AG2003/5902, Transcript of Proceedings [2003] AIRCTrans 4941 (6 November 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 5081
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2003/5902

HEALTH SERVICES UNION
OF AUSTRALIA

and

MELBOURNE HEALTH

Notification pursuant to section 99 of the Act
of a dispute re the employer allegedly withholding
information from an employee

MELBOURNE

11.37 AM, WEDNESDAY, 22 OCTOBER 2003

PN1

MS M. SALMON: I appear on behalf of Melbourne Health, and appearing with me is MR M. DAVOLI, who is the Manager for Human Resources in the Mental Health Area, and MR C. TANTI, who is an Area Manager for Northwestern Mental Health.

PN2

MS L. WHITE: I appear on behalf of the HSUA. Appearing with me is MR B. O'CONNOR, who is the Industrial Officer of HECSU, and MR B. SIMON.

PN3

THE SENIOR DEPUTY PRESIDENT: Well, it is an HSUA notification. What is it all about?

PN4

MS WHITE: A section 99 dispute, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, I read that.

PN6

MS WHITE: Sorry, it is about - - -

PN7

THE SENIOR DEPUTY PRESIDENT: Are you going to enlighten me?

PN8

MS WHITE: Yes. It is about - there are some allegations that the employer have laid against Barry, and - - -

PN9

THE SENIOR DEPUTY PRESIDENT: Who is Barry?

PN10

MS WHITE: Barry Simon, our member.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes?

PN12

MS WHITE: And the dispute is about access to appropriate documentation.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes. Well, go on. What do you want me to do about it?

PN14

MS WHITE: Well, your Honour, Barry Simon is a Registered Nurse, a psychiatric nurse who works for Melbourne Health at the Broadmeadows Adult Acute In-patient Unit.

PN15

THE SENIOR DEPUTY PRESIDENT: Sorry. Where?

PN16

MS WHITE: The Broadmeadows Adult Acute In-patient Unit.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes.

PN18

MS WHITE: And he has been working with people with a mental illness for 29 years. In a nutshell, your Honour, this dispute is over the employer's refusal to provide adequate documentation, being progress notes, to Barry Simon, which relate to a number of allegations regarding his clinical practice that are currently against him. The union believes that this constitutes the employer denying Barry natural justice. Without appropriate clinical notes being provided Barry feels he cannot respond adequately. The union is concerned that the employer is preventing Barry from explaining why he made a clinical decision relating to a client's mental illness, because they are not interested in his response, as they have predetermined the outcome.

PN19

We are here today in an attempt to resolve this dispute, and the union will request that the Commission determine the dispute through the issuing of an order. It should also be noted that the Commission has powers to conciliate here and to determine the matter in accordance with clause 26.1.3 of the Melbourne Health Psychiatric Services Certified Agreement 1998, to which the employer and the union are respondents.

PN20

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of that agreement? Thank you. You have handed to me clause 26. - which deals with dispute resolution. Yes. So this is brought under the certified agreement; not under section 99, is it?

PN21

MS WHITE: That is correct.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes. Do you want to amend your application, do you?

PN23

MS WHITE: I am sorry?

PN24

THE SENIOR DEPUTY PRESIDENT: You want to amend your application?

PN25

MS WHITE: It is just making - it is just saying that you actually have the power to do that, your Honour.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

PN27

MS WHITE: Okay?

PN28

THE SENIOR DEPUTY PRESIDENT: Yes.

PN29

MS WHITE: We submit that Barry Simon should be able to access further information relating to the allegations against him to enable him to adequately respond to his allegations. We say this because the allegations against Barry question clinical decisions he has made and fundamentally challenge his clinical judgment. These are not issues that the union or Barry takes lightly. We say that given the complex nature of the allegations against Barry and the professional implications for him should he be disciplined, it is imperative that he be furnished more information, which will throw light onto the rationale behind the clinical decisions he made.

PN30

We say furthermore that because of the alleged incidents occurred in late May and early June this year it is not unreasonable to seek more information. Now, the history to the dispute, your Honour, is that on approximately 31 May 2003 Barry put in a complaint of discrimination against Ms Chris Lupsom, who is a unit manager of the Broadmeadows Adult Acute Unit where Barry works.

PN31

THE SENIOR DEPUTY PRESIDENT: Sorry. Against who?

PN32

MS WHITE: Ms Chris Lupsom.

PN33

THE SENIOR DEPUTY PRESIDENT: And she is?

PN34

MS WHITE: The unit manager of the acute in-patient unit that Barry works at.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes.

PN36

MS WHITE: Okay. The only response to this formal grievance was on 23 June 2003 when Barry received a letter from Chris Tanti, who is the Area Manager of the Northwest Area Mental Health Service, and in this letter Mr Tanti refers to a recent conversation with Barry, during which Mr Tanti advised Barry of some complaints against him, and I wanted to hand up some documents at this stage. I was actually going to hand them all up together and work through them, if that is okay.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes.

PN38

MS WHITE: So I have marked the letter to which I am referring as number 1 in the corner. I don't know - - -

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN40

MS WHITE: Okay. On 12 August in 2003 Mr Chris Tanti wrote to Barry detailing five allegations against him, and in that letter Mr Tanti requests that Barry attend a meeting on 29 August. That is document 2 marked in the corner, the right hand corner.

PN41

THE SENIOR DEPUTY PRESIDENT: Sorry. That is a letter of 12 August - - -

PN42

MS WHITE: Yes, to Mr Simon.

PN43

THE SENIOR DEPUTY PRESIDENT: - - - to Mr Simon, from?

PN44

MS WHITE: Chris Tanti.

PN45

THE SENIOR DEPUTY PRESIDENT: Mr Tanti again. Yes.

PN46

MS WHITE: Then on 9 October a phone discussion took place between the union and Mr Tanti in which the union requested further detail regarding the allegations, these allegations as detailed in the previous document, and during which we outlined the reasons for requesting this detail. On 10 October HACSU wrote to Mr Tanti again detailing the reasons why the union was seeking further information regarding the allegations, and I refer your Honour to letter number 3 dated 10 October to Mr Chris Tanti from myself.

PN47

If I can just draw your attention particularly to the second paragraph, your Honour, where we detail that we actually don't want to - well, we confirm to Mr Tanti that we are not actually interested in the client notes - sorry, the client names in this documentation; and also to paragraphs 4, where we make reference to the time frame, and paragraph 5, where we raise our concerns about management - by management not allowing Barry more information with regards to the allegations that we feel that we - the employer is denying Barry natural justice.

PN48

So on the same day, so 10 October, two conversations occurred between the union and the employer, during which the union again requested further detail with regards to the issue at hand, being the further detail about the allegations, which the employer denied. Upon that advice that the employer would deny us access to further information the union advised the employer that a dispute would be lodged in the Commission on the morning of 13 October, and indeed, that dispute was lodged on the 13th, and then later that day the union received a letter from Mr Chris Tanti, which is again dated 10 October, to myself, and I have marked it as number 4, document 4.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Tanti indicates that certain documentation will be made available. Has that been made available?

PN50

MS WHITE: Yes, it has. We actually received that information on 17 October.

PN51

THE SENIOR DEPUTY PRESIDENT: And you still want more, do you?

PN52

MS WHITE: Yes, we do. The issue - sorry, the documents provided by the employer - some of the documentation provided is generic, and some of the information doesn't actually relate to the allegations at hand. On 21 October the union against sought further information from the employer, but was advised by Mr Chris Tanti that, in his opinion the union had all the evidence it needed. To date Barry has not received from the employer a formal response to his initial complaint of discrimination against his unit manager.

PN53

Your Honour, the documents furnished by Melbourne Health do go some way to contextualise the alleged incidents for Barry. However, we say that they do not provide sufficient detail of the alleged incidents for him to adequately respond to these allegations, which question his clinical judgment. The employer says that the documentation so far provided is adequate. We say it is not. Some of the documentation, as I said previously, is generic in nature, and, as I said previously, some of it relates to issues outside the scope of the current investigation and therefore is not relevant to the investigation.

PN54

Taken as a whole the documentation supplied does not provide sufficient detail to enable Barry to answer the allegations to the depth required. We say that the employer has not submitted any evidence that enables Barry to remember the rationale behind clinical decisions he made over five months ago. We say that it is not unreasonable for the union to request such information.

PN55

Furthermore, the union is concerned due to previous instances regarding discipline matters with HACSU matters that the employer will not give Barry information that may assist his responses or defend his decisions. More alarming is the fact that the employer does not have a fair process for decision making regarding this matter, as both Ms Chris Lupsom, the Unit Manager, and Mr Chris Tanti, the Area Manager of Northwest Area Mental Health have been recipients of complaints against Barry, and it seems also that it will be the managers who will determine Barry's fate.

PN56

THE SENIOR DEPUTY PRESIDENT: Well, who else is likely to? Who else should?

PN57

MS WHITE: Well, we say it should be an independent - a person independent to the investigation process.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes.

PN59

MS WHITE: So the union is concerned that the managers are too closely involved in the investigation and are not independent decision makers. HACSU has ongoing issues with this employer regarding due process with respect to discipline investigations and fairness in decision making. These concerns were outlined in the AIRC recently in a five day unfair dismissal arbitration case, number VR2002 - sorry, 2003 - sorry. Excuse me, your Honour. The number is U2002/6191. The union is also concerned that the employer has determined the outcome of this investigation and found Barry guilty prior to him being able to adequately respond to the allegations. This is a fundamental denial of natural justice.

PN60

Your Honour well knows the importance of transcript when attempting to record decisions and statements made in the Commission. We say that the client's progress notes, paperwork that Barry reads and adds entries to on a daily basis are similar. They document the mental state of the patient officially at the time. An important piece of information when you are being reprimanded for a decision where it states the client was delusional. The documents we seek, your Honour, are documents to which Barry would have access within his role as a clinician and would be required to complete as part of his daily role as a Registered Psychiatric Nurse on an acute unit, which includes paperwork such as instant reports and client progress notes.

PN61

Finally, we say that the employer has attempted to block access to such documents, citing they are constrained by legislation around confidentiality, and therefore unable to furnish Barry with documentation. However, unedited progress notes that do not relate to the allegations have been furnished by the employer. It is also common practice for employers to provide this type of documentation to the Nursing Board, to the AIRC, and to the union on a regular basis. Our concern, your Honour, is that client-sensitive documents seem to be furnished willingly by the employer when they attempt to prove their allegation, but are not provided when we ask for them in order to provide a defence.

PN62

We submit, your Honour, that the employer has been extremely unreasonable in its attempt to disallow Barry access to appropriate documentation. We say that to prevent access to appropriate documentation is to disallow Barry the natural justice to which he is entitled. We say that it is imperative that Barry be enabled to view documentation which will allow him to give a fully informed response to the allegations against him, and therefore detail the rationale behind the clinical decisions that he made over five months ago. If not, we say the employer should drop the allegations. We say, your Honour, that this matter needs to be resolved as a matter of priority as these allegations have been against Barry for five months and, your Honour, I would like to tender the orders we seek to the Commission.

PN63

Basically, the documents that we seek relate to the allegation number 4 and number 5, as detailed in the letter dated 12 August, number 2, to Barry Simon from Chris Tanti, the document I tabled earlier, and that is with - the information we seek with regard to allegation 4 is accurate date, detail of the time and date of the alleged incident because - - -

PN64

THE SENIOR DEPUTY PRESIDENT: The date has been given.

PN65

MS WHITE: Pardon?

PN66

THE SENIOR DEPUTY PRESIDENT: The date has been given. It is 2 June. You want the time, do you?

PN67

MS WHITE: No. We also seek the date, because some of the other documentation that we have been given actually says 3 June, so we are actually unsure whether actually it is the 2nd or the 3rd. So it is confirmation on the actual date, but also confirmation of the time, because there is - again some of the documentation suggests different times; and with regards to allegation 5, again on document number 2, we seek the client progress notes regarding the patient's mental state, the detail of the persons involved in the decision to provide an escort of two male staff, and the date and time of this decision, plus any detail of any leaves prior to the incident and that is - leaves are leaves from the unit, and any reports back from the parents with regards to those leaves. That is it, your Honour.

PN68

THE SENIOR DEPUTY PRESIDENT: Has the formal session been conducted, as referred to in the letter of 12 August?

PN69

MS WHITE: No. Not as yet.

PN70

THE SENIOR DEPUTY PRESIDENT: Has it been scheduled?

PN71

MS WHITE: No, sir. That is why we are here. The union says that we need to see this information before Barry can actually speak to the allegations, which would be in a formal session.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms Salmon?

PN73

MS SALMON: Thank you, Senior Deputy President. We confirm with the union that Barry Simon has worked for Northwestern Mental Health since January 2000. In May of the same year he was promoted to the position of Associate Charge Nurse and he is currently a Team Leader at the Broadmeadows Adult Acute Psychiatric Centre. Late last year an informal - - -

PN74

THE SENIOR DEPUTY PRESIDENT: He is still working - he is working currently, is he?

PN75

MS SALMON: Yes, sir, he is. Late last year an informal discussion took place with Lisa White from the union, Denise Guppy also from HSUA too, Barry Simon, Maurice Davoli, and Chris Tanti, and during the discussion it was noted that Mr Simon's performance had actually declined. It was also discussed that a close family member had suffered a personal hardship. An unfortunate situation had arisen, and we believe that the performance may have been related to that.

PN76

THE SENIOR DEPUTY PRESIDENT: When was this meeting?

PN77

MS SALMON: This was late last year.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes.

PN79

MS SALMON: And I am sorry, sir, I don't have the exact date, but it was around we think - - -

PN80

THE SENIOR DEPUTY PRESIDENT: Have we got a month?

PN81

MS WHITE: I think it was December.

PN82

MS SALMON: December, just before Christmas. Thank you for that.

PN83

THE SENIOR DEPUTY PRESIDENT: Yes.

PN84

MS SALMON: Melbourne Health was cognisant of the experience that Mr Simon had and we were willing to assist wherever possible. The discussion was about how could we make sure that the situation that was currently going on would not continue, and how could we assist Mr Simon in ensuring that he was able to carry out his duties to the standard that we expected.

PN85

Unfortunately the reason we are here before you, Senior Deputy President, is because Mr Simon's performance has not improved. Rather than attempt to deal with that problem the union has decided to use a course of prevarication. The charge here before us is withholding information. We have, as put to you in the exhibit by the union, we have certainly supplied a significant amount of information to the union, which we believe goes to the heart of the issues that we outlined in our letter to Barry Simon on 12 August. We have followed the process, as I think you have got a copy of it there, in the award under clause 26.3:

PN86

Where disciplinary action is necessary a management representative shall notify the employee of that reason.

PN87

We have done that in our letter of 12 August. We attempted to make an appointment, schedule a meeting, which we did as outlined in that letter. That was cancelled by the union. We re-scheduled the meeting again in October. That was again cancelled by the union, and unfortunately the reason we are here is to try and bring the parties together in an attempt to resolve this particular matter. The delay unfortunately between the time that this letter was forwarded to Mr Simon and now has created its own problems, and we will refer to those later in our submission.

PN88

But as you can see the letter - the fax that we received from the union on 10 October gave us an hour and 15 minutes to produce the documentation, and as the representative from the union confirmed the issue to the AIRC was already on its way. We could complain that we think the union has actually delayed the process to the point where it is now losing its efficacy, and we are very concerned about that. But what we are really here to do is to try and resolve this matter before you, and we would seek your assistance in doing that. Our position is set out in that exhibit that you have got before you. We have shared all of the information. We have handed it over. We offered it prior to the Commission being notified. We have handed it across to the union.

PN89

We haven't included client files for two reasons. First and foremost the client files - and I would stress that we do not hand them out willy-nilly. Client files are protected by the Health Records Act 2001. Their release are prescribed under the Act and we do not believe that the demands by HACSU fulfil the criteria as set out in Principle 2 Use and Disclosure of the Act, and we are very rigid in our approach to those things. We have not handed client files across to the Commission in the past, and we may have had them subpoenaed, but we have argued long and hard that we have an obligation under the Health Records Act not to do that without being very clear that some other form of legislation over-rides the existing legislation by which we are bound.

PN90

But more importantly, the files aren't relevant. The allegations made against Mr Simon are not about questioning his clinical judgment. His decisions, yes. His decisions, based on the fact that he refused to follow legal directives, and if I could just outline the reason why we believe that. The process within the unit is - with respect to patients, is that they are seen - they arrive either voluntary or involuntary, and in some - in the cases outlined on the letter 12 August to you there is a combination of both. In the case of these patients they are seen by a consultant, a doctor. The consultant makes the decision as to drugs, observations and handling of these patients, and they are handed down through file notes and through to the nursing in handover.

PN91

These instructions must not be altered or interfered with unless permission from the responsible medical personnel is obtained first. They are for all intents and purposes legal directives which must be obeyed. Not weighed, not considered, not altered, and in certain circumstances, particularly with respect to involuntary patients, there is a series of legislation that we are bound to follow. So it is not just gaining permission from the doctor; it is also being cognisant of the legislation. That protects the staff, the patients, the visitors, the family, and the patients themselves. In the cases that we have outlined in our letter dated 12 August a directive was either ignored, altered or not followed.

PN92

Our investigation bore that out. Our objective was to bring Mr Simon into a meeting and to discuss that with him. No decision had been made, and has yet to be made concerning the outcome, because we have yet to hear what Mr Simon has got to say. Instead, unfortunately, we are here arguing about whether we should hand over additional information, where in fact I would prefer we were here to try and resolve the impasse. The concerns raised by HSUA too are real. We have a problem with trying to get the union to sit down and discuss these matters in a short period of time, and we have yet to resolve that, and we are open to discuss that and put together a process that we would both agree to and follow, so that we can move forward on these issues.

PN93

Senior Deputy President, we seek your assistance in bringing the two parties together to discuss the allegations before us and reach an agreement on the steps to be taken to pursue these and more recent allegations, unfortunately, which are in the wings and under investigation at the moment. They have come to light only in the last couple of days. We hope that we can reach an agreed process and be able to use it in other disputes from now on. Thank you.

PN94

THE SENIOR DEPUTY PRESIDENT: How do you want me to proceed?

PN95

MS SALMON: I would request that perhaps we could call this into conference and try and resolve it.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, Ms White. What do you say about adjourning into conference?

PN97

MS WHITE: Yes, your Honour. We are happy to go to conference.

PN98

THE SENIOR DEPUTY PRESIDENT: Yes. Well, we will do that now.

NO FURTHER PROCEEDINGS RECORDED