each of those certificates has in effect indicated an improvement in Mr Delaine's medical condition, insofar as those certificates noted that Mr Delaine should be on an increasing work hardening program, that is, his schedule of modified duties would include normal work in a first certificate that included one hour of return to normal duties, and in the subsequent certificate that was increased to two hours.

PN120

So here we have a background where we have an agreed schedule which he is working to. We have a situation in which we have certificates from the treating doctor indicating an improvement in his program and the company indicating its concern that, although the program is in place - and we have been on it for some time - that he is not meeting the requirements of that program and that he must, which he agrees to do.

PN121

Subsequent to that there is a significant without course, shortly - I think it is perhaps a few days after the last certificate is issued by Dr Grant indicating an improvement in his condition.

PN122

A report is issued by the engineer which shows a significant deterioration in the number of breaks that Mr Delaine is taking. I think it is something like, he has only achieved 50 per cent of his productivity targets and the number of breaks is way, way above that that he has agreed to take. The company sits down with Mr Delaine and Mr Marple in a form of a disciplinary hearing to seek an explanation as to why he has not been able to achieve the agreed schedule of modified duties.

PN123

Mr Delaine is unable to give any satisfactory answer to that. As a consequence of that the company, Commissioner, issues a warning to Mr Delaine about the continued non-attendance to those breaks. I think you have been given a copy of that first warning.

PN124

THE COMMISSIONER: The first warning, yes.

PN125

MR BAKEWELL: And the issue concerning the productivity. We say, Commissioner, that it is then more than a coincidence on that very afternoon that the warning is issued, Mr Delaine goes back to his doctor, Dr Grant, who only a few days before has issued a certificate indicating an improvement in his medical position. Mr Delaine attends work the following day with a certificate from Dr Grant now saying that: Mr Delaine should work at his own pace. Totally against the flow of 6 months of program, the agreed schedule and the recent medical certificates.

PN126

Naturally, Commissioner, the company is very suspicious about this. The company in turn sends Mr Delaine to Dr Beaumont. Dr Beaumont assesses Mr Delaine insofar as that previously agreed schedule, which is a document that is owned jointly by the company and Mr Delaine, and assesses Mr Delaine against that schedule and he issues a certificate, Commissioner, indicating that Mr Delaine is fit and able to perform duties in accordance with that schedule.

PN127

From the company's perspective, Commissioner, it reinforces its suspicion that it has, that the initial certificate issued by Dr Grant saying: he should only work now at his own pace, is not correct. It continues to monitor Mr Delaine's performance and performance again is significantly below what was agreed in the schedule. I would say, Commissioner, that the natural upshot of this is, as Mr Braithwaite has indicated, a second warning was issued concerning that, wherein, the company asked Mr Delaine and Mr Marple: what was the reason for that? The reason that Mr Delaine has put forward in his defence is that: his certificate as issued by Dr Grant permits him to work at his own pace.

PN128

So what we now have, Commissioner, is a dispute between the parties as to Mr Delaine's ability to work in accordance with that agreed schedule. Noting, Commissioner, that this matter now is one wherein the agreed schedule of work is in dispute and we have a dispute between medical practitioners concerning Mr Delaine's ability to perform that work, the company has taken further steps, Commissioner. This information will be new to Mr Braithwaite, but I will raise it now for the record, so we can discuss it in conference.

PN129

Noting that those matters were in dispute, the company has first of all sought Mr Delaine's permission to access any psychological reports that he might possess, as the company understood that he was undergoing some treatment for stress, etcetera. To see if anything in those reports would help explain the reason why he could not meet this schedule of work and Mr Delaine refused that request.

PN130

MR BRAITHWAITE: Commissioner, I need to make an objection in relation to this matter. The company cannot seek from Mr Delaine those reports. If in fact they require those reports, there is a process under the Workers Compensation - under the Rehabilitation and Compensation Act for the company to acquire those reports. It is irrelevant to the proceedings before the Commission and they have no right to receive those.

PN131

MR BAKEWELL: I suppose for the record, Commissioner, simply that the company asked, it has not pursued the matter any further because Mr Delaine has refused that request. The company then took further steps. Noting that Mr Beaumont in his assessment had interviewed and assessed Mr Delaine in his clinic, bought Mr Beaumont to the site where Mr Delaine was working to conduct an on-site assessment of both his condition and the work schedule and to actually view the work first-hand to see whether or not the previous prognosis that he had made was indeed correct. He has only this morning, Commissioner - and I will shortly provide a copy to Mr Braithwaite - provided an assessment of that.

PN132

MR BRAITHWAITE: Commissioner, I need to object again. There is processes under the Workers Compensation and Rehabilitation Act for the company to go to the Tribunal and seek that material. If in fact his claim is in dispute that is where they go. The reality is the treating doctor is the person who is handling the claim under the Act. Dr Beaumont is not and has not been referred by the exempt employer via the Act to be involved in the matter so that whole direction is outside the terms of the Act.

PN133

THE COMMISSIONER: I understand where you are coming from, Mr Braithwaite, but we are just at this stage, just trying to get an idea of what has happened - or what has happened as at this moment, so I'm taking it in that light.

PN134

MR BAKEWELL: Thank you, Commissioner. Yes, and that is the way it is intended.

PN135

THE COMMISSIONER: Yes.

PN136

MR BAKEWELL: Further to that, Commissioner, the company has also taken steps by way of - I think it is an occupational rehabilitation expert - to again as person number 4 to assess the schedule of work and the condition therein, and report has also been provided to the company today, and which the company will also provide to Mr Braithwaite, wherein again - - -

PN137

THE COMMISSIONER: This is a new report?

PN138

MR BAKEWELL: This is a new report.

PN139

THE COMMISSIONER: Your new report from a new rehab expert?

PN140

MR BAKEWELL: Yes.

PN141

THE COMMISSIONER: Yes.

PN142

MR BAKEWELL: Has again said, not only can Mr Delaine perform those duties, but that he can do so easily. So the key issues I would submit that the Commission has before it in conciliation is to work out with the parties, A, there are issues that need to be dealt with under the Workers Compensation and Rehabilitation Act, which the company will submit it will deal with and deal with in the appropriate way.

PN143

Secondly, the issue insofar as it relates to the employee's performance at work and issues regarding that the employee's conduct and work on the job, how those issues are dealt with concurrently and the difference of opinion that we have is that the company views that the two matters can proceed concurrently and one is not dependent on the other, that the final issue concerning whether the company can, or cannot move to the ultimate sanction - which would be in this case Mr Delaine's termination of employment - is regulated by 58B of the Workers Compensation Rehabilitation Act, wherein the company has to provide appropriate notice to the Authority regarding its intentions.

PN144

If the governing authority has any concern with the company's intentions it has inspectors under the Act who are equipped to enter the workplace to conduct an assessment, to review the case files, etcetera and to make certain determinations concerning that. So they are our submissions at this point, Commissioner, to give you some background of what we see as being the key issues and it is our submission that the matter ought to move to conciliation.

PN145

THE COMMISSIONER: Just one question. Does the rehabilitation person - or did the rehabilitation person actually speak to either of the doctors involved?

PN146

MR BAKEWELL: No, the rehabilitation person has purely assessed the duties - - -

PN147

THE COMMISSIONER: The duties and the level of fitness.

PN148

MR BAKEWELL: Yes, the duties as per the schedule.

PN149

THE COMMISSIONER: Yes.

PN150

MR BAKEWELL: And the workplace, the nature of the injury. So we can go into the details of that in terms of what it provides and the assessment that it makes.

PN151

THE COMMISSIONER: All right, thank you. Is there anything else you want to put on for the record, Mr Braithwaite?

PN152

MR BRAITHWAITE: Yes, I do, sir, I need to respond to a couple of matters. The first one I want to deal with is Mr Bakewell's assertions that Dr Grant has issued a certificate that is in fact suspicious, I think the words were that Mr Bakewell used. There's enough decisions in relation to the treating doctor. Mr Bakewell failed to advise that when Dr Grant issued the certificate he also referred Mr Delaine to an occupational physician in Dr Mills and that appointment is scheduled for 7 May.

PN153

He also failed to tell the Commission that Dr Grant actually contacted the company while Mr Delaine was in his rooms on the 28th and spoke to the company's rehabilitation officer, Tammy Tam, advising of his concerns with regards to Mr Delaine and in fact indicated that he was to do no normal duties and stressed the fact that Mr Delaine was in fact not coping with the work hardening that had proceeded. If that needs to be tested we have the doctor's notes of the conversation with the company rehab. I think that is all I need to say at this time, sir.

PN154

THE COMMISSIONER: Just to clarify, who is Dr Mills?

PN155

MR BRAITHWAITE: Dr Mills is an occupational physician whom Dr Grant has referred Mr Delaine to.

PN156

THE COMMISSIONER: We don't have a report from Dr Mills yet?

PN157

MR BRAITHWAITE: No, sir, that first appointment could only be made on 7 May.

PN158

THE COMMISSIONER: 7 May.

PN159

MR BRAITHWAITE: The company were well aware of that as I told Mr Quirk on 2 April.

PN160

THE COMMISSIONER: Okay. Well, then we will go off the record and I can indicate we won't need to go back on the record again, we will adjourn into conference and take it from there.

OFF THE RECORD

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #U1 DOCUMENT DATED 28/03/2003 PN40
EXHIBIT #U2 COUNSELLING AND FORMAL WARNING SHEET DATED 01/04/2003 PN43
EXHIBIT #U3 LETTER TO MR QUIRK DATED 02/04/2003 PN44
EXHIBIT #U4 COUNSELLING AND FORMAL WARNING SHEET DATED 04/04/2003 PN45
EXHIBIT #U5 LETTER FROM WORKCOVER ADDRESSED TO ELECTROLUX DATED 14/04/2003 PN84