C2003/6770, Transcript of Proceedings [2004] AIRCTrans 365 (23 January 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS

O/N 5889
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GAY

C2003/6770

THE POLICE ASSOCIATION

and

VICTORIA POLICE FORCE

Application under section 170LW of the
Act for settlement of dispute
(certification of agreement) re alleged
failure of Victoria Police Force to
facilitate an employee's return to work
in a timely manner and re-credit employee's
recreation leave

MELBOURNE

10.03 AM, WEDNESDAY, 14 JANUARY 2003

PN1

MS N. KEPERT: I appear for the Police Association, and with me is MR A. WALSH, also of the Police Association.

PN2

MR A. WRIGHT: I have with me today MR G. PATTERSON, appearing on behalf of the Chief Commissioner of Police.

PN3

THE COMMISSIONER: Yes, Ms Kepert?

PN4

MS KEPERT: Commissioner, I provided a series of documents to the Commission on Monday. I would just ask if you have received that.

PN5

THE COMMISSIONER: You did. I mark that - do you tender that material?

PN6

MS KEPERT: Yes, I do.

EXHIBIT #K1 SERIES OF DOCUMENTS

PN7

THE COMMISSIONER: Yes, Ms Kepert. Now, I will tell you what I have read. I was interrupted a few minutes ago. I have read through to - yes, most of document 5, so you will have to slow down when you get beyond there. All right?

PN8

MS KEPERT: Okay. Thanks, Commissioner. Commissioner, the Police Association argues the Victoria Police failed in its duty to facilitate Sergeant Gary Sayer's return to work from WorkCover in a timely manner. This failure meant that Sergeant Sayer did not receive an income for 16.2 weeks or 81 days and was forced to use his own recreation leave for this entire period. I would briefly like to outline the circumstances of this matter to the Commission. As outlined in the document that I provided, Sergeant Sayer has been working with the Victoria Police performing operation duty since 1964, and his gazetted station is Glen Waverley.

PN9

Sergeant Sayer was in receipt of weekly WorkCover payments from 11 April 2001 until they were terminated at the expiration of 104 weeks on 3 April 2003. The grounds relied on by Cambridge, the insurer, in terminating Sergeant Sayer's WorkCover payments were that he had a current work capacity and that he had received payments of weekly compensation for 104 weeks or more. This decision was communicated to Sergeant Sayer in correspondence dated 5 March 2003, which was 21 days prior to his appointment with the Police Medical Officer, and I refer you to the first tab in the document provided. On page 1 it outlines the reasons for the expiry of - the termination of the WorkCover payments.

PN10

THE COMMISSIONER: Yes.

PN11

MS KEPERT: The Police Association submits that Victoria Police Force should have acted on the available medical evidence and initiated return to work discussions as early as January or February 2003. The Force was aware of the looming expiration of 104 weeks and that Sergeant Sayer would be without an income from 3 April 2003. Again, tab 1 indicates that there was extensive medical evidence that Sergeant Sayer was fit to return to work in a graded return to work program as early as December 2002, and page 5 of tab 1 shows that both Dr Richards, Sergeant Sayer's treating doctor, indicated at a letter received by Cambridge on 10 January 2003 that he believed that it would be appropriate to initiate a return to work plan, and - - -

PN12

THE COMMISSIONER: You are looking at the summary in - you have taken me to the summary, point 5, are you, which is - - -

PN13

MS KEPERT: Reasons for giving the notice, the termination of WorkCover payments.

PN14

THE COMMISSIONER: All right. Well, what document are you in?

PN15

MS KEPERT: I am in document 1.

PN16

THE COMMISSIONER: Yes. Document 1, yes.

PN17

MS KEPERT: On page 5.

PN18

THE COMMISSIONER: I see. I am sorry. I went to document 5.

PN19

MS KEPERT: Reasons for giving the notice. Basically both the consulting psychiatrist and Sergeant Sayer's treating doctor indicated that they had a different opinion to that of the PMO and believed that Sergeant Sayer had some capacity for work, and Cambridge acted on that advice, regardless of what the PMO had recommended in December 2002. On that basis the Police Association undertook steps to initiate discussions to start to talk about a return to work plan for Sergeant Sayer, because clearly we didn't want to wait until the WorkCover payments were terminated in April to start those discussions, because he was facing a gap in his income from that period.

PN20

THE COMMISSIONER: So when did you start those discussions?

PN21

MS KEPERT: I contacted, on behalf of the Police Association, the injury management consultant in February 2003.

PN22

THE COMMISSIONER: Yes, I see, and that narrative is set out in tab 5, isn't it?

PN23

MS KEPERT: That is right.

PN24

THE COMMISSIONER: Yes. So late February you wanted a case conference.

PN25

MS KEPERT: That is right. But despite our endeavours to seek earlier discussions prior to the appointment with the Police Medical Officer in March the Force failed to initiate any discussions with us or with the member to discuss return to work options. Sergeant Sayer was examined again by the Assistant Police Medical Officer on 26 March 2003, and on 28 March 2003 the PMO wrote to Sergeant Sayer stated that he - - -

PN26

THE COMMISSIONER: Before you go onto that point, Ms Kepert, so you sought on 26 February to initiate some discussions - - -

PN27

MS KEPERT: Yes.

PN28

THE COMMISSIONER: - - - about a return to work plan. Is that so?

PN29

MS KEPERT: That is correct, Commissioner.

PN30

THE COMMISSIONER: With Ms - and perhaps the individuals don't matter so much, but Ms Taylor.

PN31

MS KEPERT: That is right.

PN32

THE COMMISSIONER: Who is the intensive case management and injury person.

PN33

MS KEPERT: That is right.

PN34

THE COMMISSIONER: And what did she say? She said "No, we won't do that." How was their disinclination to treat with you reflected? Did they just say, "No, we don't want to do it"?

PN35

MS KEPERT: It was just left. It was just let lie. She didn't say yes or no. She just - it was just left, and what occurred from then on is I made a number of phone calls and it was - the matter was passed from one individual to the other and it became quite difficult to navigate who was in fact dealing with the matter. So there were a number of players involved, including Lisa Taylor, including the Region 4 injury management consultant, a man by the name of Tony Deremus, and that was subsequently subcontracted out to Alyssa Jackson, who represents a consultancy that deals with these return to work plans. So it was - I thought it was quite a - it became quite a mess in terms of it was very difficult to find out who actually had ownership of dealing with this matter.

PN36

THE COMMISSIONER: And so you dropped off, did you? The way you would have me understand your submission is that there was this sort of obfuscation, this cloud, smokescreen or uncertainty, and eventually you have just sort of flopped off, did you?

PN37

MS KEPERT: No. We didn't drop off. We continued to try to find who was responsible and to talk to people. We also raised it on a number of occasions at the regular Region 4 consultative forum with the Assistant Commissioner, Keiran Walsh, and for quite some period there was - we felt that they were delaying making a decision. We wrote a number of letters, which is reflected in these documents. I think there is letters. Tab 7 is a letter on 9 July 2003. There is a letter, tab 5 on 8 September 2003. There was earlier correspondence which I haven't - there is actually quite a significant amount of correspondence, but I thought that the file might be too big for the Commission if I - - -

PN38

THE COMMISSIONER: A bit daunting for me. All right.

PN39

MS KEPERT: A bit daunting. But - and also, as I mentioned, we did raise it at the regular Region 3 - - -

PN40

THE COMMISSIONER: All right. I understand. Thank you.

PN41

MS KEPERT: The Region 4.

PN42

THE COMMISSIONER: But in any event, April came and went.

PN43

MS KEPERT: That is correct, and so what we did because of that, because of the impending expiration of 104 weeks, is that we, I suppose as a prudent measure, suggested that Sergeant Sayer initiate an application with ESSS for a temporary disability pension, because there had been no decision at that stage from the PMO. One of the options available to the PMO is to ill-health retire the member, and of course, once you have been ill-health retired that option of the pension ceases to exist, so we would do that as a matter of course. But as we indicated in various phone calls and correspondence and meetings, it was Sergeant Sayer's - always Sergeant Sayer's intention to return to work.

PN44

Again, the other advice we provided to Sergeant Sayer is because the gap was looming and he could, as a stopgap measure, apply for recreation leave so that he had an income. Now, I guess I would just like to re-state we believe the Force was extremely slow to act on both the advice of the psychiatrist, Sergeant Sayer's treating doctors, and also finally the Police Medical Officer, in terms of initiating a return to work plan for Sergeant Sayer, and I just draw your attention to the relevant dates provided in the outline of argument to the Commission. That indicates some of the steps that were taken by us, but also just some of the relevant dates to this matter.

PN45

Again, I would say that Sergeant Sayer was forced to fund the gap in his income by using recreation leave until his eventual return to work on 28 July 2003, and the Association is seeking that this recreation leave be re-credited to Sergeant Sayer, as the delay in his return to work was caused by the mismanagement of this case by the Force. I think I might leave it there, Commissioner.

PN46

THE COMMISSIONER: Yes. Mr Walsh seems to say that the tide swings both ways, doesn't he? In his document 6 he speaks about an unwillingness or a disinclination on the part of Sergeant Sayer to deal with - to meet with Ms Jackson. Do you say that is true, Mr Kepert?

PN47

MS KEPERT: No, I wouldn't, Commissioner. I am aware that on one occasion Ms Jackson sought an appointment to see Sergeant Sayer and he was unavailable on the day that was requested due to a medical appointment, which is obviously a legitimate reason.

PN48

THE COMMISSIONER: So that is - the effect sought - - -

PN49

MS KEPERT: It is a misrepresentation.

PN50

THE COMMISSIONER: All right.

PN51

MS KEPERT: But, regardless of that, I think that was some two months after the PMO declared Sergeant Sayer medically fit. So in any event it is another demonstration of how slow the Victoria Police were to act.

PN52

THE COMMISSIONER: Because Assistant Commissioner Walsh, in quoting Acting Commander Bull's passage at tab 6, Ms Kepert - - -

PN53

MS KEPERT: Yes.

PN54

THE COMMISSIONER: - - - indicates that - well, he takes the point from - that on 10 April Acting Commander Bull set out that as at - from 28 March to 5 April Sergeant Sayer did not have a capacity for work, and of course you say - the problem really stems, does it not, from the fact that it is asserted that he did have a capacity for work and that 104 weeks had expired. That triggers the problem, doesn't it?

PN55

MS KEPERT: Well, there was a dispute in the medical evidence at that point, so - and Cambridge Insurers were - well, one of the reasons that they provided for terminating his payments was that he had a current capacity for work, and that decision they took, prior to his appointment on 26 March 2003. So what we would ordinarily do is if there is a dispute in the medical evidence we would have a discussion with the injury management consultant and - particularly given that there was clearly indicated the gap, that Sergeant Sayer was on the improve, that it would have been prudent to have initiated those discussions before there was this urgent situation where his income dried up.

PN56

THE COMMISSIONER: Mr Walsh seems to rely on, or does rely on the fact that it wasn't until May that the Police Medical Officer determined that there was a capacity for work.

PN57

MS KEPERT: That is one thing that I would indicate, is there were a number of incorrect dates in the correspondence between the parties, and 26 May in fact should read 26 March, which is when - - -

PN58

THE COMMISSIONER: Well that is hopeless then, isn't it?

PN59

MS KEPERT: Yes.

PN60

THE COMMISSIONER: Because you just - goodness knows, you just flounder around. All right. Well, if that is so, the inevitable slip. Who has ever handed up a submission, or an exhibit that doesn't contain a slip? But it is very regrettable if that is so, because it means that for someone trying to follow the account, it makes it rather difficult. But all right. Thank you, Ms Kepert. I understand your submission.

PN61

MS KEPERT: Thank you.

PN62

THE COMMISSIONER: Yes, Mr Wright?

PN63

MR WRIGHT: Thank you, Commissioner. I do have one submission to supply.

PN64

THE COMMISSIONER: Thank you.

PN65

MR WRIGHT: A copy was recently provided to Ms Kepert as well, sir.

PN66

THE COMMISSIONER: Thank you.

EXHIBIT #W1 DOCUMENT

PN67

MR WRIGHT: Thank you, Commissioner. Commissioner, I will start off with just stating that most of the evidence supplied by Ms Kepert and the information that she has supplied is not refuted by the Force. There is a number of issues that we will go to which explain some of the gaps, and we will go on from there and attempt to resolve the matter, I guess. With the first portion of our submission, on the front page, is correspondence dated 26 February 2003 from the Emergency Services Superannuation Scheme, which advises Victoria Police that Sergeant Sayer has in fact submitted an application for a disability benefit.

PN68

The importance of that I will get to as we go through our submission, Commissioner. The second page of the submission is a number of pages from Cambridge, which form the part of the Police Association submission. Again, there is no disputing what the basis of the correspondence from Cambridge is stating, the one in particular that the 104 weeks was about to expire, and also there had been some information supplied to Cambridge that there was a capacity for Sergeant Sayer to return to work in some capacity, as on a graduated return to work program.

PN69

That I think takes about five pages, Commissioner. But then, following on from that we have a number of WorkCover certificates which have been received by the Force. These certificates for Gary Sayer were supplied by his treating doctor, Geoffrey Richards of Burwood, and the capacity for work portion of each of those certificates, towards the fifth box down I think it might be:

PN70

Unfit for any work duties.

PN71

And as you can see, those certificates run concurrently from 16 October onwards, which is around about the time of one of the PMO appointments where he was deemed to be not fit to return for any duties by the PMO, and as you can see by this certificates from the treating doctor, Geoff Richards, all the way through until 5 April in 2003 the member has been declared as being totally unfit for any work duties. So what we have is, in the case here, one doctor, being the psychiatrist, saying that he may be fit to return to some graduated duties.

PN72

The report to Cambridge from Dr Richards says also that he may be fit to return to some duties. But reports being supplied to Victoria Police by the treating doctor, and a report from the PMO saying that he is not fit to return to any duty whatsoever. So we have a bit of a problem there, that to initiate a return to work program his treating doctor has to clear him as being fit to return to duty. Now, he hasn't supplied that to Victoria Police.

PN73

THE COMMISSIONER: Until April?

PN74

MR WRIGHT: Until April.

PN75

THE COMMISSIONER: Well, yes. Yes, early in April.

PN76

MR WRIGHT: Yes.

PN77

THE COMMISSIONER: Yes.

PN78

MR WRIGHT: Now, in February of 2003 contact was made by Ms Kepert to Lisa Taylor, and following on from that Lisa Taylor made contact with Cambridge, as they are responsible for the maintenance of the WorkCover claim as the service provider to Victoria Police. Now, it was from Lisa Taylor's instigation with Cambridge that the correspondence in March was initiated by Cambridge, which went to Sergeant Sayer and a copy was supplied to Victoria Police stating that in some reports there was some capacity for Sergeant Sayer to return to duty. At about that time in March, or shortly after that time of the receipt of the letter from Cambridge, the member was due to attend with the Police Medical Officer, and that appointment had been made in January and it was due to occur on 26 March, and did actually take place on 26 March.

PN79

So some three weeks after the Cambridge report which had advice from two doctors, one of the doctors supplied conflicting information to both Cambridge and Victoria Police. So naturally enough there is going to be some confusion as to whether this member can in fact return to duty, based on the certificates that we are receiving, and bearing in mind also that whilst he has a valid WorkCover claim and WorkCover certificates he cannot return to work, until such time as Victoria Police receives in writing from his treating doctor saying the member is fit to return to duty. Now, none of that had occurred at the time that - - -

PN80

THE COMMISSIONER: Well, in the event of conflict, then it can go to - I am relying on my faulty memory from previous days, Mr Wright.

PN81

MR WRIGHT: Yes.

PN82

THE COMMISSIONER: That under the Resource Mobility - whatever it is - - -

PN83

MR WRIGHT: Yes.

PN84

THE COMMISSIONER: I will be reminded of it, that then the step is to go to a specialist. Isn't that so?

PN85

MR WRIGHT: Arrangements can be made for an independent arbitrator to be appointed. Now part of the problem - or an independent doctor.

PN86

THE COMMISSIONER: Yes.

PN87

MR WRIGHT: To have a look at that.

PN88

THE COMMISSIONER: Yes.

PN89

MR WRIGHT: But part of the problem is that we have got one doctor saying two things to two different people. To one lot he is saying that, yes, he can return to some duty. But he is still supplying certificates to Victoria Police saying that, no, he can't return to duty. So on the information from Cambridge, and with the PMOs appointment pending, the member attended the Police Medical Officer on 26 March, and on 28 March a report was submitted to Victoria Police saying he is fit to return to some operational duty, and I think that is in the Police Association's exhibit at folio 3, in the second page in, 28 March. There is a report from the Police Medical Officer which states that he is fit to return in a non-operational capacity on a graduated basis, eg, two days/four mornings per week. So on a part-time basis of a couple of days per week.

PN90

THE COMMISSIONER: Yes.

PN91

MR WRIGHT: Okay. Then following the medical certificates in the Victoria Police submission you will see on 31 March correspondence from the Police Association, which is requesting that at the expiration of the WorkCover claim, which is terminated on 3 April, that the Police Association requests Victoria Police to put the member on to make-up pay provisions.

PN92

THE COMMISSIONER: That is 31 March, is it?

PN93

MR WRIGHT: That is correct, Commissioner. It is just at the - - -

PN94

THE COMMISSIONER: Where is that?

PN95

MR WRIGHT: It is part of my submission

PN96

THE COMMISSIONER: I am sorry.

PN97

MR WRIGHT: After the medical certificates. Sorry about that, Commissioner.

PN98

THE COMMISSIONER: No, no. Yes. All right. Yes, thank you, Mr Wright.

PN99

MR WRIGHT: Okay, Commissioner. So the Police Association at the time sought Victoria Police to provide make-up pay rather than the member being put on to recreation leave. Now, in the response from Victoria Police on 10 April, which Mr Walsh I think referred to earlier - there is a copy of that following on from - - -

PN100

THE COMMISSIONER: What does make-up pay mean? What did you understand Mr Kent to be asking for?

PN101

MR WRIGHT: For Victoria Police to provide full payment to the member without deduction of any form of leave.

PN102

THE COMMISSIONER: Just to make the pay up?

PN103

MR WRIGHT: Yes.

PN104

THE COMMISSIONER: But there is no such thing as make-up pay, is there? I am just - - -

PN105

MR WRIGHT: Under the provisions of the mobility agreement - - -

PN106

THE COMMISSIONER: Yes.

PN107

MR WRIGHT: - - - there is no actual provision for make-up pay to be provided. Now it can either be at the expiration of the claim the member can either be returned to duty, WorkCover can continue if the Chief Commissioner approves.

PN108

THE COMMISSIONER: Yes.

PN109

MR WRIGHT: Or the member will be ill-health retired. Now I believe, and I am sort of second guessing, I guess, and Ms Kepert can respond to this in time, I would believe that what the Association were seeking there was for Victoria Police to continue the WorkCover payments.

PN110

THE COMMISSIONER: Yes. That is what you understood that phrase to mean.

PN111

MR WRIGHT: That is our understanding of that.

PN112

THE COMMISSIONER: All right. Thank you. Yes.

PN113

MR WRIGHT: Now, the Association in that letter points out that they believe the Force have been tardy in their application, or their treatment of Mr Sayer. Now, as we pointed out there is a number of issues there that have caused the issue to drag on from the January advice that the Police Association had received, and the time that the member had the PMOs appointment and the WorkCover certificates continuing to be supplied. So there is a number of things there that had tied the Force's hands a little bit, especially with regards to returning the member to work, in that he had not been cleared officially to return to work.

PN114

THE COMMISSIONER: Yes. Yes, I don't know - all right. Well, I understand what you are putting. It strikes me that what Mr Kent is referring to there, and really what Ms Kepert was referring to, and perhaps it is what underpins her submissions, there is no doubt that there are inconsistencies and loose ends and there are problems. Complex matters are always complex. Complexity attends them, doesn't it, by its very nature. But that isn't quite what Ms Kepert is - Ms Kepert seems to be, and I think what Mr Kent is alluding to, is that there is the need for the issue to be taken hold of, and only then can there be clarity. It requires you to get a little bit closer to the fine print before you can take hold of it.

PN115

MR WRIGHT: Yes. That is correct, Commissioner. But there is also, in page 1 of my submission - - -

PN116

THE COMMISSIONER: Yes.

PN117

MR WRIGHT: - - - is the correspondence from ESSS, at which time Sergeant Sayer applied to receive a disability benefit.

PN118

THE COMMISSIONER: Yes.

PN119

MR WRIGHT: Now under that provision also, Victoria Police cannot take any action to return him to work, because if the medical advice that ESSS receives suggests that he should be in receipt of disability benefit, the member will be ill-health retired.

PN120

THE COMMISSIONER: Yes.

PN121

MR WRIGHT: Yes. So he would in fact be put on a temporary pension.

PN122

THE COMMISSIONER: Yes.

PN123

MR WRIGHT: For a period of 12 months I believe would be the case in the first instance, at which time he would be reviewed again to determine his fitness to return to duty.

PN124

THE COMMISSIONER: Yes.

PN125

MR WRIGHT: So there is a number of things that prevent a return to work program being initiated any earlier than what has been sought so far.

PN126

THE COMMISSIONER: All right. Yes, I understand what you are putting. Thank you, Mr Wright.

PN127

MR WRIGHT: Okay. So on 10 April Victoria Police responded to the correspondence from the Police Association, just pointing out a number of those issues. It is pointed out to the Police Association at that time that the member still had current WorkCover certificates. In paragraph 3 I think it is, makes mention there that:

PN128

Most recent medical certificate supplied to Victoria Police by his treater is from 28 March to 5 April and certifies that Sergeant Sayer does not have a capacity for work.

PN129

THE COMMISSIONER: Yes.

PN130

MR WRIGHT: It further states that:

PN131

...the independent medical assessment completed during the life of Sergeant Sayer's WorkCover claim until most recent examinations completed in February 2003, a clearance for participation in work has not been provided.

PN132

So whilst these doctors are suggesting that there may be some capacity to return on a graduated basis, none of them have supplied anything that says the member is able to return to work. There is no clearance provided to say that he can return to work. Then the correspondence just makes brief mention there of Ms Taylor referring the matter to Cambridge to obtain information from Cambridge, which was forthcoming of course in March of 2003, and there is mention there of the PMOs report, which we have briefly touched on as well, suggesting two days or four mornings per week.

PN133

[10.30am]

PN134

And then finally the mention of paragraph 78, which is:

PN135

Employees unfit to return to any approved duties due to work related illness or injury who are about to exhaust the maximum period of workers compensation leave, the 104 weeks, under provisions of the Mobility Agreement, the collective employment agreement, will be considered on a case by case basis by the Chief Commissioner who may approve the WorkCover continuing or discharge the employee on medical grounds.

PN136

Now at that time there was also an application for a disability benefit being made by the member.

PN137

So the force at that time had made a decision that they weren't going to continue the workers compensation claim and suggested that the member needed to make some arrangement to ensure he was in receipt of some form of payment, particularly whilst there was a valid claim for a disability benefit. At that time also the force did mention that they were happy to discuss anything. Now there was some confusion here, and the force does have to take responsibility for a lot of this, however at that time we did mention that we were willing to discuss this, and some confusion occurred in that we did invite the association to make contact with us.

PN138

Now that never occurred. However, I don't want to put that back on the association to say it is all their fault. There was an obligation on Victoria Police, but there was some confusion caused by the final paragraphs of this correspondence.

PN139

THE COMMISSIONER: Really, and that is the sentence commencing:

PN140

Should you have any further queries...

PN141

MR WRIGHT: That is correct, yes.

PN142

THE COMMISSIONER: So you think there is something unclear about that or - - -

PN143

MR WRIGHT: Well, from that implication, and as Ms Kepert has suggested previously, the TPA do quite often have a great deal of involvement in return to work programs and WorkCover claims etcetera. Now that was an invitation for that to extend. However, as I say, I don't want to put that on the association because as the employer we do still have the obligation at that time to continue on.

PN144

THE COMMISSIONER: All right.

PN145

MR WRIGHT: So just following on from that correspondence is a brief copy of paragraph 78, which just explains what the obligations are, where the WorkCover claims - - -

PN146

THE COMMISSIONER: And was that done? Was paragraph 78 carried out?

PN147

MR WRIGHT: At that time the Chief Commissioner can either elect to continue the workers compensation or have the member discharged. Now with the continuation of the WorkCover claim we elected not to do that and there was a disability benefit claim valid at that time. So if the claim had been - - -

PN148

THE COMMISSIONER: You elected not to do what? Well, what is it you - - -

PN149

MR WRIGHT: For the member to be ill health retired in accordance with paragraph 2. Now if that had have been successful, the discharge would have been effective from the date or backdated to the date that the member had expired with his WorkCover claim.

PN150

THE COMMISSIONER: Yes, but that wasn't done.

PN151

MR WRIGHT: No, that wasn't done.

PN152

THE COMMISSIONER: So option 1 occurred, did it?

PN153

MR WRIGHT: Option 1 is that the Chief Commissioner can either approve workers compensation or discharge the employee on medical grounds. Now there was an application for a discharge made, so because that claim was made the Chief Commissioner elected not to continue workers compensation on the basis that there was a potential for the member to be discharged on medical grounds.

PN154

THE COMMISSIONER: And is that because of the application for the temporary disability - - -

PN155

MR WRIGHT: That is correct.

PN156

THE COMMISSIONER: - - - though the emergency services scheme?

PN157

MR WRIGHT: That is correct; initiated by the employee, by Sergeant Sayer.

PN158

THE COMMISSIONER: Yes, all right. You read all that into 78?

PN159

MR WRIGHT: Well, basically that is what has been applied with 78 before, in particular I think it was with the Jones matter.

PN160

THE COMMISSIONER: Yes, well it has all been the subject of - the tractor has ploughed up this field many times.

PN161

MR WRIGHT: Much discussion previously.

PN162

THE COMMISSIONER: It is sand not the burden soil. All right, thank you, Mr Wright, now what else do you want to say?

PN163

MR WRIGHT: Okay. Now just continuing on with our submission. On 28 April Victoria Police received some correspondence from ESSS, the Emergency Services Superannuation Scheme, that Mr Sayer had verbally advised them that he wished to withdraw his application. Now it is from this period on 28 April that action can be taken to instigate a return to work program. He has clearance from the PMA, his WorkCover certificates are no longer being supplied to state that he is unfit for duty, and he no longer has a claim submitted with ESSS for a disability benefit. So from 28 April action should have been taken to instigate some form of return to work.

PN164

THE COMMISSIONER: All right. When did that conference start, Mr Wright?

PN165

MR WRIGHT: Okay. This is where we get into a little bit of trouble. Commissioner. Unfortunately, for whatever reason, contact between Region 4 - pardon me - Region 4, the WorkCover or Mobility Services Division of HRD, and the Police Association and the member himself was not made. So somehow along the lines a gap has occurred and the member has fallen through there. Now contact was made with Sergeant Sayer by Alyssa Jackson, who is the return to work consultant, on 23 June.

PN166

And that is the first instance of contact between 28 April and that date. So unfortunately, for whatever reason, I can't explain why or how that happened, there has been an anomaly, a gap, and Victoria Police does have to take some responsibility for what has occurred there, and we are happy to do so. Between 28 April and 23 June, so a period there of around about eight weeks. I will point out also though that whilst we do take the majority of responsibility, there is also some obligation on the employee knowing that he wants to return to work, and the association knowing that there are clearances for him to return to work, but something else could have occurred, there could have been discussions taking place, a reminder, a prompt, but none of that took place. And as I say, as the employer we do have to take the majority of that responsibility.

PN167

THE COMMISSIONER: Yes.

PN168

MR WRIGHT: Now on the final page of my submission there is an e-mail from Alyssa Jackson, who is the return to work consultant, to Tony Deremus, who is the Region 4 WorkCover Rehabilitation Officer. Now the content of Alyssa's e-mail is just the action that had taken place with regards to arranging a return to work plan to be initiated for Sergeant Sayer. Now as you can see, there are numerous attempts to have him to meet up and to initiate return to work discussions with the member and his place of employment, being Glen Waverley Police Station, and his local inspector, or regional inspector.

PN169

That could not occur for a number of reasons. Now the first reason, as Ms Kepert pointed out, Sergeant Sayer had a medical appointment in the first instance that he couldn't meet with Alyssa Jackson, however between then - Alyssa Jackson is stating that he could not attend her between the date of his medical appointment and 2 July at her office.

PN170

THE COMMISSIONER: So what are those dates? What is the gap that you are referring to there?

PN171

MR WRIGHT: So that is 23 June to 2 July. And on 2 July the meeting took place and the member, Sergeant Sayer, gave authority for Alyssa Jackson to speak with his GP and his psychologist to discuss the situation and make arrangements for what type of work could Sergeant Sayer return to. So obviously a return to work plan needs the involvement of those people. Now contact can't be made by the return to work consultant until they have authority of the member concerned. Now following on from that meeting, Alyssa made suggestions that a follow up meeting be made with his local area, his management team, so that a return to work program can be initiated and put forward and implemented.

PN172

Now at that time, Sergeant Sayer asked her to postpone it for a couple of weeks because he wanted to go away and visit his parents. Okay, so he has asked for that to be deferred, not Ms Jackson as previously may have been implied. Now she gave the okay because there had been some delay in the process by Victoria Police, so she was willing to grant him some grace in that respect. Now she contacted - - -

PN173

THE COMMISSIONER: Where do his parents live?

PN174

MR WRIGHT: Regional Victoria, exactly where I am not sure.

PN175

THE COMMISSIONER: All right.

PN176

MR WRIGHT: So the earliest possible meeting that could be arranged with Sergeant Sayer and his regional inspector and his supervisor, the Senior Sergeant at the station, and Tony Deremus, was on 18 July. Now following on from that meeting on 18 July, that plan was implemented and the member returned to duty on 28 July 2003. Now the period where we believe that Victoria Police may have some responsibility, and is willing to discuss reimbursement of recreation leave entitlements, occurs between the period of 28 April and 23 June.

PN177

Now there is some clear tardiness from Victoria Police in that particular time frame. However, it also needs to be pointed out that the member's return to work program only initiated, or only enabled him to return to work for four half days per week, so a total of two days per week in working hours, so the balance of those working weeks, the member still has to make up some form of leave entitlement to ensure he gets full pay. Now the only leave available to him at that time is for him to take the balance of that time as recreation leave.

PN178

So at best Victoria Police will be willing to reimburse two days per week for the duration of that period of time. I will leave it at that, Commissioner, and - - -

PN179

THE COMMISSIONER: All right, Mr Wright.

PN180

MR WRIGHT: - - - allow Ms Kepert to have her response. If the Commission pleases.

PN181

THE COMMISSIONER: Yes, thank you. Now, Ms Kepert, do you want to exercise your response for the moment, or can we have a conference now?

PN182

MR KEPERT: I am happy to go into conference, Commissioner.

PN183

THE COMMISSIONER: All right. All right, thank you, we will go off the record.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #K1 SERIES OF DOCUMENTS PN7
EXHIBIT #W1 DOCUMENT PN67