C2005/4862, Transcript of Proceedings [2005] AIRCTrans 2212 (25 October 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13131-1

COMMISSIONER FOGGO

C2005/4862

MS ANGELIQUE WESTON
AND
BARRY BECKETT CHILDREN’S CENTRE
s.99 - Notification of an industrial dispute
(C2005/4862)

MELBOURNE

11.32AM, TUESDAY, 11 OCTOBER 2005

PN1

MS K WILSON: I seek leave to appear on behalf of the application. With me is MS N LORD.

PN2

MS M ROBINSON: I am from VECCI and appear on behalf of the respondents to this application.

PN3

THE COMMISSIONER: Yes, thank you. Ms Wilson, is there a certified agreement which underpins the employment relationship?

PN4

MS WILSON: I'm not aware that there is, as far as the award was for Children's Services Victoria Award 2005.

PN5

THE COMMISSIONER: Yes. Thank you.

PN6

MS WILSON: The applicant, Angelique Weston, was employed at Barry Beckett Children's Centre in Coburg in October 1992. The childcare centre is a community based organisation sponsored by the council. She was at first employed as a childcare assistant and then studied and did her mother craft nursing so she's now a qualified mother craft nurse. She worked full-time at that stage. In 1996, she was appointed as second in charge and then in 2001 she was employed as a full-time coordinator. In her position, she - in that position as a full-time coordinator, she basically did administration work on a day to day running of the childcare centre. She did do some actual hands-on looking after of the children and filling in. However the bulk of her work was administrative work. She did a lot of overtime, attending meetings out of hours and those sort of duties. In September 2003, she - - -

PN7

THE COMMISSIONER: Could you slow down just a little?

PN8

MS WILSON: Sorry.

PN9

THE COMMISSIONER: Thank you.

PN10

MS WILSON: In September 2003, she became unwell, however didn't have any time off. Then in 2004 November, she became unwell again and was diagnosed with multiple sclerosis. From November last year until June, she had that period of time off on sick leave under the care of Dr Leslie Sedal who's the consultant neurologist at St Vincent's Hospital. She has also the support of the MS Society in relation to ongoing support dealing with MS and the implications of having a chronic illness. In June, her neurologist, Dr Sedal, stated that she was fit to return to work on a part-time basis doing office work but not at that stage fit to return to hands-on childcare work. She then approached the employer to return to work on that basis with a view to working over the next few weeks and then being able to return to full-time work and that was in consultation with her specialist.

PN11

On the 14th of June in response to her request for a return to work, she received a letter from the president, Karen Butera, declining her request to return to work part-time. If I could tender that letter.

EXHIBIT #W1 LETTER FROM MS WESTON FROM
MS KAREN BUTERA DATED 14/06/2005

PN12

MS WILSON: And with that letter was a job description if I could also tender that.

EXHIBIT #W2 JOB DESCRIPTION

PN13

MS WILSON: The job description or position description is one that the applicant has not seen before. It certainly has got some of the duties that she carried out but not the duties that - you know, it's a totally new position description. A meeting was arranged to discuss the application or you know, to try and return to work and that meeting took place on 4 August. During the meeting, the committee of - the president Karen Butera was present, along with another number of other people and also a representative from the council who was there as an observer. It was a very hostile meeting. The committee were not prepared to discuss the request to return to work on a part-time basis and said that they needed to have a meeting with the full committee to make a further decision. So a further - it was decided that they would have a decision by the
15 August because they needed seven days to call a committee together.

PN14

At the meeting on the 15th of August, the applicant was handed another letter which if I could tender.

EXHIBIT #W3 LETTER FOR MS WESTON FROM MS KAREN BUTERA DATED 12/08/2005

PN15

MS WILSON: Which basically said that she was unable to return to work on a part-time basis and that, however when she was able and fit to return to full-time work, she could then return to work. It is of concern that the person who is replacing the applicant while she is on extended sick leave is working part-time, is not participating on hands-on childcare work, and just looking at the duties that the applicant has carried out which have been on the whole - in that period definitely from 2001 until November 2004 - were on the whole administrative duties such as rostering, the budget, supervision of staff, attendance at meetings with council and parent meetings after work, dealing with timesheets, unpaid bills, a whole range of administrative work.

PN16

The request was that Angelique return to work on Monday, Wednesday, Friday from eight til one and then build up those hours so that she would be returning, and that was in full support with her medical practitioner.

PN17

THE COMMISSIONER: And for what period of time did you say? For several weeks?

PN18

MS WILSON: For several weeks.

PN19

THE COMMISSIONER: Yes.

PN20

MS WILSON: For several weeks and then build it up. Because of the situation and the stress that was caused through not being able to return to work. Angelique's been there for 13 years. She has had a relapse of MS and there is - certainly we don't have the medical reports here. However, Angelique has an appointment with Dr Sedal on Friday so they can be provided, that it is in relation to the stress that she was under. She was certainly fit to return to work at the time that she requested to return to work on a part-time basis and it is her belief that she is fit to return to work now, having recovered from that relapse.

PN21

She basically, at this stage, wants to return to work part-time and building up to full-time again, and we are also requesting that because she was able to return to work and she wasn't allowed to return to work that there be a reinstatement of her sick leave. She's now being paid her time as annual leave which I believe that's due to run out within this week and then she'd have to access her long service leave. So what we're requesting is that she be paid that as those part-time hours as her regular hours and the rest of the time as sick leave, just to have those reinstated, and that she be reinstated to her position there as part-time with a view to going full-time.

PN22

THE COMMISSIONER: Yes. Thank you.

PN23

MS ROBINSON: Commissioner, we have a letter from Dr Leslie Sedal. That's the only thing that we have from the applicant's treating doctors. It states clearly that the applicant can return to three mornings a week in an administrative capacity only. There is nothing to indicate whatsoever that the applicant could return to work for a couple of weeks and then return full-time to her previous duties.

EXHIBIT #R1 LETTER FROM DR LESLIE SEDAL DATED 09/06/2005

PN24

MS ROBINSON: Commissioner, we agree with some of the summary presented to you in that the applicant was employed with Barry Beckett Centre for 13 years, starting in the capacity of an assistant childcare worker and studying and working her way up to the position of coordinator in 2001. She was diagnosed with what we believe - what we've been told to be a remission relapse in multiple sclerosis in early November 2004 and has been on sick leave until quite recently.

PN25

Since then, she's also now used up her annual leave and at present she is on unpaid leave. In her absence, a long term temporary replacement, Ms Tina Roberts, was initially appointed by the centre. Thereafter, she resigned and a part-time staff member has been filling that position as have relief agency staff and most recently, Moreland City Council is providing a part-time coordinator at their cost due to the financial predicament of the Barry Beckett Centre.

PN26

I'd like to also hand up, Commissioner, a letter from the council which addresses the financial predicament of the centre because we believe that it's quite pertinent in the circumstances.

EXHIBIT #R2 LETTER FROM MORELAND CITY COUNCIL DATED 14/09/2005

PN27

MS ROBINSON: The centre, Commissioner, has recently experienced a period of major financial difficulty and, for a short period, was potentially trading insolvent. With the recently acquired assistance of Moreland City Council, the viability of the centre is improving. However, my instructions are that the cash flow still remains a big concern.

PN28

As far as Ms Weston's employment is concerned, the president of the newly formed committee instructed me that they have written to Ms Weston on 30 May shortly after being appointed as the president and after the new committee was appointed, they had contacted Ms Weston in an endeavour to ascertain what her prospects of return would be. They received a letter which I have already submitted to her, Commissioner, from Leslie Sedal to say that she could only come back three mornings for office duties only. And then as the applicant's representatives have pointed out, there have been two meetings with the committee and the applicant and her representatives in an endeavour to come to some sort of resolution, and unfortunately the resolution - we're here. So the situation remains unaltered.

PN29

The position of the crèche - and it's by no means intractable - is that Ms Weston's job was that of a coordinator of the centre. The duties of the coordinator entail 20 contact hours per week with the children. My instructions are that it is absolutely crucial that child contact - that the coordinator has contact with the children, primarily to relieve staff for rest breaks, tea breaks or any illnesses that may eventuate with staff members. So the coordinator is there to cover that. I mean, at present I'm instructed that one of the staff members has had a car accident so the coordinator is very hands-on with the children. Therefore it is - the inherent requirement, as the centre sees it, cannot be fulfilled by Ms Weston because of her illness.

PN30

They have considered creating another position for her, a position of an administrator. However, their financial position is that they have unfortunately dismissed that at this point in time as a possibility. Other issues, Commissioner, is that of health and safety and possible WorkCover claims down the track. The representatives of the applicant are already putting forward to you that the stress caused by the committee has resulted in a relapse of the applicant. Naturally this is a great concern for the centre as far as potential WorkCover claims.

PN31

We have read some literature on MS and the type of illness or the type of MS that the applicant has been diagnosed and it does involve, from what we've read, a flair up of symptoms followed by periods of recovery. The frequency and severity of symptoms vary, they can last for days, weeks or months and occur spontaneously. So it's a little bit disheartening to hear that the blame is put on the committee and the crèche where in fact, what it would appear the nature of the illness would cause such relapses. There's nothing at this point, Commissioner.

PN32

THE COMMISSIONER: Thank you. Is there anything else, Ms Wilson?

PN33

MS WILSON: Not as such. Just in regards to the remitting relapse in MS, people who are diagnosed with that, it's basically, yes you have an episode and then you can go - you return to basically how you were prior to that state and you can carry out everything that you're doing. You can go for years without having another relapse of it, it is not the type of MS where it is a gradual decline of condition. It is one that somebody with this type of MS can carry out their normal functions as such of their job but may at times have a relapse and then recover. And that's basically what - in the applicant's case, she had recovered, was fit to return to work but the doctor wanted to ease her into it because it had been basically six months since she had last worked and he wanted her to ease into it.

PN34

It's certainly, you know, in regards to the viability of the centre, the financial situation, this is - obviously it's of concern but however there is a duty to an employee to assist them. Angelique is able to carry out the inherent requirements of the job. She was - the bulk of the work that she was doing was administrative. She's asking, at this stage, to return to work in a five hour day for three days a week. It was stated that there was 20 hours contact with the children. Well, again, that could be done around those hours if that is such an issue. Certainly, for Angelique, she needs to be able to return to work. It's difficult enough having a diagnosis of MS without then also having - basically losing a job because of something that's beyond her control.

PN35

THE COMMISSIONER: Yes, thank you. It could be useful, I think, to go into conciliation to discuss some of these issues. Who else do we have in court?

PN36

MS WILSON: We have Mr and Mrs Weston. And Col Price is the social worker from the MS Society.

PN37

THE COMMISSIONER: Yes.

PN38

MS ROBINSON: Yes, Commissioner. We have vice president Robin Boardman of the committee and Andy Stewart who is the assistant treasurer.

PN39

THE COMMISSIONER: Yes, thank you.

<NO FURTHER PROCEEDINGS RECORDED

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #W1 LETTER FROM MS WESTON FROM
MS KAREN BUTERA DATED 14/06/2005 PN11
EXHIBIT #W2 JOB DESCRIPTION PN12
EXHIBIT #W3 LETTER FOR MS WESTON FROM MS KAREN BUTERA DATED 12/08/2005 PN14
EXHIBIT #R1 LETTER FROM DR LESLIE SEDAL DATED 09/06/2005 PN23
EXHIBIT #R2 LETTER FROM MORELAND CITY COUNCIL DATED 14/09/2005 PN26