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Australian Industrial Relations Commission Transcripts |
1800 534 258
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 10351
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
C2005/1545
s.127(2) - appln to stop or prevent industrial action
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
and
Clipsal Australia Pty Ltd
(C2005/1545)
ADELAIDE
2.04PM, THURSDAY, 03 FEBRUARY 2005
PN1
MS J SMITH: With me is state organiser and the current employee of Clipsal, MS L O'MALLEY.
PN2
MS J McINTYRE: Appearing with me is MR R BAINES, manager of Clipsal and MS N ADES also of Clipsal.
PN3
THE SENIOR DEPUTY PRESIDENT: Now, Ms McIntyre, do you need to seek leave?
PN4
MS McINTYRE: Sir, I haven't actually considered that.
PN5
THE SENIOR DEPUTY PRESIDENT: Do you have a copy of the Act there?
PN6
MS McINTYRE: Yes, I do have a copy of the Act, sir.
PN7
THE SENIOR DEPUTY PRESIDENT: I direct you to section 42.
PN8
MS McINTYRE: Yes sir. In those circumstances, I apply for leave to appear as counsel for the corporation under section 42(3).
PN9
THE SENIOR DEPUTY PRESIDENT: Thank you. Now, Ms Smith what is your position?
PN10
MS SMITH: No objection.
PN11
THE SENIOR DEPUTY PRESIDENT: No Objection? I grant that leave, Ms McIntyre.
PN12
MS McINTYRE: Thank you.
PN13
THE SENIOR DEPUTY PRESIDENT: Ms Smith, I have looked at the application in this matter. I need to say that in the normal course of events, the matter would have been listed before now, but I understand this is the first occasion when the parties have been available to have the matter heard.
PN14
MS SMITH: All of the parties sat together, yes, your Honour.
PN15
THE SENIOR DEPUTY PRESIDENT: Yes. All I know about the matter is that which is contained in the application, so I am in your hands.
PN16
MS SMITH: Yes, okay. Your Honour, the evidence will show that Liat O'Malley is employed at Clipsal Australia in Strathalbyn as a production worker. On 5 February 2004, Mrs O'Malley suffered an injury of tenosynovitis to both hands. She put in a claim for workers' compensation. This claim was initially rejected, however upon filing a notice of dispute, the claims agent QBE Mercantile Mutual varied their determination accepting the worker's claim. The reason given for the variation was:
PN17
The compensating authority relies on the medical evidence of Dr Tomlinson and the most recent prescribed medical certificate issued by Dr Mitchelmore.
PN18
The evidence will also show that the employer has taken illegal and unprotected industrial action against Mrs O'Malley. The employer's industrial action involves the restriction of Mrs O'Malley in the performance of her work where her employment is covered by the terms and conditions of an award and/or agreement.
PN19
The evidence will show that the employer conducted investigations. First there was an allegation that Mrs O'Malley had breached company policy and procedure, however the company was unable to indicate which breach of policy or procedure they suspected. Second, there was an allegation of WorkCover fraud. The evidence will show that the employer has not disputed the determination of the claims agent in the Workers' Compensation Tribunal which is the appropriate course to take should they disagree with the determination of the claims agent. The evidence will show that the employer responded by taking unlawful industrial action against our member by suspending her with pay. It is our submission this is a clear breach of the employer's contract of employment and by preventing her from performing her duties. This has resulted in her rehabilitation being delayed.
PN20
We seek an order that the employer cease industrial action forthwith and allow Mrs O'Malley to return to work in accordance with her prescribed medical certificates. If you wish, you may wish to hear from my friend before we call our witness evidence, your Honour.
PN21
THE SENIOR DEPUTY PRESIDENT: Ms Smith, can I just clarify a couple of issues first of all. Do you say that the industrial action that is happening, as I understand it now, is properly described as the suspension of the employee with pay?
PN22
MS SMITH: That is correct, your Honour.
PN23
THE SENIOR DEPUTY PRESIDENT: So you are not disputing the employer's capacity to conduct an investigation?
PN24
MS SMITH: No, this can be done while she is working, should they wish, however - - -
PN25
THE SENIOR DEPUTY PRESIDENT: I am just trying to establish what it is that you are saying is the industrial action.
PN26
MS SMITH: The preventing her from performing her duties.
PN27
THE SENIOR DEPUTY PRESIDENT: I see. And is the employee, in your view, suspended with pay or is the employee on workers' compensation?
PN28
MS SMITH: She is partially suspended with pay and partially in receipt of workers' compensation payments. She is certified fit to work for five hours a day, so the company would be paying that in lost wages and her remaining hours would be picked up by the claims agent, your Honour.
PN29
THE SENIOR DEPUTY PRESIDENT: I see. So that the order that you are seeking is an effected order that Clipsal allow the employee to work for five hours a day?
PN30
MS SMITH: Yes, in accordance with the prescribed medical certificates, whatever they may be at the time.
PN31
MS McINTYRE: Your Honour, perhaps if I might just interpolate, there is a small factual dispute here which may need to be cleared up by evidence - - -
PN32
THE SENIOR DEPUTY PRESIDENT: Well, if you can, Ms McIntyre, but I will give you your opportunity just in one moment.
PN33
MS McINTYRE: Yes your Honour, yes thank you, sir.
PN34
THE SENIOR DEPUTY PRESIDENT: Should I understand Ms Smith, that the order that you are seeking should apply straight away?
PN35
MS SMITH: Yes, your Honour.
PN36
THE SENIOR DEPUTY PRESIDENT: And if I ask you to look at section 127, should I understand that you are saying first of all, that refusal on the part of the employer to allow the employee to work for the five hours a day is industrial action?
PN37
MS SMITH: Yes sir, in accordance with the definition in section 4 of the Act.
PN38
THE SENIOR DEPUTY PRESIDENT: And should I further understand that you say that the work in question is covered or regulated by a certified agreement?
PN39
MS SMITH: Yes, your Honour.
PN40
THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, thank you Ms Smith. Ms McIntyre?
PN41
MS McINTYRE: Thank you, your Honour. The respondent objects to the orders sought and there are three, well perhaps two grounds for objection which are jurisdictional and the third goes to the exercise of the discretion.
PN42
The first point is that we submit that the action complained of is not industrial action. The second jurisdictional ground is that in the event that it is found that the action complained of is industrial action, we say that the Commission doesn't have jurisdiction to deal with it because it is not industrial action in relation to any of the matters set out in section 127. But if your Honour is disposed to find against us in relation to the jurisdictional aspects, we would say that the Commission ought not exercise its discretion to grant the orders sought for a number of reasons which I am happy to elaborate on.
PN43
In relation to the matters that have just been discussed sir, I am in a position to call some evidence in relation to these points, but I will perhaps just clarify the facts as the respondent would contend they are. There is no disagreement that Mrs O'Malley is an employee of the respondent, that she has an accepted claim for workers' compensation for bilateral tenosynovitis of both thumbs and that she has been on a return to work and rehabilitation plan under the state workers' compensation legislation performing currently - until her suspension - five hours per day.
PN44
I am instructed that currently whilst she is on suspension, she is in fact being paid no workers' compensation. The company has withdrawn the duties that were made available under the rehabilitation plan and the amount that is being paid currently to Ms O'Malley is her full wages and that is being paid by the respondent. The situation whilst she is - - -
PN45
THE SENIOR DEPUTY PRESIDENT: Can I understand that Clipsal are a self-insured employer?
PN46
MS McINTYRE: No, they are not. They are insured under the workers' compensation scheme and their claims are managed by QBE, their claims insurer.
PN47
THE SENIOR DEPUTY PRESIDENT: Is Clipsal paying the employee or is the insurer paying the employee?
PN48
MS McINTYRE: Sorry, Clipsal currently is paying the employee. Whilst she was at work, then the situation was as my friend indicated, that partly she was being paid workers' compensation for the periods that she was unable to work and that Clipsal was paying her for the hours that she was at work. But currently, because Clipsal have withdrawn her duties, they are paying 100 per cent.
PN49
Sir, we would call evidence in relation to the facts of the matter, which we say put something of a different gloss on the application as pleaded. We don't dispute as I say, the first four aspects of the grounds on which the application is made, but there are some additional facts which put the matter into a different context, and we have some documents in relation to this.
PN50
Ms O'Malley's claim was accepted, she was on a graduated return to work program and then QBE issued a determination which on 10 December, based upon a certificate issued by Dr Mitchelmore certifying that the worker had ceased to be incapacitated for work. The effect of the decision of QBE was to cease the worker's payments of weekly compensation at that stage. The grounds for Dr Mitchelmore's opinion was and I quote:
PN51
Viewing a video evidence of capacity to perform day to day normal function and activity of both right and left upper limbs, particularly on video evidence dated 11 September 2004 and 20 September 2004.
PN52
Clipsal, not being self-insured, does not have access to the video film, but is aware in general terms that the WorkCover Corporation
was investigating this particular claim with a view to possible fraud prosecution and that as part of that, some video film which
Clipsal has not been able to view, was shown to Dr Mitchelmore.
In response to that letter, clearly there was some - - -
PN53
THE SENIOR DEPUTY PRESIDENT: Sorry, what letter?
PN54
MS McINTYRE: Sorry, in response to that decision of QBE ceasing the worker's entitlements to workers' compensation and more particularly
the comments in the accompanying medical certificate of Dr Mitchelmore, a number of issues whilst arising out of the workers' compensation
claim, but issues that I would characterise more as issues of an employment or disciplinary nature between an employer and an employee,
arose in the respondent's corporate mind and as a result of that, a letter was sent to Ms O'Malley the same day, asking
her - - -
PN55
THE SENIOR DEPUTY PRESIDENT: By Clipsal?
PN56
MS McINTYRE: By Clipsal, asking her to explain a number of circumstances and specifically asking her to explain the medical certificate by Dr Mitchelmore which, we understand, relates to video film showing Ms O'Malley showing dogs at the Royal Adelaide and the Royal Melbourne Show and asking her a number of questions about that.
PN57
The issues that were raised were, we say, matters of sufficient seriousness going to the heart of the employment relationship between Clipsal and Ms O'Malley, that it was appropriate to suspend her, which is what occurred. That letter served as notice of suspension, she was provided with opportunity to respond to the matter set out in the letter and directed to remain at home, but it was indicated she would be paid her usual salary during this period.
PN58
THE SENIOR DEPUTY PRESIDENT: Was there a time frame set for a response?
PN59
MS McINTYRE: Yes, the response was requested by close of business on Wednesday 15 December. A response was actually received on 16 December in which Ms O'Malley denied the matters set out in the letter but did indicate that she had attended the Royal Melbourne Show. She sets out the matters to deal with the - sorry, Mr Baines has just drawn to my attention that the representatives of Ms O'Malley actually asked for an extension of time to respond to the letter to close of business on 20 December and that the letter dated 16 December was in fact received on 20 December.
PN60
Attached to that letter was a certificate or a letter from Dr Mitchelmore retracting his previous certificate and Ms O'Malley responded to the request. Clipsal wrote to Ms O'Malley on 22 December saying that her response would be considered during the Christmas period. There was some difficulties because of the Christmas plant shutdown - - -
PN61
THE SENIOR DEPUTY PRESIDENT: What was that date of that letter?
PN62
MS McINTYRE: 22 December, sir.
PN63
THE SENIOR DEPUTY PRESIDENT: Yes.
PN64
MS McINTYRE: And again, it was indicated that she would be contacted in the week of 10 January and until that time, she was to remain at home on full salary. A letter was then sent to her on 11 January in which it was indicated that Clipsal was not satisfied that the response provided adequately answered all the questions put to her and asked that she attend a meeting on 18 January at the workplace to discuss the issue further.
PN65
In the meantime, I believe on 17 January, Clipsal was advised that QBE had revoked the decision in relation to the cessation of workers' compensation in the light of the amended certificate from Dr Mitchelmore.
PN66
THE SENIOR DEPUTY PRESIDENT: So QBE advised on the 17th that they, in effect, were refusing to pay workers' compensation from that point onwards?
PN67
MS McINTYRE: Revoking the decision, refusing to pay workers' compensation. It was refused in December and they reinstated in January. Now one area of dispute with the application is that ground 7 states that the company has taken unlawful industrial action by suspending the worker whilst they investigate the worker's claim for compensation which has already been investigated by the ensure. We take issue with that. The company's issue position is that they are investigating quite separate issues of misconduct, albeit partially arising from information received through the workers compensation claim. But we say they are separate issues to do with use of leave, information provided to the employer and the like.
PN68
There's a suggestion that the company should have filed a notice of dispute in the Workers Compensation Tribunal. It's not clear
to me from the application which decision should have been disputed, but I presume that it's this decision of
17 December - sorry, January, revoking that decision. The response to that is that that would have been an inappropriate action
for the company to have taken because plainly the decision was right. The original decision was based on a certificate of Dr Mitchelmore
which he revoked and plainly QBE was correct in changing that decision. However, we understand from QBE that that's not the end
of the matter, that there are further medical examinations arranged and we further understand that WorkCover has an ongoing investigation
in relation to the issues that are raised.
PN69
But leaving that aside, we say that isn't what the company is disputing. The company is asking, we say, quite legitimate questions of an employee in relation to a number of matters, some of which arise out of the claim for workers compensation, some of which are more fundamental and go to the issue of claims for various forms of leave. To return to the chronology of events as we see them. The meeting took place on 18 January.
PN70
THE DEPUTY PRESIDENT: By that date had QBE reinstated workers compensation payments to the worker?
PN71
MS McINTYRE: The workers compensation payments had in the formal sense been reinstated. I am not sure whether in a practical sense any payments were made. The decision reinstating the entitlement had certainly been issued by that stage but whether payments are made I am not sure, although if I am right about the chronology of it, sir, I would think that there would be no actual weekly payments to be made because for the entire period that the compensation entitlement was suspended my understanding is that Clipsal were paying her her full wages because of the suspension of duties. So there may have been no actual payment to be made arising from the - - -
PN72
THE DEPUTY PRESIDENT: So what you are saying is that because Clipsal were making the entire payments themselves there was no obligation on the insurer, or the insurer's agent to do so?
PN73
MS McINTYRE: Yes, sir, that would be my understanding. I would need to check my instructions on that point, but I think the two periods coincide. So whilst she has been paid full wages, although there may be a technical entitlement to weekly payments of compensation, there may be no actual payment because she is being paid wages for another reason.
PN74
THE DEPUTY PRESIDENT: Yes.
PN75
MS McINTYRE: The meeting on 18 January did not progress very far. There was some discussion, but Ms O'Malley and her representative left the meeting and as a result of that a further letter was sent to Ms O'Malley on 25 January responding to an invitation to put further questions in writing. Those questions were put in writing.
PN76
THE DEPUTY PRESIDENT: This is questions from Ms O'Malley to Clipsal?
PN77
MS McINTYRE: From Clipsal to Ms O'Malley.
PN78
THE DEPUTY PRESIDENT: I see.
PN79
MS McINTYRE: And the response to that was in effect this application and a letter from the union to Clipsal dated 31 January 2005. Clipsal have subsequently, indeed today, sent another letter I believe to the union which may or may not have reached Ms O'Malley and the union responding to the letter of 31 January indicating that in the absence of a response to the questions that have been put, certain conclusions might be drawn in providing Ms O'Malley with the opportunity to comment on those conclusions prior to a decision being made in relation to taking any disciplinary action and the time for that response is Tuesday, 8 February.
PN80
So those, sir, are the rather convoluted facts of the matter - would you like me to address you in relation to the jurisdictional and discretion arguments or would you prefer me to leave it with the brief outline I have just given you?
PN81
THE SENIOR DEPUTY PRESIDENT: There is just one question that I have, first of all, before I answer that request. Do Clipsal consider that Ms O'Malley is suspended or on workers' compensation?
PN82
MS McINTYRE: Suspended.
PN83
THE SENIOR DEPUTY PRESIDENT: I see. So should I understand that you say to me that this is a disciplinary suspension which, because it is not established because an offence or inappropriate behaviour is not yet proven, is being treated on the basis of full payment?
PN84
MS McINTYRE: Yes, that is right, sir.
PN85
THE SENIOR DEPUTY PRESIDENT: If you say you have got objections on the basis that I don't have the jurisdiction to entertain an order, then you had better tell me about it.
PN86
MS McINTYRE: Okay, thank you sir. I have taken the liberty of preparing some written submissions on this to avoid having to quote large slabs of case law, which I am sure you are familiar with already.
PN87
THE SENIOR DEPUTY PRESIDENT: I might have to take some moments to read this.
PN88
MS McINTYRE: Sir, perhaps if I could just take you to the high points and just highlight the key issues as I see them. The balance is probably case law well known to you and excerpts from the legislation that I am sure are well known. Sir, as I say, the first ground for objection is that we say that the action complained of is not industrial action and I take you perhaps to paragraph 5 of the document on page 3. The application doesn't particularise the conduct that could be said to constitute industrial action. What we glean from the application and the opening submissions is that the relevant action is the respondent's actions of suspending Ms O'Malley on full pay pending the investigation of alleged misconduct and we say that that is a lawful and legitimate conduct by the respondent. It is a usual procedure of this employer, if there is an allegation of serious misconduct to suspend an employee pending the investigation of that, and I have referred to some case law in relation to conduct constituting industrial action generally being characterised as unlawful conduct and we say, there is no suggestion or could be no suggestion in these circumstances that the suspension is unlawful. There is no suggestion in the application that the respondent's conduct is in breach of the award or the enterprise agreement - - -
PN89
THE SENIOR DEPUTY PRESIDENT: Does that enterprise agreement provide for suspension or does it set out a disciplinary process?
PN90
Does that enterprise agreement provide for suspension or does it set out a disciplinary process?
PN91
MS McINTYRE: I suppose the short answer to that is not specifically. There is no specific issue of suspension in the enterprise agreement, however it is, I am instructed and can lead evidence on the point, a well recognised and usual procedure for this employer at this work-site to suspend in the circumstances - - -
PN92
THE SENIOR DEPUTY PRESIDENT: Is that part of a documented workplace policy?
PN93
MS McINTYRE: No, I believe not. But we would say it is a usual and legitimate management action in the circumstances.
PN94
THE SENIOR DEPUTY PRESIDENT: I am struggling a little with the fifth paragraph, Ms McIntyre. You say that the action taken by the company does not constitute industrial action as defined. Now, that may well be the case, but if I look at the definition in the Act of Industrial Action, that definition talks of:
PN95
The performance of work in a manner different from that in which it is customarily performed or the adoption of practice relation to work, the result of which is a restriction or limitation on or a delay in the performance of the work.
PN96
Now, if there is an established policy or practice relative to suspension of employees, then I could readily envisage that you would be saying to me that the following of that particular practice was a normal process and hence, was not able to be described as something which is not the customary approach. But I am unclear on what you have told me, that that is in fact the case. And I appreciate at this stage, we are just talking about the jurisdictional pre-requisites, not the exercise of any discretion which might or might not be established.
PN97
MS McINTYRE: Thank you, sir. My instructions are that neither the award or the enterprise agreement provide for suspension and there is no written Clipsal policy relating to suspension, however it is a usual practice of Clipsal to suspend employees in these circumstances.
PN98
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN99
MS McINTYRE: So we say it is a lawful and legitimate exercise of a management discretion and it is entirely consistent with the usual practice. We also say that there is no obligation on an employee under a contract of employment to provide work for an employee unless the contract specifically requires that that occur and I would also say that strictly speaking, Ms O'Malley isn't performing work under the award or the enterprise agreement, but rather we would say is participating in rehabilitation and a return to work plan under the Workers' Compensation and Rehabilitation Act - - -
PN100
THE SENIOR DEPUTY PRESIDENT: But Ms O'Malley was employed pursuant to an enterprise agreement, was she not?
PN101
MS McINTYRE: Yes, indeed, but she is not performing her usual duties, she is working on a return to work plan and we would say that strictly speaking, she is performing duties on that plan rather than performing duties under her normal contract of employment.
PN102
THE SENIOR DEPUTY PRESIDENT: Yes.
PN103
MS McINTYRE: So, my first submission is that lawful and reasonable conduct by an employer in the management of their business could not be regarded as industrial action and we say that the decision to suspend Ms O'Malley pending an investigation into allegations of misconduct is lawful, reasonable and not inconsistent with the award or the enterprise agreement and for those reasons, not industrial action for the purposes of section 4.
PN104
If sir, you are inclined to consider that this is industrial action, we then go onto the second point, which is that section 127 of the Act is only relevant if the industrial action is in relation to an industrial dispute and negotiation of an agreement or work that is regulated by an award or certified agreement and we would say that there appears to be no question that the first of those two options, the basis of the application, appears to be that it is in relation to work regulated by the award or agreement. We would submit that the action isn't in relation to any of those matters, but rather it is in relation to disciplinary proceedings that has no connection with any of the subjects matter of section 127 - - -
PN105
THE SENIOR DEPUTY PRESIDENT: I'm sorry, I have lost that word somewhere.
PN106
Section 127(1) in setting out the jurisdictional prerequisites that must be met before I can even consider the exercise of discretion in section 127 talks of industrial action that is happening or is threatened, impending or probable in relation to an industrial dispute.
PN107
And what you are saying there, is that this is not an industrial dispute?
PN108
MS McINTYRE: That is right, sir.
PN109
THE SENIOR DEPUTY PRESIDENT: The union may or may not take issue with that. Or the negotiation or proposed negotiation of a division 2 agreement, which I suspect is not a relevant factor in this instance?
PN110
MS McINTYRE: No, sir.
PN111
THE SENIOR DEPUTY PRESIDENT: Or the work that is regulated by an award or a certified agreement.
PN112
MS McINTYRE: Yes.
PN113
THE SENIOR DEPUTY PRESIDENT: Now, if I am understanding the point that you are making correctly, are you saying to me that this is not work which is regulated by an award or a certified agreement?
PN114
MS McINTYRE: No sir, the point that I am making, attempting to make, is that the decision is not in relation to work, that the action that was taken is in relation to disciplinary action. The action, the industrial action - - -
PN115
THE SENIOR DEPUTY PRESIDENT: You will need to walk me through that slowly, it is very early in the year.
PN116
MS McINTYRE: Yes sir. The point that we seek to make is that when one looks at the issue of in relation to, there has to be a connection between the two events. So it is industrial action in relation to and in this situation, work that is regulated by an award or certified agreement. What we say is that we didn't take action in relation to the work. We have taken action in relation to disciplinary proceedings. In other words, we have said, stay at home, answer these questions and we will pay you your full pay. Now it may have the consequence of meaning that the employee is not at work performing work, but the decision is in relation or the action is in relation to a suspension for disciplinary reasons, not in relation to say, the manner in which work is performed, a direction to work on another shift or something of that nature, which we would say is in relation to work performed under an award or agreement.
PN117
THE SENIOR DEPUTY PRESIDENT: Yes, I understand what you are saying.
PN118
MS McINTYRE: We would also say that strengthened by looking at the objects of part 6 of the Act, which I have set out at 6.7 of the submissions, we would submit that part 6 of the Act in section 127 in particular, aren't intended to provide a mechanism for individual employees to pursue complaints about the way they have been treated in disciplinary proceedings. The objects of the Act are more to do with the manner in which work is performed, the terms and conditions and which it is performed, the negotiation of agreements - - -
PN119
THE SENIOR DEPUTY PRESIDENT: Sorry, you have switched there - one moment you are talking about the objects of part 6 of the Act, the next minute you are talking about the objects of the Act.
PN120
MS McINTYRE: Sorry, yes.
PN121
THE SENIOR DEPUTY PRESIDENT: Are you talking about the objects of part 6 of the Act or the objects of the Act per se?
PN122
MS McINTYRE: Part 6 of the Act, sir.
PN123
THE SENIOR DEPUTY PRESIDENT: Part 6 of the Act - - -
PN124
MS McINTYRE: Deals with system of enforceable awards, awards acting as a safety net, award simplification - - -
PN125
THE SENIOR DEPUTY PRESIDENT: Sorry, I am lost again. What has that got to do with section 127?
PN126
MS McINTYRE: Sir, it probably doesn't have much to do with the section at this - really in relation to the point that I was making about the connection between the decision taken to the industrial action if it is termed that, being in relation to work that is regulated by an award, I would say it supports the proposition that the decision was not in relation to work regulated by an award, but rather in relation to disciplinary proceedings and the suspension for those reasons. It is not to do with the performance of work or any of the objects of the Act, of part 6 of the Act as set out.
PN127
THE SENIOR DEPUTY PRESIDENT: Yes.
PN128
MS McINTYRE: Sir, that really concludes the comments of submissions I would like to make on the jurisdictional point. The next comments I would like to make relate to the exercise of the discretion. Would you prefer me to - - -
PN129
THE SENIOR DEPUTY PRESIDENT: No, I don't need to hear from you in that regard at this stage.
PN130
MS McINTYRE: Thank you, sir.
PN131
THE SENIOR DEPUTY PRESIDENT: Thank you, Ms McIntyre. Ms Smith this is your opportunity to respond to those concerns expressed about the capacity or the jurisdiction of the Commission to consider section 127.
PN132
MS SMITH: Yes. First, I might just address the wages. I have a letter to Mrs O'Malley dated 17 January 2005 from QBE Mercantile Mutual which states:
PN133
For taxation purposes, please complete and return enclosed tax declaration for to allow QBE to tax you at the appropriate rates in its taking over direct payments to yourself.
PN134
So from that, it appears that QBE, I don't know what amount of payments they are doing, but they have clearly sent Mrs O'Malley a note that they are liable for making payments.
PN135
In relation to consistency with the usual practice, Mrs O'Malley has told me that she has been employed with Clipsal for some eight years and she has never known of anyone being suspended before, so in our submission, it is not consistent with the usual practice.
PN136
My learned friend said she was working duties on a rehabilitation and return to work plan. It is our submission she is not doing any duties whatsoever, because her employer won't allow her to.
PN137
As far as jurisdiction goes, it is very clear that pursuant to section 4 of the Act that industrial action is occurring. I won't read that out, I am sure you are familiar with it. It is and union alleges that it is an industrial dispute and it is in relation to work which is regulated by an award or certified agreement which Mrs O'Malley is employed under. Therefore, it is our submission that your Honour does have jurisdiction to hear this matter and to issue orders in relation to this matter.
PN138
THE SENIOR DEPUTY PRESIDENT: Yes, thank you Ms Smith. Ms McIntyre, I am going to allow the application to proceed. I will address, in a preliminary sense, the particular issues you have raised. Firstly, I am not able to conclude on the information given to me at the present time, and I stress that, as I haven't as yet heard evidence, that employee is in fact being paid by QBE or by Clipsal. I am not able to conclude or to reach a definitive conclusion relative to whether or not the action taken by Clipsal is in fact industrial action. I am not able to reach a conclusion, such that the employee was not engaged pursuant to the terms of that certified agreement and was instead engaged under the terms of some sort of return to work program. There is nothing before me that allows me to conclude that the agreement was in effect irrelevant.
PN139
In terms of the extent to which the industrial action, if it is industrial action is properly characterised as one of the three incidents set out in or circumstances set out in section 127, it may or may not be a matter associated with the industrial dispute. It is clearly not a matter associated with the negotiation or proposed negotiation of an agreement, but it also appears that if indeed it is industrial action, then it may be in relation to work regulated by an award or a certified agreement.
PN140
Now, looking at section 127 I have reached absolutely no conclusion about whether or not the action can be described as industrial action as yet. I am simply saying I am not persuaded that the matter can proceed no further on the basis of what you have told me. I have reached no conclusion about whether or not I can conclude that the industrial action, if indeed it is industrial action, is in relation to an industrial dispute or work covered by agreement and again, I would be reliant upon the evidence in that regard. In overall terms, I am happy to hear evidence in the matter and I am not persuaded at this stage that the application should be struck out on what you have told me. That said, I will it to Ms Smith to outline what evidence she does or does not wish to present.
PN141
It does appear to me that two issues warrant particular mention and both Ms Smith and Ms McIntyre might want to take these on board. There appears to be a matter of fact which will need to be determined one way or the other as to who it is that is paying Ms O'Malley and that has the potential to impact on what status she has at the present time in terms of whether or not she is on workers' compensation or whether or not she is suspended. If indeed Ms O'Malley is on workers' compensation, then Ms Smith is going to need to convince me that irrespective of whether or not I find the jurisdiction exists to utilise section 127 that I ought to do so. The Workers' Rehabilitation and Compensation Act 1986 goes to some lengths to deal with situations where the employees are not allowed the opportunity to participate in return to work programs. Indeed, the provisions of section 58(b) and various other sections deal in some length with some of those types of situations.
PN142
If this is properly characterised as a workers' compensation situation, then irrespective of the extent to which there may be jurisdiction, I will need to be persuaded to exercise that jurisdiction in circumstances where the Commission doesn't generally wade into workers' compensation matters. If on the other hand, the circumstance confronting this employee is such that it is best described as a suspension and the employee should not be described as being on workers' compensation, then one would expect that Ms McIntyre will need to demonstrate to me in greater detail the status of that practice which is said to exist relative to suspension of employees for disciplinary purposes. Now I mention both of those matters now because if the parties aren't ready to present argument to the evidence on those issues now, then I am probably not inclined toward proceeding with the matter this afternoon. Ms Smith are you going to be able to present evidence and address me on those issues now?
PN143
MS SMITH: Yes, your Honour, but it won't be clearly one way or the other. It will be our submission that Mrs O'Malley is partly suspended and partly on workers' compensation and that is in accordance with the prescribed medical certificates which I will tender.
PN144
THE SENIOR DEPUTY PRESIDENT: Very well, I can live with that, thank you.
PN145
MS McINTYRE: Sir, I am instructed that it would be possible for Clipsal to have someone here with the payment - - -
PN146
THE SENIOR DEPUTY PRESIDENT: I can't here you, I'm sorry Ms McIntyre.
PN147
MS McINTYRE: Sorry. I am instructed that it would be possible for Clipsal to have someone hear this afternoon with payment records which would show the payments that have been made by Clipsal in relation to Ms O'Malley's suspension.
PN148
THE SENIOR DEPUTY PRESIDENT: I see, all right.
PN149
MS McINTYRE: They are not here presently, but I would need to make - - -
PN150
THE SENIOR DEPUTY PRESIDENT: And if I gave you a five minute adjournment to commence the process of organising that, would that assist matters?
PN151
MS McINTYRE: Yes it would, thank you.
PN152
THE SENIOR DEPUTY PRESIDENT: Very well. On our resumption, Ms Smith will have the opportunity to present her argument. I will adjourn the matter on that basis.
<SHORT ADJOURNMENT [2.55PM]
<RESUMED [3.14PM]
PN153
THE DEPUTY PRESIDENT: Yes, Ms Smith.
MS SMITH: Your Honour, I seek leave to call my first witness, Mrs Liat O'Malley.
<LIAT ROBYN O'MALLEY, SWORN [3.14PM]
<EXAMINATION-IN-CHIEF BY MS SMITH [3.15PM]
PN155
MS SMITH: Mrs O'Malley, how long have you worked Clipsal Australia
for?---Seven years.
PN156
Seven years. And how long have you been the shop steward there?---Nearly 12 months, not quite.
PN157
Are you currently working at the minute?---No, I am not.
PN158
Why not?---The employer won't let me come back to work.
PN159
What reason did they give for this?---That I was suspended.
PN160
Did they say you were suspended?---No. They sent me - they gave me - they didn't tell me at the time but they did hand me a letter that I was leaving.
PN161
Do you know the date of that letter?---The 10th.
PN162
Of?---December.
PN163
2004?---Yes.
PN164
Do you have that letter with you?---Yes, I do, in my folder.
PN165
So it says that your conduct may be in breach of Clipsal policies and your contract of employment, is that correct?---That's correct.
PN166
Your Honour, I seek leave to tender this letter and have it marked as an exhibit, however I do not have any copies of that.
PN167
THE DEPUTY PRESIDENT: Perhaps I will ask that the letter be shown to
Ms McIntyre first of all.
PN168
MS SMITH: Yes.
MS McINTYRE: Yes, I have no objection and I also have some copies, if that would be of assistance.
**** LIAT ROBYN O'MALLEY XN MS SMITH
MS SMITH: Yes, that would be.
EXHIBIT #AMWU1 LETTER TO MS O'MALLEY, DATED 10/12/2004
PN170
MS SMITH: To your knowledge has anyone else at Clipsal Australia, Strathalbyn, been suspended?---Not to my knowledge.
PN171
Are you in receipt of wages whilst you have been suspended?---Wages, yes.
PN172
Who are these paid by, QBE, Mercantile Mutual or Clipsal Australia?---Well, as far as I know my payslips have all had WC written next to them and in the last few weeks I have been getting them direct from - direct payslips from QBE.
PN173
When you say your payslips have had WC marked next to it, are they issued by Clipsal?---They were.
PN174
Permission to approach the witness, your Honour?
PN175
THE DEPUTY PRESIDENT: Yes.
PN176
MS SMITH: That's an EFT payment advice from WorkCover Corporation, dated 19 January 2005 and for the amount of $707.48. How long have you been receiving payslips like this for?---This will be my third pay.
PN177
Is this the final one?---No, I have had one other one but I have misplaced it. It's at home. I have been paid again since.
PN178
Okay. I seek leave to tender this document and have it marked as an exhibit,
your Honour.
PN179
THE DEPUTY PRESIDENT: Yes. Once again I will ask the document be shown to - - -
PN180
MS SMITH: I have given them a copy.
THE DEPUTY PRESIDENT: Thank you.
EXHIBIT #AMWU2 PAYMENT ADVICE UNDER THE HEADING OF THE WORKCOVER CORPORATION, DATED 19/01/2005
**** LIAT ROBYN O'MALLEY XN MS SMITH
MS SMITH: Permission to approach the witness, your Honour? I have handed the witness a copy of the QBE Mercantile Mutual notification of their decision.
PN182
Ms O'Malley, have you seen this document before?---Yes, I have.
Your Honour, I seek leave to tender this document and have it marked as an exhibit.
EXHIBIT #AMWU3 LETTER FROM QBE MERCANTILE MUTUAL, DATED 17/01/2005 TO MS SMITH
PN184
MS SMITH: Ms O'Malley, are you currently covered by rehabilitation and return to work plan?---No.
PN185
I have handed you a report from a hand specialist, Suzanne Caragianis and it has stage 2 and stage 3 written on the front. Can you please explain to the Commission what this document is?---This was Doctor - I mean Suzanne Caragianis came to the workplace to have a look and she wrote out a report on how she thought I should virtually go back into work.
PN186
Have you been given the opportunity to carry out your work in accordance with her recommendations?---Up until 10 December 2004, yes.
Your Honour, I seek leave to have this document tendered and marked as an exhibit.
EXHIBIT #AMWU4 MEDICAL ASSESSMENT, DATED 18/05/2005 FROM DR SUZAANNE CARAGIANIS
PN188
MS SMITH: Ms O'Malley, I have just handed you a copy of prescribed medical certificate issued by Dr Jan Tomilinson. The certificate says you are fit to return to modified duties from 24 January 2005 to 7 March 2005. Could you read what the following restrictions state?---Stage 5 for two weeks. Half an hour, auto line half an hour, then stage 6, auto line for an hour for four weeks.
PN189
Do you know what stage 5 and stage 6 refers to?---In the report from Suzanne it reports to the certain things that I can do for how many hours I can do them for.
Okay. Your Honour, I seek leave to tender this document and have it marked as an exhibit.
EXHIBIT #AMWU5 PRESCRIBED MEDICAL CERTIFICATE, DATED 24/01/2005
**** LIAT ROBYN O'MALLEY XN MS SMITH
MS SMITH: Since what date have you been suspended?---10 December 2004.
PN191
So since that time you haven't been able to carry out your rehabilitation anywhere?---That's correct.
PN192
Did you speak to any of your specialists about showing DOCS whilst you were certified as being incapacitated for work?---Yes, I did.
PN193
And what did they say?---Suzanne Cariagianis I spoke to and she said it was a good idea for me to do it because it helps strengthen my hands and my arms.
PN194
Okay. I have handed you a letter from Suzanne Cariagianis dated 29 November 2004. Is that consistent with the advice that she gave you?---Yes, that's correct.
I seek leave to tender this document and have it marked as an exhibit, your Honour.
EXHIBIT #AMWU6 CORRESPONDENCE DATED 29/12/2004 FROM DR CARIAGIANIS
PN196
MS SMITH: I have just handed the witness a document on Clipsal letterhead dated 25 January 2005.
PN197
Ms O'Malley, this is a letter to you from Clipsal. What was the purpose of this letter?---The purpose of the letter was to ask me some more questions. Clipsal wanted to ask me some more questions.
PN198
And did you respond to these questions?---I responded to a few of them. A lot of these questions are asking what you do in work and
your own time, aren't
they?---Yes.
I seek leave to tender this document and have it marked as an exhibit, your Honour.
EXHIBIT #AMWU7 CORRESPONDENCE TO MS O'MALLEY, DATED 25/01/2005
PN200
MS SMITH: I have no further questions of the witness, your Honour.
THE DEPUTY PRESIDENT: Ms McIntyre.
<CROSS-EXAMINATION BY MS MCINTYRE [3.28PM]
**** LIAT ROBYN O'MALLEY XXN MS MCINTYRE
MS McINTYRE: Yes, your Honour.
PN202
Ms O'Malley, you have given evidence that I think on 10 December you were handed a letter which has been tendered as AMWU1, the letter also dated 10 December?---That is correct.
PN203
And you were told, you said, not to return to work, that you had been
suspended?---Only by reading the letter.
PN204
Can I put to you that Mr Baines said that you should, in handing you the letter, that you should stay at home because there were some serious allegations that you needed to respond to?---No, he did not.
PN205
Did you, on or about the same day, receive a letter from QBE advising you of a medical certificate from Dr Mitchelmore, dated 18 November 2004, certifying you were no longer incapacitated for work?---I didn't receive it on the same day. I received it a few days before.
PN206
A few days?---Three or four days.
PN207
Before the 10th?---Before the 10th.
PN208
THE DEPUTY PRESIDENT: Ms McIntyre, you will need to speak up I am afraid.
PN209
MS McINTYRE: Yes, sorry, sir.
PN210
THE DEPUTY PRESIDENT: And Ms O'Malley, you might also need to speak up a little, please?---Okay.
PN211
Someone is recording all of this information and I suspect they might be having some difficulty.
PN212
MS McINTYRE: Ms O'Malley, I think your evidence was that you received a letter from QBE but not on 10 December?---Not on the same day, no.
PN213
Ms O'Malley, I think your evidence was that you received a letter from QBE but not on 10 December?---Not on the same day, no.
PN214
Right. Did you receive - - - ?---Sorry, sorry. I received a letter from them, yes. Yes, I did, sorry. Yes.
**** LIAT ROBYN O'MALLEY XXN MS MCINTYRE
The same day?---To advise me to come into work and then they gave me a letter when I was there, yes, sorry. Yes.
PN215
And if I could just show you this. I will just approach the witness. Is that a copy of the letter that you received with the attached medical certificate? Sorry. Is that a copy of the letter dated 10 December 2004 from QBE?---Yes, that's correct.
PN216
And an attached medical certificate?---Yes.
I tender a copy of that document.
EXHIBIT #C1 CORRESPONDENCE FROM QBE MERCANTILE MUTUAL, DATED 10/12/2004, INCLUDING A MEDICAL CERTIFICATE, DATED 18/11/2004
PN218
MS McINTYRE: And looking at that letter, do you agree that that is a letter advising you that QBE Workers Compensation were giving you 21 days notice prior to income maintenance payments being discontinued?---Yes.
PN219
And the advice to you that if you disagreed with that decision you could apply for a review under section 90 of the Workers Compensation Act?---That's correct.
PN220
Just turning to the certificate that's attached to that letter, do you agree that that appears to be a certificate from Dr P Mitchelmore, dated 18 November 2004?---It appears to be.
PN221
And that Dr Mitchelmore has certified that the worker has ceased to be incapacitated for work?---That's what it says.
PN222
And that you are the worker named on that certificate?---Yes, I am.
PN223
And that it states that the grounds for the doctor's opinion are, and I quote:
PN224
Viewing of video evidence of capacity to perform day to day normal function and activity of both right and left upper limbs.
PN225
And it's a little bit hard to read because it's chopped in my copy, but I think that may be:
PN226
Particulars on video evidence dated 11.9.04 and 20.9.04.
**** LIAT ROBYN O'MALLEY XXN MS MCINTYRE
?---That's correct.
PN227
You received the letter that has been admitted into evidence that is exhibit AMWU1, that's the letter from Clipsal dated 10 December. Did you stay at home after that date?---Stay at home?
PN228
Yes?---Yes.
PN229
And you were paid during that period?---Yes, I was.
PN230
Are you able to remember how you were paid?---Well, I had my payslip sent to me from work.
PN231
By Clipsal?---Yes. And when I opened them it said that - it had WC next to the payments.
PN232
Thank you. Now, you were asked in the letter dated 10 December 2004 to respond to that letter by close of business Wednesday, 15
December
2004?---That's correct.
PN233
And it's the case, isn't it, that you have consulted your union and they sought an extension of time for you to respond to that letter until 20 December?---That's correct.
PN234
And you did respond on 20 December, or you have provided a letter to Clipsal on 20 December?---Yes, I did.
PN235
And that letter was dated 16 December 2004?---That's correct, yes.
PN236
Do you have a copy of that letter before you?---Yes, I do. Just bear with me for a moment until I find it. Everything has been turned upside down. Yes. Yes, that's correct, 16 December.
PN237
And did you have attached to that letter a further letter from Dr Mitchelmore?
---Sorry?
PN238
Did you have attached to that letter a further letter from Dr Mitchelmore?---No.
Okay. I seek to tender a copy of that letter dated 16 December 2004.
EXHIBIT #C2 CORRESPONDENCE TO MR BAINES FROM
MS O'MALLEY, DATED 16/12/2004
**** LIAT ROBYN O'MALLEY XXN MS MCINTYRE
MS McINTYRE: And do you agree that by a letter dated 22 December 2004
Mr Baines wrote to you saying thank you for your letter of response, dated 16 December 2004 and indicating that he would consider
your response during the Christmas period?---Yes, I did.
PN240
And he further indicated that he would make contact with you in the week of
10 January?---As far as I know, that is correct.
PN241
Do you have a copy of that letter?---I do somewhere.
PN242
Perhaps I could approach the witness?---Thank you.
PN243
Is that a copy of the letter?---Yes, that's correct. Yes.
Thank you. I tender that letter. I am just directing to you the last paragraph of that letter. Do you agree that it says, "Until the time" - sorry, no, wrong letter. I will retract that.
EXHIBIT #C3 CORRESPONDENCE TO MS O'MALLEY FROM CLIPSAL, DATED 22/12/2004
PN245
MS McINTYRE: Directing your attention to the last paragraph of that - I am sorry. Yes, and the last paragraph of that letter indicates that until Mr Baines contacts you are directed to remain at home and you will be paid your usual salary during this period?---That's correct.
PN246
Now, Mr Baines did contact you during the week of 10 January and I suggest wrote to you with a letter dated 11 January 2005?---I just have to find it. Sorry, what was the date?
PN247
11 January?---11 January, yes.
PN248
And that letter indicates that Mr Baines has considered your response during the Christmas period, that he didn't consider that it adequately answered all the questions put to you in his original letter of 10 January?---That's correct.
PN249
And he asked you to attend an interview on Tuesday, 18 January?---That's correct.
PN250
And the final paragraph of that letter says:
**** LIAT ROBYN O'MALLEY XXN MS MCINTYRE
Until the time of the interview you are to continue to remain at home. You will be paid your usual salary during this period.
PN251
?---That's correct.
I tender that letter also.
EXHIBIT #C4 CORRESPONDENCE TO MR BAINES, DATED 11/01/2005
PN253
MS McINTYRE: Ms O'Malley, referring back to the QBE decision, it's the case, isn't it, that on or about 10 January 2005 you lodged a notice of dispute of that decision in the Workers Compensation Tribunal?---Yes, that's correct.
PN254
And subsequent to that QBE reconsidered the decision and lodged a variation of that decision, setting aside the decision to discontinue your entitlement to income maintenance payments?---That's right.
PN255
And you understood the effect of that to be that you were now entitled to weekly payments of compensation from the date that they had been ceased by QBE?---I just presumed they were paying me along. I didn't know any different.
PN256
What did you think was the effect of that decision?---The effect of that decision?
PN257
Yes?---That they didn't have enough evidence against me.
PN258
Ms O'Malley, you have said that you received the decision from QBE dated 10 December 2004 indicating that your entitlement to weekly payments of compensation had ceased?---I presumed it was up until 21 days or something.
PN259
But in any event, you understood the effect of the new decision by QBE was to revoke that original decision dated 10 December?---Yes.
PN260
Thank you. On 18 January 2005 you attended an interview with Mr Baines at Clipsal?---That's correct.
PN261
And you attended with Mr Plant, your union organiser?---I did, yes.
PN262
And during the course of that you were asked some questions?---I was, yes.
PN263
But reached a point during the interview where you declined to answer any further questions?---That's correct.
**** LIAT ROBYN O'MALLEY XXN MS MCINTYRE
And you terminated the meeting?---That's correct.
PN264
And I suggest to you that it was stated at the end of that meeting that you would not respond to further questions unless they were put in writing?---That's correct.
PN265
And subsequent to that, by a letter dated 25 January 2005 Mr Baines wrote to you enclosing a copy of the questions that you had answered in the course of the interview, together with your response?---Yes.
PN266
And he invited you to answer some additional questions by close of business on 4 February 2005?---Yes, those questions and some more. Yes.
PN267
Just a moment, sir, I have got a copy of the letter but not the questions. I have only got one copy of the enclosure to the letter that I propose to tender. That's the letter of 25 January 2005.
PN268
THE DEPUTY PRESIDENT: Well, I will ask that the documents be shown to Ms Smith.
PN269
MS SMITH: Sir, I think that may be exhibit AMWU7.
PN270
THE DEPUTY PRESIDENT: Ms Smith?
PN271
MS SMITH: It's AMWU7. It's already an exhibit.
PN272
MS McINTYRE: Sir, I won't press the - - -
PN273
THE DEPUTY PRESIDENT: I am sorry, I didn't hear the exchange between the two of you.
PN274
MS McINTYRE: It has already been tendered as AMWU7, your Honour.
PN275
THE DEPUTY PRESIDENT: Yes, thank you.
PN276
MS McINTYRE: And did you instruct the AMWU to respond to that letter on your behalf?---Yes, I did.
PN277
And can I show you a copy of a letter from the AMWU to Mr Baines, dated
31 January 2005 which indicates that it is that response?---Thank you.
**** LIAT ROBYN O'MALLEY XXN MS MCINTYRE
And looking at that letter are you able to say that that's the letter you instructed the union to send on your behalf?---Yes.
I tender that letter also.
EXHIBIT #C5 CORRESPONDENCE FROM AMWU TO CLIPSALDATED 31/01/2004
PN279
MS McINTYRE: Do you agree that the intent of that letter is to decline to answer the questions in the previous letter from Clipsal
dated 25 January
2005?---Yes.
PN280
Have you today received a letter from Clipsal?---Yes, I have.
PN281
Is that the letter that you have received?---It looks like it, yes.
PN282
And do you agree that that letter calls for a response from you to the matters set out in it by next Tuesday, 8 February?---Sorry, what was that again?
PN283
Do you agree that that letter calls for a response from you by Tuesday, 8 February?---No.
PN284
When do you think it calls for a response?---When I have had time to go through it. I haven't had time to go through it yet so I don't know really what is in it.
PN285
Okay. So you have not had the opportunity to read - - -
PN286
THE DEPUTY PRESIDENT: Ms O'Malley, you will need to speak up?---Sorry, I haven't had the opportunity to go through it all yet.
PN287
Thank you.
PN288
MS McINTYRE: Perhaps if I could take you to the final page of that letter and the last paragraph - sorry, the second to last paragraph, and I will read that to you:
PN289
In view of the seriousness of these conclusions and the fact that they have been reached in the absence of any explanation from you, we wish to provide you with one final opportunity to comment. We request a response in writing by the close of business on Tuesday, February the 8th, 2005.
PN290
Do you agree that that letter calls for a response by the close of business on Tuesday, 8 February 2005?---Yes.
**** LIAT ROBYN O'MALLEY XXN MS MCINTYRE\
Thank you. I tender a copy of that letter, sir. I am afraid I have only got the original and the photocopy with that now.
PN291
THE DEPUTY PRESIDENT: Yes. Could I ask that you show the original then to Ms Smith.
PN292
MS McINTYRE: I have just shown the original to - - -
PN293
MS SMITH: I have had a look, but it is six pages and I don't have time to read it.
PN294
THE DEPUTY PRESIDENT: Yes.
PN295
MS McINTYRE: Sir, I am not tendering it for the purpose of the content as much as to show the timeframe and the date within which a response is called for.
PN296
THE DEPUTY PRESIDENT: I will receive the letter on the basis that you intend only to rely upon it for that purpose. Ms Smith, if you consider that disadvantages you in any way you are at liberty to indicate that to me, in which case I will adjourn the matter for a short time to give you the opportunity to read the document.
PN297
MS SMITH: Yes, I would prefer if I could have a copy and to read the document, your Honour, because I don't know what - - -
PN298
THE DEPUTY PRESIDENT: Do you want to do that before any
re-examination?
PN299
MS SMITH: Yes, please.
PN300
THE DEPUTY PRESIDENT: Yes. You can continue at this stage.
PN301
MS McINTYRE: Thank you, sir.
PN302
Ms O'Malley, taking you back now to the evidence you gave earlier relating to your return to work and rehabilitation plan?---Yes.
PN303
Am I correct in saying that your evidence was that you have been on a return to work and rehabilitation plan since shortly after the report of Ms Caragianis dated 18 May 2004?---That is correct.
**** LIAT ROBYN O'MALLEY XXN MS MCINTYRE
And that at the time of your suspension you were at what is described as stage five of that plan, being five hours a day, five days a week?---That is correct.
PN304
And that the effect of the certificate from your treating specialist, Dr Tomlinson, that was also tendered, is that you should continue with that plan for two weeks, I presume from the date of the certificate, 24 January 2005?---That is correct.
PN305
But then proceed to stage six thereafter?---That is correct.
PN306
And for completeness of stage seven of the return to work program appears to be a return to virtually full duties. Is that your understanding of it?---To the hours.
PN307
Full hours, but with a modification of duties?---That is correct.
PN308
Ms O'Malley, can I ask, have you made a complaint to the WorkCover corporation or to QBE concerning the withdrawal of the return to work plan and program?---I didn't know I could.
PN309
But I take it your answer is no, you haven't?---No.
PN310
Have you made any other complaint other than these proceedings in relation to the withdrawal of those rehabilitation duties?---Complaints to who?
PN311
Have you lodged any application with the employer other than the letters that we have referred to?---I have no idea what I was supposed to do, no I haven't.
PN312
But you have been taking advice from the union as to the appropriate course of action?---Yes, I have.
PN313
Ms O'Malley, is it the case that QBE has arranged for you to be reviewed by an orthopaedic surgeon some time this month?---Yes, they have, but they haven't given me another date.
PN314
And I understand that you were originally scheduled to see him today?---That is correct.
PN315
And that has been put off because of these proceedings?---That is correct.
PN316
And there was a further earlier appointment in January that was cancelled because you were unavailable to attend?---That is correct.
**** LIAT ROBYN O'MALLEY XXN MS MCINTYRE
And it is also the case isn't it, that you have been interviewed by an investigator from WorkCover about one week ago in relation to these matters?---That is correct.
PN317
Thank you. I have nothing further, sir.
THE DEPUTY PRESIDENT: Yes. Ms McIntyre, I was remiss. Whilst I said I had received the document dated 2 February 2005, I am not sure that I formally marked it, and I will do so.
EXHIBIT #C6 DOCUMENT DATED 02/02/2005
THE DEPUTY PRESIDENT: The Commission will adjourn for approximately five minutes. During that time my associate will copy C6, and Ms Smith will have the opportunity to read C6 before completing a re-examination of the witness. During that time, Ms O'Malley, you are still in the witness box. I will ask you not to talk to anyone about this matter during that brief adjournment. I will adjourn the matter on that basis.
<SHORT ADJOURNMENT [3.59PM]
<RESUMED [4.14PM]
<RE-EXAMINATION BY MS SMITH
PN320
THE DEPUTY PRESIDENT: Ms Smith?
PN321
MS SMITH: Ms O'Malley, when I questioned you and asked you if you had a rehabilitation return to work plan, you said that you didn't. But when my learned friend referred to a rehabilitation return to work plan, you agreed with that. Do you have a rehabilitation return to work plan?---Well, I have received a letter from my rehabilitation officer saying that they had ceased my rehabilitation as from 13 December, so that is what I thought my rehabilitation was - so back to - that was my back to work program as far as - - -
PN322
Do you have a current rehabilitation return to work plan?---Not from my rehabilitation officer, no.
PN323
But you have recommendations from the hand specialist, Suzanne
Caragianis?---Yes, I do.
I have no further questions of the witness, your Honour, and request she be released, unless you have any questions of her.
**** LIAT ROBYN O'MALLEY RXN MS SMITH
THE DEPUTY PRESIDENT: No, I don't. You are released thank you, Ms O'Malley?---Thank you.
<THE WITNESS WITHDREW [4.15PM]
MS SMITH: Your Honour, I seek leave to call our next witness, Mr Andrew Plant.
<ANDREW JOSEPH PLANT, AFFIRMED [4.16PM]
<EXAMINATION-IN-CHIEF BY MS SMITH
PN326
MS SMITH: Mr Plant, when did you first become involved in this
matter?---Around 18 January.
PN327
And have you attended any meetings as Ms O'Malley's representative?---Yes. I attended a meeting on 18 January at 1 pm at the request of Clipsal.
PN328
Okay. Who was present at this meeting?---Mr Roy Baines, Ms Ades, Liat O'Malley and myself.
PN329
And what was discussed at the meeting?---Initially the company said they had a series of questions they wanted to ask Ms O'Malley in relation to what they believed was a breach of company policy or contract of employment. At the opening I asked for them to identify what the breach of company policy was or what breach of the contract of employment there had been, and the company declined to identify either, so there was some reluctance in answer to questions, but we proceeded and went through Liat answering a number of questions until it became evident to me that the questions did not relate to her contract of employment. They were questions to do with a WorkCover claim.
PN330
Which at that time had you been advised that the variation had withdrawn the discontinuance of work components?---That was the advice I received before attending the meeting, the discontinuance had been withdrawn and payment s were now being made by QBE.
PN331
Were there any further meetings held?---No, there were no further meetings with Mr Baines and Ms Ades. That particular meeting ended. I asked a number of questions, I asked the company, I asked Mr Baines who prepared the questions, and he said he authorised them, Ms Ades said she put a number of the questions together, but there was no response as to who had put all of the questions together, and I had some concerns about that. After that point I allowed a number of other questions to be asked, I think it was something to the effect of 20. They all referred to the WorkCover claim, attendance at one or another shows, whether it was a Melbourne or Adelaide show, the numbers of breaks people had, a whole range of things, and none of which in my view had anything to do with the contract of employment. So we terminated the meeting. I terminated the meeting on the basis that there was some sort of fishing exercise going on, and asked the company if they sought any other questions to be answered could they send them to Ms O'Malley or myself in writing, and could they also identify where there had been a breach of the company's policy or procedure or, in fact, of contract of employment.
**** ANDREW JOSEPH PLANT XN MS SMITH
And did this occur?---No, that hasn't occurred.
PN332
Did they send you the questions?---The questions were sent with a letter to Ms O'Malley, but identifying where there had been a breach of the policies or the contract or employment has still not occurred today.
PN333
I will just give you a document just to see if that is the questions?---It looks like the questions. I didn't take note of exactly what the questions were, but this doesn't reflect in any way any of the comments that I made, that I can see, or the questions answered.
PN334
That document the witness was referred to was exhibit AMWU7. Do you believe that Ms O'Malley has been treated differently because she is a shop steward for the union?
PN335
MS McINTYRE: I object to that, sir. That is a question of opinion.
PN336
THE DEPUTY PRESIDENT: It is a question of opinion, but I will allow the question?---I do believe that she has been treated differently. It is fairly common knowledge at Strathalbyn that there are a number of employees who work for Clipsal that have other private businesses, and in this particular case a number of the questions asked were in reference to what the company were looking for, some evidence that Ms O'Malley was running a separate private business, which I don't believe she is. Her response is to that effect. This isn't the first time in my experience Clipsal have treated AMWU delegates differently. I have been before the Commission under a section 99 application in June or July last year for the same thing.
PN337
The statement of Senior Deputy President O'Callaghan dated 7 July 2004, is that the section 99 dispute you were referring to?---That is correct.
PN338
Okay. And it says:
PN339
The parties have agreed that the following statement should be published to employees in each of Strathalbyn, Murray Bridge and Nuriootpa facilities.
Was this done?---No, it wasn't done. I was quite surprised about that. The statement is on the Commission's record. In conference it was agreed that the company would publish this statement at each of the three sites, and two days later that still hadn't occurred, some other thing was published, and the union published it, we published it at all those three sites.
**** ANDREW JOSEPH PLANT XN MS SMITH
I seek leave to tender and have that document marked as an exhibit, your Honour.
EXHIBIT #AMWU8 STATEMENT ISSUED BY DEPUTY PRESIDENT O'CALLAGHAN ON 07/07/2004
PN341
MS SMITH: Mr Plant, I just handed you a Clipsal memorandum. What was the purpose of this?---Well, this was the document the company published after the Commission hearing. They didn't - - -
PN342
THE DEPUTY PRESIDENT: I am sorry, can I interrupt you, Mr Plant?---Sorry.
PN343
Ms Smith, did I just hear you say that you had just handed Mr Plant a Clipsal memorandum?
PN344
MS SMITH: That is correct.
PN345
THE DEPUTY PRESIDENT: And yet you asked him the purpose of that memorandum.
PN346
MS SMITH: Yes.
PN347
THE DEPUTY PRESIDENT: But did Mr Plant write the memorandum?
PN348
MS SMITH: No. But he can read - - -
PN349
THE DEPUTY PRESIDENT: Could you perhaps rephrase the question. Bear in mind I have yet to see this document.
PN350
MS SMITH: Mr Plant, why do you believe this memorandum was issued?---I believe the memorandum was issued because the company wanted to give some clarity to the work force that there had, in fact, been a hearing in the Commission before Senior Deputy President O'Callaghan. But it doesn't go on to reflect the statement that was agreed in the Commission to be published.
PN351
I have no further questions of the witness, your Honour.
PN352
THE DEPUTY PRESIDENT: Do you seek that I admit that document?
PN353
MS SMITH: Yes, I seek to tender it.
PN354
MS McINTYRE: May I just have a few moments to discuss these two documents that have just been tendered with my clients, and take some instructions before I cross-examine Mr Plant?
**** ANDREW JOSEPH PLANT XN MS SMITH
THE DEPUTY PRESIDENT: Yes, you can. Are you saying you want a brief adjournment for that purpose?
PN355
MS McINTYRE: Yes, your Honour, if I may.
THE DEPUTY PRESIDENT: Yes, I am happy to grant you that adjournment, Ms McIntyre, and to that extent Ms Smith. I will be needing to conclude these proceedings in something like 25 minutes, so that I need to put you on notice to that effect. I don't intend to cut off either party. If we cannot conclude the matter within that timeframe it will be re-listed. Unfortunately I am in Melbourne tomorrow, so I won't be able to re-list it until some time next week. I thought it only fair to put you on notice to that effect. Now, I will mark the document to which Ms Smith was referring.
EXHIBIT #AMWU9 CLIPSAL MEMORANDUM DATED 08/07/2004
PN357
THE DEPUTY PRESIDENT: Mr Plant, whilst I am adjourning for a few minutes, you are still in the witness box so I will need to ask you not to talk about the matter with anyone. I will adjourn the matter for a few minutes.
<SHORT ADJOURNMENT [4.25PM]
<RESUMED [4.31PM]
THE DEPUTY PRESIDENT: Yes, Ms McIntyre?
<CROSS-EXAMINATION BY MS MCINTYRE [4.32PM]
PN359
MS McINTYRE: If the Commission pleases.
PN360
Mr Plant, your evidence about document AMWU8, which is the statement of the Commission. Am I correct in saying that the tenor of your evidence was that this document was not put up at the Clipsal workplaces?---My information is that it wasn't distributed by the company as was agreed here.
PN361
If I suggest to you that that document was, in fact, distributed by the company together with the document AMWU9, which is the memorandum from Clipsal dated 8 July 2004, would you disagree with me?---I would disagree with you.
PN362
And were you present at the work sites and observe that these documents were not put up?---I wasn't present at the work sites. They may have been put on a noticeboard, but they weren't distributed to the employees at the work site as we agreed.
**** ANDREW JOSEPH PLANT XXN MS MCINTYRE
And if I were to suggest to you that they were, in fact, distributed, you would disagree with me?---I would disagree with you. That is the information I have been given.
PN363
And you are doing that on information that you have received from members, I presume?---Yes.
PN364
THE DEPUTY PRESIDENT: Ms McIntyre, I am listening intently to your cross-examination, just as I have listened to Ms Smith's examination-in-chief. I am struggling with the relevance of the documents AMWU7 and 8. If you have got any other questions about them you had better tell them now.
PN365
MS McINTYRE: No, I don't, sir. I am leaving that topic.
PN366
Mr Plant, you gave evidence about the meeting on 18 January 2005. My copy seems to be missing two of the pages, so if you would excuse me just a moment. You have said that in your opinion the questions that were being asked didn't relate to the employment contract between Clipsal and Ms O'Malley, is that right?---That is correct.
PN367
If you could be shown a copy of AMWU7, which is the letter from Clipsal with questions attached. If I can take you to the list of questions and topics which is attached to that letter, and take you to questions under the heading at paragraph 4, Annual Leave. I suggest to you that those questions have nothing to do with workers compensation entitlements?---That is correct. But they were answered.
PN368
Yes. And I suggest to you that it is proper for an employer to ask questions about annual leave and, in particular, an application
for reinstatement of annual leave?
---Yes. I don't have a problem with that. That is why I allowed the questions to continue.
PN369
We then go on to the topic of the dog breeding business. Did you object to answering question 5.3, detail the activities associated with the dog breeding business?---On the basis that the company hadn't produced any policy or procedure that said it was a breach of company policy and procedure, yes, I did, and they have been asked twice. There is such a thing as natural justice.
PN370
Indeed, there is. Taking you to the next series of questions, the Royal Adelaide Show, 3 to 11 September 2004, do you agree that those were appropriate questions to be asked of an employee?---No, not necessarily.
**** ANDREW JOSEPH PLANT XXN MS MCINTYRE
Do you agree that they are questions about a contract of employment?---No, I don't. I don't agree they are questions about a contract of employment necessarily.
PN371
Can I put this to you. One of the allegations of misconduct in relation to Ms O'Malley which is outlined in the correspondence to her - - - ?---Which correspondence?
PN372
I will take you to the - in fact, it is outlined in this letter, 25 January, and if I take you to the second page under the heading Additional Matters, and third paragraph from the bottom - sorry, third paragraph from the top. It refers to a website, it talks about an accepted claim, Ms O'Malley's accepted claim for tenosynovitis, and refers to a question about:
PN373
Apparent ability to take an active involvement in this business, appears inconsistent with your stated incapacity for work over a lengthy period of time and your participation in a rehabilitation program. Please provide your comment on this.
PN374
Do you agree that that is an appropriate question to ask of an employee?---I just have to read it. I took me a while to find it.
PN375
Yes, certainly?---Again, I will say not necessarily.
PN376
Further down there is a list of dates you will see dot pointed, and I will take you to 6 September 2004, Royal Adelaide Show Day. If I tell you that was as Monday, a day when Ms O'Malley would normally be attending work, do you agree that it is appropriate for an employer to ask an employee questions about attendance at the Royal Adelaide Show on a day that she would normally have been expected to attend work?---But the question was answered. I also attended a meeting with the WorkCover investigation where all these questions have been answered.
PN377
Well, this isn't WorkCover, this is Clipsal, this is the employer asking questions. I ask again, is it appropriate for an employer to ask questions of a worker as to their whereabouts on a day that they would normally have been expected to attend work?---It may well be. But it is not necessarily appropriate for the other questions in there that don't relate to her contract of employment.
PN378
You terminated the interview at the question 6.6, and didn't respond to the additional questions, that is correct?---Well, I was - - -
**** ANDREW JOSEPH PLANT XXN MS MCINTYRE
Which Ms O'Malley didn't respond to the additional questions. Are you aware of a letter, and I can take you to exhibit C5, a letter from the AMWU dated 31 January 2004 to Clipsal. Have you seen that letter before?---No. I was aware that Mr Thomas was writing and corresponding with Clipsal. I haven't actually seen this letter before.
PN379
Perhaps you might take a moment to read it. Mr Plant, do you agree that the purpose of that letter is to inform Clipsal that Ms O'Malley will not respond to the further questions in the letter of 25 January?---I might. I just need to finish reading it please. That is so.
PN380
Do you agree that the purpose of that letter is to inform Clipsal that Ms O'Malley will not respond to the letter or the questions imposed in the letter dated 25 January 2005?---It looks more to me like if you have got questions to the medical practitioners, you would probably ask them.
PN381
So it would be a reasonable assumption that she is not going to answer them herself?---Well, it might be an assumption that you might make.
PN382
Mr Plant, you have referred to a WorkCover investigation, and I understand from your comment that you may have attended that interview with Ms O'Malley and an investigator instructed by WorkCover, is that right?---I did.
PN383
And when was that?---25 January.
PN384
THE DEPUTY PRESIDENT: Ms McIntyre, what has this got to do with the question of whether or not the employer is, in fact, entitled to suspend the employee?
PN385
MS McINTYRE: Sir, I am happy to leave the question. The purpose of the question was to establish that there is a WorkCover investigation.
PN386
THE DEPUTY PRESIDENT: Well, that may be the case. The question I am asking you is, what has that got to do with the suspension by the employer, and specifically the effect of this application, which would be to make that suspension illegal?
PN387
MS McINTYRE: Sir, it doesn't have relevance to that question, I agree. The reason I raise it is because there is a suggestion in the application that there is a - that Clipsal are in effect pursuing an investigation of a worker's compensation claim. It will be my submission that actually they are not, that there is a separate issue that WorkCover itself was investigating, and that Clipsal was pursuing its own disciplinary procedure. That was the - - -
**** ANDREW JOSEPH PLANT XXN MS MCINTYRE
THE DEPUTY PRESIDENT: Yes. Is that in dispute, Ms Smith?
PN388
MS SMITH: No, your Honour. Well, I will take that no further.
PN389
THE DEPUTY PRESIDENT: That issue is put to rest?
PN390
MS SMITH: Yes thank you, sir. Nothing further, sir.
PN391
THE DEPUTY PRESIDENT: Thank you. Ms Smith?
PN392
MS SMITH: I have no re-examination, your Honour. That is the applicant's case, and I request the witness be released, unless you have any questions.
THE DEPUTY PRESIDENT: Mr Plant, you are released from the witness box, thank you. If you can just leave that paperwork there, thank you.
PN394
THE DEPUTY PRESIDENT: Ms Smith, I am not really going to be in a position to take the matter any further today. I don't know whether that closes the case that you want - - -
PN395
MS SMITH: Yes, that is our case, your Honour.
PN396
THE DEPUTY PRESIDENT: I see. All right. Now, I propose to re-list the matter for 3.30 pm on Monday, 7 February.
PN397
MS SMITH: I have an arbitration matter, and I may still be held up. I don't know how long, it could be a full day. I am available Tuesday, Wednesday or Thursday next week.
PN398
THE DEPUTY PRESIDENT: The next date I could give you would be Thursday the 10th at 11.30.
PN399
MS SMITH: That is fine.
PN400
THE DEPUTY PRESIDENT: And Ms McIntyre?
PN401
MS McINTYRE: Sorry, sir, that was Thursday the 10th at 11.30?
PN402
THE DEPUTY PRESIDENT: At 11.30, yes.
PN403
MS McINTYRE: Yes thank you, sir, that would be fine.
PN404
THE DEPUTY PRESIDENT: So that the parties are in absolutely no doubt about it. I would expect then that Clipsal will present any evidence it wishes to present in relation to this matter. At the conclusion of that you, Ms Smith, will have the opportunity to sum up the arguments put by the union, and then that same opportunity will be extended to you, Ms McIntyre.
PN405
MS McINTYRE: Thank you, sir.
PN406
THE DEPUTY PRESIDENT: I will adjourn the matter on that basis.
<ADJOURNED UNTIL THURSDAY 10 FEBRUARY 2005 [4.47PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
LIAT ROBYN O'MALLEY, SWORN PN154
EXAMINATION-IN-CHIEF BY MS SMITH PN154
EXHIBIT #AMWU1 LETTER TO MS O'MALLEY, DATED 10/12/2004 PN169
EXHIBIT #AMWU2 PAYMENT ADVICE UNDER THE HEADING OF THE WORKCOVER CORPORATION, DATED 19/01/2005 PN181
EXHIBIT #AMWU3 LETTER FROM QBE MERCANTILE MUTUAL, DATED 17/01/2005 TO MS SMITH PN183
EXHIBIT #AMWU4 MEDICAL ASSESSMENT, DATED 18/05/2005 FROM DR SUZAANNE CARAGIANIS PN187
EXHIBIT #AMWU5 PRESCRIBED MEDICAL CERTIFICATE, DATED 24/01/2005 PN190
EXHIBIT #AMWU6 CORRESPONDENCE DATED 29/12/2004 FROM DR CARIAGIANIS PN195
EXHIBIT #AMWU7 CORRESPONDENCE TO MS O'MALLEY, DATED 25/01/2005 PN199
CROSS-EXAMINATION BY MS MCINTYRE PN201
EXHIBIT #C1 CORRESPONDENCE FROM QBE MERCANTILE MUTUAL, DATED 10/12/2004, INCLUDING A MEDICAL CERTIFICATE, DATED 18/11/2004 PN217
EXHIBIT #C2 CORRESPONDENCE TO MR BAINES FROM
MS O'MALLEY, DATED 16/12/2004 PN239
EXHIBIT #C3 CORRESPONDENCE TO MS O'MALLEY FROM CLIPSAL, DATED 22/12/2004 PN244
EXHIBIT #C4 CORRESPONDENCE TO MR BAINES, DATED 11/01/2005 PN252
EXHIBIT #C5 CORRESPONDENCE FROM AMWU TO CLIPSALDATED 31/01/2004 PN278
EXHIBIT #C6 DOCUMENT DATED 02/02/2005 PN318
RE-EXAMINATION BY MS SMITH PN319
THE WITNESS WITHDREW PN324
ANDREW JOSEPH PLANT, AFFIRMED PN325
EXAMINATION-IN-CHIEF BY MS SMITH PN325
EXHIBIT #AMWU8 STATEMENT ISSUED BY DEPUTY PRESIDENT O'CALLAGHAN ON 07/07/2004 PN340
EXHIBIT #AMWU9 CLIPSAL MEMORANDUM DATED 08/07/2004 PN356
CROSS-EXAMINATION BY MS MCINTYRE PN358
THE WITNESS WITHDREW PN393
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URL: http://www.austlii.edu.au/au/other/AIRCTrans/2005/357.html