C2005/1689, Transcript of Proceedings [2005] AIRCTrans 738 (24 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10980-1

SENIOR DEPUTY PRESIDENT DRAKE

C2005/1689

SALVATION ARMY EMPLOYMENT PLUS
AND
MR JOE DALMATI
s.99 - Notification of an industrial dispute
(C2005/1689)

SYDNEY

11.42AM, TUESDAY, 15 MARCH 2005

PN1

MR B NEILD: I seek leave to appear.

PN2

MR J GRANT: We have no objection, your Honour. I am from the State Chamber of Commerce and I appear as the agent for the Salvation Army Employment Plus and I appear with MR KELLY and MR YOUNG.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Neild, there being no objection, leave is granted.

PN4

MR NEILD: Thank you.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. And where are we up to?

PN6

MR NEILD: Well, since the last occasion there has been some correspondence between the parties with a view both to exchange of information as to allow the various positions to be understood and also with a view moving towards settlement. Unfortunately an agreement hasn't been able to be reached between the parties at this stage, either substantively or as to the next step forward in terms of Mr Dalmanti's potential return to employment.

PN7

THE SENIOR DEPUTY PRESIDENT: All right.

PN8

MR NEILD: The outstanding issue in that respect is whether or not his employer's request that he attend a further cardiologist be acceded to by Mr Dalmanti.

PN9

THE SENIOR DEPUTY PRESIDENT: Has he provided a report from his treating cardiologist?

PN10

MR NEILD: Yes, he has. There is a report dated 8 November last year and then a further updated report. That first report was based upon his treating cardiologist's initial treatment and observations of Mr Dalmanti and then there was a further brief report based on the subsequent examination of Mr Dalmanti in January of this year. Both of those reports state that Mr Dalmanti effectively that there was no reason for Mr Dalmanti not to return to work. I understand my friend says that they are somewhat ambiguous in their terms and on that basis, further examination by another cardiologist is required.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Grant, what is the Salvation Army's position? Dr Edwards is a specialist cardiologist, he says that as of at least 25 January that Mr Dalmanti was fit to return to his work. What is the employer's position?

PN12

MR GRANT: The letter does say that, your Honour, but we are concerned that initially the cardiologist had refused to or hadn't refused to, in his earlier letter he said, look, there is no need for me to read your duty statement, that's the earlier one in October, there's no need for me to read your duty statement but, look, he can go back to work. The second letter from the cardiologist still doesn't, we feel, answer one simple question. Mr Dalmanti has a set duties statement and a set function within the administration within the SAEP, he had a heart attack at some stage and without any real administrative place, this is all re-alignment to a new position, has been undertaking for some time work that is not consistent with his, what I call, substantive position within the SAEP. It has been, we say, moved aside in doing administrative functions that are minor with respect to the clerical functions. They are not, they are substantive and original role within the SAEP. A letter from the cardiologist that says he can continue doing the work he has been doing, we feel may refer to that position, not the substantive position that he should be carrying out and it is in that position we are concerned of following the duty or care perspective of the SAEP.

PN13

THE SENIOR DEPUTY PRESIDENT: Right. Do you have a statement of duties of the position that you expect him to return to?

PN14

MR GRANT: We do, yes.

PN15

THE SENIOR DEPUTY PRESIDENT: Could I see it?

PN16

MR GRANT: Yes, your Honour. Could I at this stage, tender perhaps?

PN17

THE SENIOR DEPUTY PRESIDENT: Just provide me with it for the moment, we are not into a hearing, we are only having a mention here. We don't need to mark any documents yet.

PN18

MR GRANT: Yes. And well, perhaps we would be wanting to explain in regard to this the issues under the employment services operations and some of the major activities there. Your Honour, I just point that out and if you wish to ask questions on that I am sure we can explain as to the role that it is undertaken.

PN19

THE SENIOR DEPUTY PRESIDENT: So the duties come under the heading Major Actions?

PN20

MR GRANT: Yes, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes. All right, what is the difficulty in listing the major actions and asking the doctor to confirm whether his letter of
25 January encompass an understanding that they were the actions for which he was to be considered fit?

PN22

MR GRANT: He has been asked to deal with those, lists have been provided to him on both occasions. It's just that we feel that the response is and has been far too - - -

PN23

THE SENIOR DEPUTY PRESIDENT: But you can fix that by a further letter, can't you? Thank you for your letter of 25 January, you said Mr Dalmanti is fit to undertake his previous employment, his previous employment and the employment to which he would be returned consists of these tasks, is he fit to return to those?

PN24

MR GRANT: Well, your Honour, I understand that from our position, as I have mentioned earlier, he said, I don't need to read your duty statements. Now, his concept of what the previous position was - - -

PN25

THE SENIOR DEPUTY PRESIDENT: Yes. I understand that but to fix it now, if you say that that is not clear from that letter, doesn't it simply require a letter to the treating cardiologist asking him the question I just outlined?

PN26

MR GRANT: It does. We have done that. Could I please mention that we have already done that twice explaining the situation to him, that's why at this stage we would prefer that Mr Dalmanti attended an independent cardiologist that we will pay for, the examination, and we will explain the situation to the independent cardiologist report.

PN27

THE SENIOR DEPUTY PRESIDENT: But have you done what I just suggested since 25 January?

PN28

MR GRANT: No, we haven't, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: Does your client have any objection to the employer asking that question of the cardiologist?

PN30

MR NEILD: No, no objection.

PN31

THE SENIOR DEPUTY PRESIDENT: Then in that case, I think that question should be asked directly before a decision is made as to whether it is reasonable to get an independent cardiologist but should Mr Edwards fail to answer the question asked of him, does your client object to an independent cardiologist being asked the question?

PN32

MR NEILD: No, no objection to that.

PN33

THE SENIOR DEPUTY PRESIDENT: Mr Grant, my view is that question should be directly addressed to the cardiologist immediately in the terms that I have outlined. If he fails to address them within a reasonable time, then Mr Dalmanti has indicated that he wouldn't object to attending a further consultant cardiologist. There would be no reason why you tentatively couldn't make such an arrangement and cancel it if Mr Edwards provides an answer.

PN34

MR GRANT: Could I therefore say that could we ask for a time limit of, I doubt that it could be done in two weeks or four weeks because at the present stage Mr Dalmanti has been on full pay from December.

PN35

THE SENIOR DEPUTY PRESIDENT: Well, the letter can be done today can it not?

PN36

MR GRANT: Yes, indeed.

PN37

THE SENIOR DEPUTY PRESIDENT: Well, why don't I provide a copy of this transcript to you and you can provide a copy of the transcript and you can send the letter today. If you don't have an answer within two week I will put the matter in for mention.

PN38

MR GRANT: Thank you, your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: In fact, I will put it in for mention now, yes.

PN40

MR NEILD: Do I take that to understand that if there is no response to the letter by Dr Edwards as opposed to no further report by Dr Edwards within a further two weeks.

PN41

THE SENIOR DEPUTY PRESIDENT: How is there a difference between a further report or a response?

PN42

MR NEILD: The response merely in the sense of saying, yes I have received your letter.

PN43

THE SENIOR DEPUTY PRESIDENT: That's all that's necessary. Yes, I don't mean - I mean answer, it's not hard.

PN44

MR NEILD: Yes. Thank you.

PN45

THE SENIOR DEPUTY PRESIDENT: And I don't think the employer should be paying for Mr Dalmanti to be off work if Dr Edwards won't answer the letter within a short time.

PN46

MR NEILD: Agreed, your Honour.

PN47

THE SENIOR DEPUTY PRESIDENT: If you have some trouble drafting the letter, Mr Grant, I will do it for you.

PN48

MR GRANT: I think the transcript, a provision of the transcript answers all the questions that we would have wanted to ask direct to the cardiologist. Thank you, your Honour.

PN49

THE SENIOR DEPUTY PRESIDENT: Tuesday the 29th for mention by telephone.

PN50

MR GRANT: What time, your Honour, afternoon?

PN51

THE SENIOR DEPUTY PRESIDENT: Don't care.

PN52

MR GRANT: Could I have the afternoon, 2 o'clock.

PN53

THE SENIOR DEPUTY PRESIDENT: I think we will arrange a telephone conference, saves you traipsing in here. We will arrange a telephone conference?

PN54

MR GRANT: We could do that, couldn't we, yes.

PN55

THE SENIOR DEPUTY PRESIDENT: All right, 2.30, 29 March. This is not a tricky matter, it's just a matter of saying these are the jobs, we want to ensure that you confirm that the job as described is the job to which he is fit, here are the duties. That is as short as it needs to be.

PN56

MR GRANT: Yes.

PN57

THE SENIOR DEPUTY PRESIDENT: For mention Tuesday 29 March at 2.30 by telephone conference transcribed. Mr Neild and Mr Grant if you provide your telephone contacts, it has to be a landline I am afraid, for that time to my associate, we will arrange the conference. Commission is adjourned.

<ADJOURNED UNTIL TUESDAY 29 MARCH 2005 [11.54AM]