C2006/3136, Transcript of Proceedings [2006] AIRCTrans 1262 (4 December 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16169-1

SENIOR DEPUTY PRESIDENT DRAKE
SENIOR DEPUTY PRESIDENT KAUFMAN
COMMISSIONER EAMES

C2006/3136

APPEAL BY ALLAN, JAMES
s.120 - Appeal to Full Bench
(C2006/3136)

MELBOURNE

10.04AM, MONDAY, 20 NOVEMBER 2006

Reserved for Decision

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning.

PN2

MR J ALLAN: Good morning, your Honours. My name is James Allan. Am I right, before I begin, in assuming this particular hearing is for oral arguments only?

PN3

SENIOR DEPUTY PRESIDENT DRAKE: For all?

PN4

MR ALLAN: Oral arguments only and permission for seek to appeal or is this the actual appeal process?

PN5

SENIOR DEPUTY PRESIDENT DRAKE: This is the appeal hearing that was set down after the telephone conference I had with you before. So this is the place at which you put all of your arguments. But for the moment we’re just going to take your appearance so I know that you’re here representing yourself and I’m just going to take the name of the gentleman appearing for Australia Post.

PN6

MR ALLAN: Okay.

PN7

SENIOR DEPUTY PRESIDENT DRAKE: Thank you.

PN8

MR J D'ABACO: I seek leave to appear on behalf of the respondent.

PN9

SENIOR DEPUTY PRESIDENT DRAKE: You’re Mr D’Abaco?

PN10

MR D'ABACO: Yes, your Honour.

PN11

SENIOR DEPUTY PRESIDENT DRAKE: Is that how you say it?

PN12

MR D'ABACO: Yes, your Honour.

PN13

SENIOR DEPUTY PRESIDENT DRAKE: Now, Mr Allan, this is a matter listed. The oral matter is listed to hear your arguments on the appeal today. I think on the last occasion that I heard from you you said that all of the matters that you wanted to say were in the papers you’d supplied.

PN14

MR ALLAN: Yes.

PN15

SENIOR DEPUTY PRESIDENT DRAKE: And I therefore didn’t require you to produce an appeal book or any other matters. You’re able to rely on the written material that you provided on the last occasion.

PN16

MR ALLAN: Thank you for that, yes.

PN17

SENIOR DEPUTY PRESIDENT DRAKE: And you have some difficulty with the process today, is that so? Is that what you were about to say before when I stopped you? You should stand, Mr Allan.

PN18

MR ALLAN: Thank you. I have actually come here today to give one only, one only argument that is actually irrefutable proof that I have complied with all of my employer’s requests.

PN19

SENIOR DEPUTY PRESIDENT DRAKE: Okay. And is that an argument you want to put now?

PN20

MR ALLAN: Yes it is, your Honour. Thank you.

PN21

SENIOR DEPUTY PRESIDENT DRAKE: Yes. But you also want to rely on the materials that you filed before, don’t you?

PN22

MR ALLAN: I do, but I - - -

PN23

SENIOR DEPUTY PRESIDENT DRAKE: You’re not abandoning those?

PN24

MR ALLAN: No, but I will provide you with the existing material for which I contend.

PN25

SENIOR DEPUTY PRESIDENT DRAKE: All right.

PN26

MR ALLAN: Your Honours, I submit that the decision was flawed inasmuch as Acton SDP had overlooked, misinterpreted and misconstrued evidence and further that she had failed to take into account some material considerations. I accept there are several instances of error, however I intend at this time to detail one only, this being a pertinent issue and in fact the very crux of the matter. This example pertains to a requirement of my employer that I submit to a medical examination. Acton SDP in bringing down her decision had determined that I had displayed a degree of unwillingness - her word unwillingness - to the provision of a signed medical release authority to my employer and that this supposed unwillingness had constituted a valid reason in part, and the greater part, to terminate my employment.

PN27

I had never at any time refused or was unwilling to comply with my employer’s requirements in that area and the few letters that I refer from the state manager, the state manager of human relations, pertaining to that issue I would like to read out to the court today. Those few letters and my subsequent responses to those letters will show without doubt that I had intended to comply with all of their requirements.

PN28

SENIOR DEPUTY PRESIDENT DRAKE: They’re letters, Mr Allan, that you showed to Acton SDP are they not?

PN29

MR ALLAN: I’m sorry, I beg your pardon?

PN30

SENIOR DEPUTY PRESIDENT DRAKE: Are they letters that you showed to Acton SDP?

PN31

MR ALLAN: Yes. They were submitted in evidence, yes.

PN32

SENIOR DEPUTY PRESIDENT LACY: And are they the ones that Acton SDP set out in the reasons for decision?

PN33

MR ALLAN: Yes they are, your Honour. If you don’t mind?

PN34

SENIOR DEPUTY PRESIDENT DRAKE: No, you can read them. We were just making sure, Mr Allan, that you were not providing new evidence. That’s a different matter all together.

PN35

MR ALLAN: No, your Honour.

PN36

SENIOR DEPUTY PRESIDENT DRAKE: You can refer to the old evidence if you’re not - - -

PN37

MR ALLAN: I rely entirely on the existing evidence.

PN38

SENIOR DEPUTY PRESIDENT DRAKE: All right. Please proceed.

PN39

MR ALLAN: If I may, your Honour. Just bear with me one moment please. The state manager of human resources had occasion to write to me three times. I believe that that actually constitutes three warnings as they’re required to do under the Act in order to terminate someone’s employment. I responded to those letters three times and always, your Honours, in the affirmative. And if I may I would like to provide you each with a copy of these letters. If you don’t mind my Scottish accent, your Honours, I'll read:

PN40

I refer to Mr Peter Lunt’s correspondence of 4/5/05 and 9/5/05 informing you that because you failed to permit Australia Post to confirm your medical restrictions with an Australia Post nominated doctor, Australia Post was unable to confirm your medical restrictions and therefore unable to identify suitable redeployment within the restrictions of your medical condition. Consequently you were directed on sick leave from 5/5/05 pending confirmation of your medical restrictions by an Australia Post nominated doctor.

PN41

The source of my whole complaint, your Honours, was that these medical restrictions were never, ever a detriment to me doing my work. I had continued to be employed as a postal delivery officer from 1989 up until the time I was I was forcefully laid off by my employer. However in that same letter Mr Lunt refers to clause 3 of the Australia Post principal determination. It provides that:

PN42

If an employee is found to be inefficient or incompetent or unable to discharge or incapable of discharging the duties applicable to the employees position, the employee may be: a) Transferred to another position having the same classification (in the same locality or elsewhere), (b) Reduced to a lower position and salary, or (c) Retired from the Corporation.

PN43

As I previously stated I was always able to do my work. In this particular instance I would claim that this is academic anyway. The reason I was dismissed from the corporation is because ostensibly I had refused to comply with their request with regard to a medical examination. I never had and I will come to that. I responded to that letter:

PN44

Dr Mr Draper, I am in receipt of your written ultimatum/directive dated
12 December 2005 and ask where, because of Mr Peter Lunt’s correspondence dated 4/5/05 and 9/5/05 do you feel you are justified in issuing this ultimatum. Where for example does my current situation differ from that of say September 1995, April 2000, December 2001 etc., and if you do feel you are justified why did you fail to apply your so called Australia Post Principal Determination at those times. My medical restrictions did not differ, nor has my medical condition changed during any and all of the time span forementioned and as you well know, in all of that time I was required to, and did perform, all of the duties of a Full Time Postal Delivery Officer. This requirement of Aust. Post was in spite of, and contrary to the restrictions contained in the Work Cover Certificates I had supplied.

PN45

Your Honours, I have continued to supply at their insistence WorkCover certificates or work certificates of capacity from 1999 up until the time I was laid off. Not 1993 when I was first injured. At that time I supplied one only certificate after my first doctor’s visit and again in 1995 one only. My employer had never, ever required that I supply certificates up until a decision by the Administrative Appeals Tribunal awarding me compensation for my injury. Up until that time Australia Post had not accepted liability. It was only after I - reluctantly I may add - was placed on worker’s compensation. I actually queried it at the time.

PN46

I asked my employer I’m doing my work, my normal job, why are you putting me on worker’s compensation? They never, ever responded to my questions. They insisted that I needed to supply these certificates of capacity in order under section 19 of the Act to pay my wages. I would also argue that this was not necessary as I was doing my work. I had continued to do my work as a postal delivery officer. For the record there is a letter you mentioned, my failure to permit Australia Post to confirm my medical restrictions with an Australia Post nominated doctor. I have never failed, your Honour, the requirements of my employer and that they can’t bring up the insinuation.

PN47

For the record, it was your so called Facility Nominated Doctor who failed to permit confirmation of my medical restrictions.

PN48

I attended this doctor, your Honour. Sat in the surgery. It was a bulk billing surgery down in Knox 20 miles on the outskirts of Melbourne. Nowhere near my place of work or home. I sat there for two hours, over two hours as a matter of fact, until this doctor called me into his surgery. I had with me at that time a letter asking him are you prepared to accept that any decision he may come to or any recommendation he may make he would accept responsibility for that bearing in mind that the decision she would make and the recommendations he would make affected my employment. He refused to accept that. He in fact got up and walked out of his own surgery.

PN49

He left me sitting there. I waited there for probably, I don’t know, five minutes. He still didn’t come back so I left. My employer then had insisted that it was I who did not accept an examination from this doctor. That was never the case, your Honours. I have actually had a dozen of these examinations that I have never, ever rejected any of them. Why would I reject this one? Why would I have gone down there and sat there for two hours if I was going to reject it? The whole thing begs belief. Anyway, be that as it may - - -

PN50

COMMISSIONER EAMES: Do you argue that you didn’t at any stage indicate that you didn’t want the results passed on to Australia Post?

PN51

MR ALLAN: No. No, that’s not quite correct, sir. Their conditions of employment requires that the employee furnish a medical certificate or information. That’s all I was attempting to do. I said to this doctor I will pay for your report and after perusal of the report - I'll read it here - I will supply it to my employer. That’s all I said.

PN52

COMMISSIONER EAMES: All right.

PN53

MR ALLAN:

PN54

This entire F.F.D. farce will be resolved in another place, but in the meantime I will continue to play your game -

PN55

And I use that term game because it is a game. It’s a game that they, Australia Post, use to terminate the employment of their employees.

PN56

However before providing a medical release authority will you please forward to me copies of precisely that medical and other information which you would intend to supply the examining doctor and a written explanation as to why you have chosen this time to apply your ultimatum when you did not do so during any of the past times?

PN57

Mr Draper responded to that letter on 3 January 2006:

PN58

I refer to your letter of 21/12/05, in particular your advice that you require copies of all medical information which would be supplied to the Australia Post nominated doctor before providing a medical release authority. I bring to your attention that you were advised both verbally during a meeting on
19/4/05 -

PN59

I wasn’t, but anyway:

PN60

- and subsequently in writing of the procedure for requesting medical information.

PN61

Your Honours, up until this particular time I have always asked my employer to provide me copies of those documents they were providing these examining doctors and up until that time these requests were never referred, never. This particular time I get a letter from an employee of Australia Post saying look, if you want this information you will have to go through the Freedom of Information. This would have taken months and could not have had any bearing on these medical examinations. This was the reply I got from my employer:

PN62

If you want this information get it through the Freedom of Information.

PN63

Up until then they never have - - -

PN64

SENIOR DEPUTY PRESIDENT LACY: Sorry, can I just clarify, Mr Allan, the times before that you speak about that you had been provided with the information. When did that occur? When had you previously presented for - - -

PN65

MR ALLAN: Yes. The precise dates, your Honour, I really couldn’t tell, but it was about half a dozen times over say a five or six year period.

PN66

SENIOR DEPUTY PRESIDENT LACY: And you had asked that you see the medical report before?

PN67

MR ALLAN: Not the medical report, no. The medical information that was in existence they were going to supply the facility nominated doctor. They had my medical reports from the specialist doctors. They were providing these specialist reports to the facility nominated doctor I might add without my authority, but we’ll come to that. They were providing these doctors with these reports and all I had asked is would you please inform me precisely that which you are going to provide these doctors. This was my right. This was my medical report. I had asked for it.

PN68

SENIOR DEPUTY PRESIDENT LACY: And are you saying, sorry, up until January 2006 they use to provide you with that information?

PN69

MR ALLAN: At all times. They had never failed to do so until this time.

PN70

COMMISSIONER EAMES: Sorry, that wasn’t the question I heard then, was it? The information that you were requesting on this occasion you say in the past was given to you?

PN71

MR ALLAN: Always given, yes sir. Always. Without no question. I was simply provided. I’d say will you please provide me with this information and they’d send it to me.

PN72

COMMISSIONER EAMES: Okay.

PN73

SENIOR DEPUTY PRESIDENT DRAKE: Remind me, Mr Allan and perhaps I should not need reminding, I apologise. At the time of the examination were you on sick leave?

PN74

MR ALLAN: I was on enforced sick leave your Honour, yes.

PN75

SENIOR DEPUTY PRESIDENT DRAKE: Enforced sick leave?

PN76

MR ALLAN: Yes.

PN77

SENIOR DEPUTY PRESIDENT DRAKE: That was not sick leave that you had applied for? You’d been referred on sick leave by your employer?

PN78

MR ALLAN: Yes.

PN79

SENIOR DEPUTY PRESIDENT DRAKE: In May, that’s right isn’t it?

PN80

MR ALLAN: Yes.

PN81

SENIOR DEPUTY PRESIDENT DRAKE: Yes.

PN82

MR ALLAN: They had forcibly took me out on sick leave and forcibly without my knowledge acquired my sick leave credits. They had been doing this for - I had quite a substantial amount of sick leave and recreational leave credits.

PN83

SENIOR DEPUTY PRESIDENT DRAKE: All right, thank you. I thought that was the case, but I was just confirming it because you said you were - there was just something you said that I thought maybe you had returned to work or something just before this medical, but you were still on sick leave. Yes, thank you.

PN84

MR ALLAN: Yes. Never allowed back, your Honour. It was actually they put me on unpaid sick leave for 12 months. The second paragraph of this letter from Mr Draper:

PN85

Further, as previously explained to you in my letter of 12/12/05, if Australia Post is unable to confirm -

PN86

He repeats himself:

PN87

- your medical restrictions -

PN88

Et cetera, et cetera:

PN89

- we will apply clause 3 principal determination -

PN90

And give you the flick. That’s really what he was saying. I responded to that letter on 6 January 2006:

PN91

I am in receipt of your letter of January 3rd 2006 and wonder why you found it necessary to threaten this employee with retirement from the corporation by a set date if I did not comply with your demands. You would know from my letter to you 23rd December 2005 that I have no objection to your insistence that I submit to yet again another of your so called Fitness for Duty assessments, and upon receipt of the appointed time date and place will duly attend.

PN92

I mean, I can’t - I know my language is principally Scottish, but that seemed very clear to me. Give me the date, time, place, name of your doctor and I will go. I can’t see where there’s a refusal there, but anyway we’ll go on:

PN93

In your arsenal of determinations, awards, conditions of employment etc, there is nowhere -

PN94

And there is nowhere:

PN95

- of which I am aware, whereby I am required to provide authority to exchange Medical, and/or any other information before a Fitness for duty assessment can proceed, and to this end I will not provide an authority other than in this instance only.

PN96

At that time I was fully prepared to provide an authority on a one only one at a time basis and I had very good reasons for that, your Honours. Australia Post in the past take these authorities and use them adding, adding forever more and I will provide evidence to that effect.

PN97

I will not provide an authority other than in this instance only and authority the Australia Post nominated doctor to provide a medical report to Australia Post.

PN98

That’s also very clear. I can’t think of anything that’s any clearer than that. I will provide you with the authority for my medical information to be given to you. This should not be a deterrent to the assessment taking place and I refer you to electronic mail from a Mr Dean White to Alexandra Lipinski on Friday,
7 November 2002. This email, your Honours, from Mr Dean White expressly states that a medical assessment can proceed even though an authority was not given. This is from management in Australia Post throughout their system. It’s an email going to all these department managers. It is not necessary for an employee to sign an authority before these assessments can proceed.

PN99

So here we have this situation not only is it not necessary, but I’ve agreed anyway, I’ve agreed you can have my authority, have my report. Tell me the name, date of the doctor and I’m off. I'll go. Can’t think of anything clearer, your Honour.

PN100

I refer you to paragraph 4 your letter January 3rd 2006 and inform you that we do not yet live in a Police State and your use of the word ‘unconditionally’ is entirely inappropriate, I also inform you that co-operation is not a one-way street.

PN101

This man had actually in this letter said to me you unconditionally sign this medical release authority or we will give you the flick. Unconditionally sign this authority. I objected to that. My Scottish brain objected to that and I said to him I’m not prepared to sign anything unconditionally.

PN102

You keep quoting clause 3 from Australia Post Principal Determinations as though this somehow is not the actual matter in dispute and in spite of the fact that this very matter is presently before the Human Rights and Equal Opportunity Commission.

PN103

I had prior, on the advice of certain people, taken this complaint to the Equal Opportunities Commission. But 15 or 16 months later it’s still waiting the time to get off their desk.

PN104

SENIOR DEPUTY PRESIDENT LACY: On what basis did you go, on age discrimination?

PN105

MR ALLAN: Age discrimination and on a number of things. But they hadn’t got to the matter.

PN106

SENIOR DEPUTY PRESIDENT LACY: All right.

PN107

MR ALLAN: Acton SDP had asked, you know, what I was prepared to do at that time and I said I’m happy to confer the Industrial Relations Commission and I cancelled the matter through Equal Opportunities.

PN108

All of the above notwithstanding, and assuming that you will apply common sense, you need only to provide the date, time and place of your so called fitness for duty assessment and as stated earlier I will duly attend.

PN109

Here we go once again. I have said in writing give me the date, time, place, et cetera, et cetera and I’m away, I'll do it. On 11 January Mr Draper wrote back:

PN110

I refer to your letter of 6/1/06 in which you consented to attend a Fitness for duty medical assessment and sign a limited medical release authority -

PN111

He’s now admitting it I have consented to this. But he brings in the word limited. I don’t know what he means by this limited. I was prepared to sign an authority. The authority would have enabled them to get my medical information. If that’s limited then I don’t know what he means:

PN112

- authorising the Australia Post nominated doctor to release the report of the fitness for duty medical examination findings to Australia Post.

PN113

I keep saying this but it actually flabbergasts me. I don’t know how clear I can be.

PN114

I bring to your attention that the purpose of the medical release authority, a copy of which was provided to you in my letter of 3/1/06, is also to enable the Australia Post nominated doctor to correspond with your treating doctor/specialist.

PN115

Your Honours, if I may I'll provide you with this medical release authority. It was given to me blank. I must add here that never before, ever before, were these medical release authorities ever blank. It is actually the normal practice for the Australia Post delegate to fill in the name of the doctor and the patient took that authority with him to the doctor for signing in his surgery. That has always occurred in the past. But here this time it’s blank. This authority is plural. It’s got little s’s there in brackets. Your medical release doctors. There are no time constraints. There are no constraints on doctors. They could use that authority forever more. They could go back into my childhood with that authority. And I refused on principle to sign that.

PN116

No one should be required to sign a blank authority and that’s all I had said to them. Give me the name of the doctor, put it on the authority and I'll duly comply. Never anything else other than that. If you wish, your Honours, I can supply you with any amounts of these authorities that do have the names of the doctors on it. They’re always filled in before the patient gets it, always. And I questioned, I queried their motive in this particular regard and I was ignored.

PN117

COMMISSIONER EAMES: Were they asking you to have this filled in?

PN118

MR ALLAN: They’re asking me to fill in my part of it. That was blank.

PN119

COMMISSIONER EAMES: Yes.

PN120

MR ALLAN: They were saying to me fill in your doctor or doctors in plural, send it back to us which was never the way it would happen. Never. It was always the other way around. They would fill in their doctors and send it to the patient. In this particular case they wanted the patient to fill in their doctor, which I had not objected to. All I wanted to do is I'll put in my doctor, you put in your doctor. Restrict it to that doctor, not doctors and put a time constraint on it, put a date there somewhere.

PN121

COMMISSIONER EAMES: Could you not have done that?

PN122

MR ALLAN: I could have, yes. But I'll show you why I didn’t, your Honours, now that you bring it up. This is a letter dated 24 February 1997 from a Rosie Theotoratis a claims minder of Australia Post to my treating specialist neurology doctor.

PN123

COMMISSIONER EAMES: Has this got any relevance to the matter that was being dealt with at the time?

PN124

MR ALLAN: You’ve asked me a question, your Honour, and I’m telling you why. This letter went to this particular doctor saying Mr Allan - I'll just this. Australia Post had asked this doctor to provide them some particular information. This particular doctor said look, I will only do so if I have an authority to do so. This Ms Theotoratis writes back and says:

PN125

I refer to your letter dated 19 February ’97. The purpose of this letter is to advise you that according to the information available on file, Mr Allan’s compensation file, authority to release medical information has not at any stage ever been revoked by Mr Allan.

PN126

In other words if you give them an authority and you don’t take particular steps to revoke it at some time they will use it forever more. That’s something I again on principle objected to. Not that, your Honours, I’ve got to make something very clear. I have never objected to going to see a doctor. I am the first to admit that I have an impairment. Possibly it might be of some assistance if I tell you what that impairment is. I was knocked off my push bike during the course of my work. I had a few bangs and grazes, but anyway these injuries had manifested themselves into a form of myoclonic epilepsy.

PN127

This epilepsy, I don’t know how I could quite put it, it’s actually a form of jerking, much like a hiccup, a serious hiccup. It occurs mostly whilst I’m in an inactive state. It can though occur while I’m active, but mostly whilst I’m inactive like, for example, sitting watching telly. I’m sitting watching the TV and I’m relaxed, these jerks may occur. The specialist doctors had decreed that I had effectively 10 per cent whole body impairment. That 10 per cent, your Honours, did not, had not, will not and never will have any effect or bearing on the ability of this person to do the work as a postal delivery officer. Interestingly though and the Administrative Appeals Tribunal came down in my side and I was then required, or they had required, that I be paid under the Workers Compensation Act, it was only then that they insisted I supply them with WorkCover certificates of capacity that had certain work restrictions on them.

PN128

One being no work requiring rapid eye movement, no sorting or throwing. They had varied and they had differed over the years depending on the particular doctor and their terminologies. But fundamentally the issues were not to ride a bike, and this was purely a precautionary thing. It was never that I couldn’t ride a bike. I did always ride a bike up until the workers compensation claim. The restriction was not to ride a bike and not to do work requiring rapid eye movement. My employer had inferred that because I was not riding a push bike I was therefore not performing the inherent requirements of my work. That is absolute ..... post delivery officers deliver mail by push bike, motor bike, walk round, boat, jet, plane and one case they have them by camel.

PN129

If a postal delivery officer in central Australia can’t deliver his mail by camel does that mean he can’t do his work? He’s not performing his nominal position? When asked about supplying these certificates they’ve stated not to ride a push bike my employer, and rightly so, and took me on a round in the Balwyn Deepdene area pushing a perambulator. Pushing a perambulator performs the function of delivering the mail. I was doing all the other work, the only difference being suddenly my nominal position was postal delivery officer in brackets (push bike). Never, ever before, but up it comes this time. Postal delivery officer - push bike. Not postal delivery officer - push bike, camel, motor bike, air. Postal delivery officer - push bike.

PN130

That was the first they knew that that was a restriction and utilised that to state that I was not performing my work. I always performed my work. I threw off, set up and delivered mail. That’s all a postal delivery officer is required to do. The rapid eye movement part if I may just come to that. ..... but I think it’s important. Postal delivery officers and is stated in the evidence in the transcript, their eyes are focused, they’re looking at mail. There is no rapid eye movement. There is movement, no rapid eye movement. They’re focused. They’re reading envelopes or they’re placing mail in slots. They’re focused when they’re doing that.

PN131

So that is an ambiguous restriction. So here we have these two ambiguous restrictions: no rapid eye movement, not to ride a push bike, none of which would affect the function of a postal delivery officer. It’s important that I clear that at this stage.

PN132

SENIOR DEPUTY PRESIDENT LACY: Was there any evidence that delivery by perambulator was a general mode in delivery?

PN133

MR ALLAN: Yes there is, your Honour. I can supply you with a letter. When I ..... without going to the whole case - - -

PN134

SENIOR DEPUTY PRESIDENT LACY: No, that’s all right. There is evidence you say that - - -

PN135

MR ALLAN: Yes. I got a letter from the facility manager at Deepdene where I was transferred to from North Balwyn in that facility which we produced stating that the round that I had been delivering in North Balwyn because of the distance from Deepdene to North Balwyn you will be taken off the push bike and done by motor bike and I would be placed closer to the Deepdene delivery centre delivering mail by trolley up the shops on Whitehorse Road. That’s in writing. So here we have, if you wish, my nominal position postal delivery officer part push bike part walk around. But anyway, there. And I did have, if you wish, I could give you a copy.

PN136

SENIOR DEPUTY PRESIDENT LACY: No, that’s all right.

PN137

MR ALLAN: 16 January I have written back to Mr Draper:

PN138

I am in receipt of your letter dated 11/01/06 and once again find myself perplexed at the continuous stream of misinformation contained in this, and other correspondence emanating from Australia Post.

PN139

Australia Post had admitted - I'll read it to you:

PN140

If, as you have admitted, Aust. Post is unable to confirm my medical restrictions without the need to consult with my treating doctors, surely then, confirmation from these doctors of my medical restrictions without the need to attend one or your so called facility nominated doctors would be sufficient.

PN141

My treating doctors had all the medical information. It was entirely unnecessary, in fact it was a bogus thing, that I should go to one of their facility nominated doctors. In fact it might be important that I deal with these. Australia Post, if there is injured or any other entitled employee, if they wish to terminate that employee’s employment one of the keys in their arsenal, one of the guns they have, is to send that employee to one of their facility nominated doctors, their doctors paid by them and obviously influenced by them, send them to one of those doctors, get a medical report, use some part of that medical report to terminate their employment.

PN142

Whatever else these people may tell you that is precisely the reason they have these facility nominated doctors and no more.

PN143

COMMISSIONER EAMES: That’s a pretty broad brush, but anyway.

PN144

MR ALLAN: Yes, I know. I'll say it forever more. But without reading all this the last paragraph of this letter 16 January:

PN145

The stipulations contained in my letter 6/1/06 still apply, however, upon receipt of the criteria which you would require I will undertake to have my treating doctor provide (on a one only, one at a time basis) to Aust. Post a fitness for duty assessment based on that criteria.

PN146

So again in another way I said all right, I'll go do your medical examination. I'll get my doctor - this is really the only way we can do it - I'll get my doctor to supply you with a medical report.

PN147

SENIOR DEPUTY PRESIDENT LACY: But do you acknowledge that your employer was entitled to also have you undergo an examination by one of their doctors?

PN148

MR ALLAN: Yes at all times and I had never, ever objected to it. Ever. I objected to it in principle and I still do, but I always, always attended these examinations, albeit reluctantly and eventually, but I did.

PN149

COMMISSIONER EAMES: And you agreed to the report being forwarded to Australia Post?

PN150

MR ALLAN: Always. It’s academic if you don’t. But at all of those times I would have taken with me a properly filled out medical release authority. This one time a blank document. So here we have on three separate occasions, or actually four separate occasions, I have agreed to my employer’s demand that I submit to a medical examination by one of their facility nominated doctors. Four separate times I have agreed to this, albeit sometimes conditionally, but never disagreed. Mr Draper, the facility HR manager at the time, completely ignored it in each of all these form requests and sent me a notice of incapacity retirement. They terminated my employment on the basis that I had refused - I had refused - to be medically assessed. I had never refused, ever.

PN151

In all that time since 1993 when I was injured I had never refused the reasonable or actually any request of my employer.

PN152

COMMISSIONER EAMES: That was in signing the release form, the final release form.

PN153

MR ALLAN: I never refused up until - it’s a blank form, your Honour. This form is blank.

PN154

COMMISSIONER EAMES: But just looking at the correspondence of
19 January it appears to indicate that you’re required to attend a medical examination conducted by an Australia Post nominated doctor and you say yes I agree to that and sign a medical release authority enabling Australia Post nominated doctor to contact your nominated medical practitioners and provide a report and you didn’t do that.

PN155

MR ALLAN: Well, they never gave me any such authority. That authority has any number of - - -

PN156

COMMISSIONER EAMES: But you didn’t give them an authority to do that.

PN157

MR ALLAN: Give them an authority?

PN158

COMMISSIONER EAMES: Yes. That’s what they’re saying. Because you failed to give them an authority to do that - - -

PN159

MR ALLAN: Yes, but the point, your Honour, is that the authority they asked me to provide contains information other than my treating doctor.

PN160

COMMISSIONER EAMES: Yes.

PN161

MR ALLAN: It’s their doctors as well.

PN162

COMMISSIONER EAMES: But that was the point they were making and used it as the ground to terminate you.

PN163

MR ALLAN: I said fine, fill in your doctors and I'll sign it.

PN164

COMMISSIONER EAMES: Yes.

PN165

MR ALLAN: I contend, your Honours, that Acton SDP in her deliverance did not fully take this particular incident into account. I had never at any time refused to comply with my employer’s wishes in this regards. I will admit that after 10 years I was there, you know, getting a bit reluctant and not making it particularly easy for them, but I had never, ever refused to comply with their requests and I state that in this particular incidence Acton SDP had erred in not taking this into consideration. Thank you very much.

PN166

SENIOR DEPUTY PRESIDENT DRAKE: We’re going to take a short adjournment, 20 minutes.

<SHORT ADJOURNMENT [10.45AM]
<RESUMED [11.08AM]

PN167

SENIOR DEPUTY PRESIDENT DRAKE: Yes, Mr D’Abaco.

PN168

MR D'ABACO: Thank you, your Honour.

PN169

SENIOR DEPUTY PRESIDENT DRAKE: Mr D’Abaco, you’ve put in fairly extensive submissions. The Commission might have some questions, but apart from that are they the matters that you rely on?

PN170

MR D'ABACO: These are the submissions dated 26 October, your Honour.

PN171

SENIOR DEPUTY PRESIDENT DRAKE: Yes.

PN172

MR D'ABACO: Yes, your Honour, they are the submissions of the respondent.

PN173

SENIOR DEPUTY PRESIDENT DRAKE: We’ll expect you speak to them shortly and not repeat them.

PN174

MR D'ABACO: I don’t intend to repeat them and I don’t intend to speak to them other than to answer any questions which the Bench may have. What I propose to do, your Honour, is to focus in what is, in my submission, the essential thrust of her Honour’s decision and to address what has fallen from Mr Allan today in which he alleges to be the principal error or errors which accompany that decision. And as I apprehend Mr Allan’s arguments and submissions what he has put to the Bench is that her Honour erred in exercising her discretion to determine that it was reasonable for Australia Post to require Mr Allan to undertake a medical examination and that it was reasonable for Australia Post to require
Mr Allan to enable that examination to be undertaken to sign a medical release authority.

PN175

What I refer to there, your Honour, is essentially paragraph 46 of her Honour’s decision. Now, Mr Allan has put submissions to you today and also the written material which he has provided which, in my respectful submission, really amount to a re-arguing of the case rather than an application of the proper principles on appeal which is to allege or to argue that her Honour fell into error in deciding as she did. We’ve referred in our written submissions to the relevant authorities. Ultimately the test for this Bench, and I put this obviously with respect, is not to determine whether her Honour was wrong in her decision, was not to determine whether it would have decided differently to her Honour, rather it is a matter of determining whether on the evidence which was adduced before her Honour her finding was reasonably available to her.

PN176

And if the Bench is satisfied on the basis of that evidence that that verdict was reasonably available to her then in my respectful submission the appeal should be dismissed and as we’ve outlined in the written submissions in all the circumstances we say that there are no significant issues which have been raised by the appellant to indeed grant the leave or grant the issuing of leave to appeal.

PN177

SENIOR DEPUTY PRESIDENT DRAKE: Mr D’Abaco, do you say that the medical arranged with the facility nominated doctor was for the purpose of assessment?

PN178

MR D'ABACO: Yes we do, your Honour.

PN179

SENIOR DEPUTY PRESIDENT DRAKE: Yes. In that case why is an authority required? An authority is required when you seek a report from the applicant’s treating doctor. Of course that is the case. But in my experience if the assessment is arranged with a facility nominated doctor or with a specialist of any kind independent for the purpose if assessment only, arranged and paid for by the employer, I don’t understand why the authority of the applicant is required at all.

PN180

MR D'ABACO: Well, in my submission, your Honour, the authority is required of the patient and in this case it is the patient or the applicant, Mr Allan because ultimately there is a relationship which is created between the medical examiner and the patient, in this case Mr Allan.

PN181

SENIOR DEPUTY PRESIDENT DRAKE: It’s not a relationship with treating doctor and patient though. It’s a relationship of a person being sent for assessment by an employer nominated doctor. There is no relationship of doctor and patient which requires an authority. Mr D’Abaco, I’ve spent many years in work of this kind and employers in workers compensation claims either during the course of the claim being met or at the end of that arrangement, often arranged for applicants for compensation or persons being assessed before or after to have medical examinations with specialists crossing a wide variety of fields.

PN182

The authorisation, the requirement for that medical, arises out of the employment relationship. The entitlement to arrange it arises out of the, as I understand it, the employer’s entitlement to form its own view about the fitness of the employee really at any time reasonably within the employment. But I don’t understand and it’s not in my experience that there’s any requirement for the provision of information from that doctor to the employer that there’s no requirement for permission for that to move across because there’s no confidential arrangement or relationship between the worker or the doctor.

PN183

The doctor is employed by the employer for this specific purpose of providing an assessment. It’s that assessment that’s being paid for by the employer that is provided. As far as I understand it there is no obligation to provide an authority. Now, I’m telling you that that’s my view so you can show me otherwise because you’ll have to if you want to get up on that point. It’s not the only point in the matter, but you’ve got it out there and I thought I’d tell you what I think about it.

PN184

MR D'ABACO: No. I’m indebted to your Honour for conveying to me the view. Your Honour, did your Honour have before you a copy of the medical release authority in issue?

PN185

SENIOR DEPUTY PRESIDENT DRAKE: The blank one? The one that
Mr Allan - - -

PN186

MR D'ABACO: Well, the authority, yes.

PN187

SENIOR DEPUTY PRESIDENT DRAKE: That Mr Allan just provided to me?

PN188

MR D'ABACO: Yes.

PN189

SENIOR DEPUTY PRESIDENT DRAKE: Yes. Yes, I do.

PN190

MR D'ABACO: You will notice, your Honour, that the medical release authority actually provides authorisation of two matters. The first matter in the first paragraph, and this is obviously the point which your Honour has addressed to me, is the provision of the medical report by the medical practitioner who is conducting the fitness for duty examination and the provision of that report which comes out of the examination to Australia Post. I'll come back to that. The second paragraph is the provision of an authority for that doctor, the doctor who’s going to undertake the medical examination, to actually correspond with in this case Mr Allan’s treating medical practitioner.

PN191

SENIOR DEPUTY PRESIDENT DRAKE: That’s a different purpose,
Mr D’Abaco. I don’t join issue with you on that. If anyone wants to get a report off the treating doctor the authority of the applicant is required. The proposition you’ve put was that an authority was required from the applicant to get a report off the doctor that was arranged for assessment.

PN192

MR D'ABACO: Well, your Honour, Australia Post out of an abundance of caution has provided a medical release authority which covers both issues. Now, there was no evidence before her Honour to indicate that there would be any instance in the past when, for example, individuals has refused for medical reports to be provided to Australia Post. Commissioner Eames asked a question of
Mr Allan, however, asking whether he had ever expressed unwillingness. He said no I hadn’t. With all due respect to Mr Allan that was not the case and it wasn’t the case on the evidence put before her. If your Honour turns to - - -

PN193

SENIOR DEPUTY PRESIDENT DRAKE: Mr D’Abaco, I don’t want to do that at the moment. I want you to focus on the matter I’m asking you about. In this matter it may be the case that the authority was provided for both purposes, but I want to understand what your position is, whether if in different circumstances I understand what the proposed position is about the doctors that they arrange for an assessment. Had they not been able to get the reports or they got reports and had a query about them, had they arranged an independent specialist other than a facility nominated doctor who I think is usually a general practitioner, had they arranged an examination of a specialist general physician for instance, sent the medical reports that they had in their file to that general physician and said please provide us with a report, in that circumstance do you say they would have needed the authority of the applicant to get a report off that doctor as long as it didn’t involve writing to the applicant’s doctor?

PN194

MR D'ABACO: No it would not, your Honour.

PN195

SENIOR DEPUTY PRESIDENT DRAKE: Thank you. That’s all I wanted to know.

PN196

MR D'ABACO: However can I just add to that please, your Honour? The history of this matter was that the appellant had expressed a clear unwillingness for the provision of any reports to Australia Post notwithstanding the conditions of his employment as stipulated in the Award which provided that such reports could be obtained. Commissioner Eames asked the question of Mr Allan during the course of his submissions and I refer the Bench to paragraph 18 of her Honour’s decision where she extracts or produces a letter which had been provided to
Mr Allan to a Dr Solimon when there was an attempt to have one of these examinations conducted in April 2005. In the second paragraph of that letter
Mr Allan wrote:

PN197

This letter is to advise that under no circumstances are any reports conclusions to be furnished to my employer or anyone else without my first sighting them and without my express written consent.

PN198

So while I accept what your Honour has put to me in the sense that as a pure matter of law it may not be necessary for the authorisation of the employee to be obtained in respect of the provision of the report to the employer, in a circumstance such as this the provision of such or the seeking of an authority is in my submission a reasonable and proper course of action for a prudent employer, otherwise such an employer may well find itself liable to criticism by employees or those representing them to say well you can’t simply get these reports from medical practitioners unless the patient or the employee, as is the case here, has agreed to it.

PN199

SENIOR DEPUTY PRESIDENT DRAKE: Well, you can’t get the report from the applicant’s treating doctors, but you can get it from your own facility nominated doctor. But what you’re complaining of here is a different matter,
Mr D’Abaco, and it’s not one I’m raising as an issue, is that the applicant specifically refused that permission and in the absence of that refusal in the ordinary course you’d be entitled to just request it and get it, wouldn’t you? It’s the refusal that you’re complaining about?

PN200

SENIOR DEPUTY PRESIDENT LACY: As I understand it the applicant wouldn’t submit to an examination or wouldn’t submit to an assessment without some form of indemnity from the doctor, from the treating doctor.

PN201

MR D'ABACO: That was clearly the case at the time of Dr Solimon in April in terms of the medical examination which the respondent sought to have undertaken during the period of December ’05, January ’06. It was the refusal to provide the authority which essentially prevented that medical examination proceeding because the facility nominated doctor would not be able to obtain relevant material, relevant background in addition to his or her own examination of
Mr Allan to be able to determine whether in fact Mr Allan was fit for all the normal duties of a postal delivery officer or indeed fit for alternate duties which had been provided to him since, on the evidence, as early as 1997.

PN202

SENIOR DEPUTY PRESIDENT DRAKE: Mr D’Abaco, what was the speciality of the facility nominated doctor?

PN203

MR D'ABACO: That was not the subject of evidence, your Honour. I can
not - - -

PN204

SENIOR DEPUTY PRESIDENT DRAKE: Perhaps you can ask those instructing you.

PN205

MR D'ABACO: The facility nominated doctor?

PN206

SENIOR DEPUTY PRESIDENT DRAKE: Yes.

PN207

MR D'ABACO: Well, there was no evidence as to who that facility nominated doctor was going to be. There had been no appointment on the material.

PN208

SENIOR DEPUTY PRESIDENT DRAKE: I see. But you hadn’t arranged a specialist examination?

PN209

MR D'ABACO: I'll see if I can obtain instructions if your Honour pleases.

PN210

SENIOR DEPUTY PRESIDENT DRAKE: Thank you.

PN211

MR D'ABACO: Just one moment. My instructions, your Honour, that the actual appointment with a particular practitioner or specialist had not been arranged. Arrangements were still being made, as it were, to secure the appellant’s attendance at such a meeting before those arrangements would be finalised.

PN212

SENIOR DEPUTY PRESIDENT DRAKE: Mr D’Abaco, why was it necessary to arrange an appointment with an independent facility nominated doctor or for the facility nominated doctor given that you had a report with some restrictions indicated and you had a filing report that had some different restrictions? Why was it necessary to arrange a medical examination to clarify that matter? Wouldn’t in the ordinary course be a matter of writing to the treating doctor and saying there’s an inconsistency here, can you clarify it? The treating doctors reports had been accepted up until that date. A difference arises in the level of incapacity certified for it, why wouldn’t you just write and ask the question?

PN213

MR D'ABACO: Your Honour, the last medical report and I use the term report as distinct from a certificate, but the last medical report in respect of the appellant’s medical condition was dated early 2003 on the evidence and there had not been any report as such produced or provided.

PN214

SENIOR DEPUTY PRESIDENT DRAKE: Exactly, that’s right. Why couldn’t the employer have written the applicant’s treating doctors and asked the question? Why wouldn’t that be a satisfactory matter of resolving it? You’ve got a query, you’ve got somebody working, you’ve got a query about their condition, why wouldn’t you ask the applicant’s treating doctor?

PN215

MR D'ABACO: Well, at the time when this exercise was undertaken, your Honour, in a period December ’05, January ’06 the appellant had not been working for some seven months. What the employer was endeavouring to do, and in my submission this is a reasonable course for an employer to do, is to commission a medical practitioner familiar with the requirements of Australia Post and particularly the requirements of postal delivery officers to obtain a report from such an individual to ascertain either the worker’s fitness for the particular position or alternatively to provide an outline of alternate duties which are available and in my submission - - -

PN216

SENIOR DEPUTY PRESIDENT DRAKE: Yes. That might be the case,
Mr D’Abaco, but what I’m asking was when this inconsistency arose was in
May 2005. Wasn’t that the question?

PN217

MR D'ABACO: Yes.

PN218

SENIOR DEPUTY PRESIDENT DRAKE: So the inconsistency comes in and then he’s stood down.

PN219

MR D'ABACO: Well, the inconsistency actually arose before that, your Honour. It arose in March of 2005.

PN220

SENIOR DEPUTY PRESIDENT DRAKE: Yes. So there’s an inconsistency in the level of incapacity for work or the restrictions for duties, whatever you want to call it.

PN221

MR D'ABACO: A new restriction was actually imposed, your Honour.

PN222

SENIOR DEPUTY PRESIDENT DRAKE: A new restriction.

PN223

MR D'ABACO: Yes.

PN224

SENIOR DEPUTY PRESIDENT DRAKE: And you stand him off duties.

PN225

MR D'ABACO: No, he wasn’t stood off duties. The evidence of Mr Lunt which was provided in his statement was that further alternate modified duties were provided to Mr Allan for the period March through to April so that arrangements could be made for a medical examination to be undertaken.

PN226

SENIOR DEPUTY PRESIDENT DRAKE: Yes. Well, my question is and we’ll go back to that, is why at that stage would you need to arrange a medical examination instead of writing to the applicant’s treating doctor for a report since you didn’t have one from 2003? You don’t have one from the applicant’s treating doctor from 2003 and inconsistency in the limitations of his restrictions on his ability to perform his duties arises in March, you give that consideration, you transfer him to some alternate duties in the meantime so it can be examined, but you didn’t write for a report from the applicant’s treating doctor. Who else is likely to be better informed about that inconsistency or about that change? Why is that so?

PN227

MR D'ABACO: The reason it is so, your Honour, is because in my submission the employer is entitled to require an employee if there is any concern about the employee’s capacity to perform duties and it’s because of a concern for the employee, your Honour. That’s what we’re essentially dealing with. A concern for the employee’s wellbeing to require an employee to undertake a medical examination with a practitioner - - -

PN228

SENIOR DEPUTY PRESIDENT DRAKE: Mr D’Abaco, I don’t quibble with your entitlement to have that examination. What I’m asking you is why as part of the preparation for that examination even, as a part of ordinary investigation of the applicant’s fitness for work you wouldn’t seek an up to date report from the applicant’s treating doctor? That’s the question. Why would that not be a reasonable course of action in these circumstances? You have an unfit worker, a treating doctor from whom the certificates have been accepted for a number of years. In the ordinary course you say you don’t have a report from 2003. When the inconsistency arises in 2005 why wouldn’t you seek a report from the treating doctor? If you don’t know the answer to that question I don’t expect you to answer it. I’m not asking you to justify the matter. I want to know if there’s some reason that you’re aware of. If there isn’t, there isn’t.

PN229

MR D'ABACO: There is no reason of which I am aware of, your Honour, and I can’t point to any of the evidence before her Honour which can cast any light upon the question that you asked. What I’m endeavouring to do if you would just bear with me one moment ..... your Honour, can I ask your Honour to turn to page 468 of the appeal book and in particular I’m taking your Honour to the exhibits R2, R3 and R4.

PN230

SENIOR DEPUTY PRESIDENT DRAKE: This is in volume 2?

PN231

MR D'ABACO: Yes it is, your Honour.

PN232

COMMISSIONER EAMES: They’re the certificates of incapacity?

PN233

MR D'ABACO: Yes that’s correct, Commissioner. These are the three certificates of capacity which preceded the provision of the certificate of capacity provided by Mr Allan in March 2005 which different from these which it had the new restriction of no throwing and no sorting off. If you look at those certificates of capacity, your Honour, you will note that they have been provided by three different treating practitioners. The first of those a Dr Cayetano in the bottom left hand corner, your Honour, the second of those a Dr Sivapalan and a third of those a Dr Solana.

PN234

SENIOR DEPUTY PRESIDENT LACY: They’re all from the same medical centre though.

PN235

MR D'ABACO: Yes they are, but obviously from different practitioners or different medical practitioners, your Honour. Now, my recollection is, and I can’t put it any more highly than that, is that Mr Allan’s impairment was obviously one which it went over many years in terms of his employment in 1995 through to 2006 and during that course there were a great many medical practitioners who on his behalf provided certificates of capacity. In my submission to require an employee to submit to a medical examination at the nomination of a practitioner by the employer is a reasonable course of action particularly if as in this particular case the employer is confronted with, on its face, at least three different medical practitioners.

PN236

I haven’t looked at the fourth certificate and I will do so in one moment to see whether the fourth certificate was perhaps provided by a different medical practitioner. If the Bench will bear with me.

PN237

SENIOR DEPUTY PRESIDENT DRAKE: I don’t know that there is another, a fourth medical certificate.

PN238

MR D'ABACO: Yes, there was. This was the one that showed the new restriction. It was attached, your Honour, as an exhibit from memory attachment PL4 to the witness statement of Mr Lunt. If the Bench will bear with me. Yes, it’s at page 607 of the second volume of the appeal book. It’s from Dr Cayetano. That is one of the medical practitioners who has provided a certificate in the past. The other aspect is this, your Honour. As part of requiring an employee to undertake a medical examination which a practitioner nominated by Australia Post part of that process actually sees the doctor appointed by Australia Post communicating with the treating practitioner, or in this case treating practitioners, obtaining from the treating practitioner presumably details about the worker’s current medical condition, current restrictions and so forth so that the doctor who commissions the report, the doctor who provides the report, commissioned by Australia Post is cognisant of all that information when providing a report to Australia Post.

PN239

And in my submission that being the case whilst I can’t directly answer your Honour’s question why was a medical report not sought from the treating medical practitioner, what I can say is that clearly on the evidence there was more than one treating practitioner, at least three in the 12 month period that we’re talking about, and that in any event the medical release authority provided by Mr Allan would enable communication with those doctors so their views could also be obtained and in my submission that is a proper and a prudent course of action for an employer, in this case Australia Post, to adopt.

PN240

SENIOR DEPUTY PRESIDENT DRAKE: But not essential to obtain a report from a qualified doctor. You’ve got a facility nominated doctor here and you can correct me if I’m wrong, my knowledge of the panel is that apart from some occupational health and safety training and some knowledge of the duties, they’re mostly general practitioners. There would be nothing preventing Australia Post arranging specialist examinations if they have concerns about somebody working and qualifying that doctor.

PN241

MR D'ABACO: No.

PN242

SENIOR DEPUTY PRESIDENT DRAKE: Providing them with the three, in fact, reports, putting the problem to them about inconsistency in the final restrictions and duty provided and asking them questions if there is any reason why the worker couldn’t continue. That would be in the ordinary course for an employer in those circumstances.

PN243

MR D'ABACO: Well, that would be possible, your Honour, but in those circumstance the course of action which was taken by the employer was a completely proper one in my submission, not objectionable. Can I turn to the attack, as it were, upon her Honour’s decision which is being put by - - -

PN244

SENIOR DEPUTY PRESIDENT LACY: Sorry, just before you move on from there, Mr D’Abaco. What was the concern or what was the evidence of Australia Post’s concern about this change that occurred in the certificate of capacity?

PN245

MR D'ABACO: Yes. The evidence is to be found in the statement of Mr Lunt which in the appeal book, your Honour, it’s exhibit R28 at page 599.

PN246

SENIOR DEPUTY PRESIDENT LACY: Yes.

PN247

MR D'ABACO: I withdraw that, your Honour. If your Honour would just bear with me for one moment. The evidence was, your Honour, that prior to the medical certificate of March ’05 being provided Mr Allan had been performing alternate duties which including sorted and throwing off which are part of the process he is involved of the delivery of mail performed by the postal delivery officers. Those particular duties however were not the subject of the medical restrictions contained in the three preceding certificates, however that certificate was then provided which clearly indicated that one of the restrictions was no throwing, no sorting off and it was that new restriction which, as it were, led to Australia Post providing further alternate modified duties and then seeking to have Mr Allan examined by, in that case, Dr Solimon in the period of April 2005.

PN248

That was so found by her Honour in her decision and her Honour footnotes the relevant materials commencing at paragraph 9 and in particular paragraph 13 of the decision where her Honour notes that this was a new restriction.

PN249

SENIOR DEPUTY PRESIDENT LACY: In volume 2 of her Honour’s appeal book it is incomplete. There are pages missing between - - -

PN250

SENIOR DEPUTY PRESIDENT DRAKE: 585 and 601 are missing.

PN251

MR D'ABACO: I apologise for that, your Honour, and let me hand you up my copy.

PN252

SENIOR DEPUTY PRESIDENT DRAKE: That’s all right. I'll have them copied from one other of the members.

PN253

MR D'ABACO: So that’s the evidentiary basis for that, your Honour.

PN254

SENIOR DEPUTY PRESIDENT LACY: Thank you.

PN255

MR D'ABACO: If we come then to the correspondence which was passing between the parties in the period of December ’05 and January ’06. Now,
Mr Allan has submitted in his written material and has submitted to you today that at all times he was willing to attend a medical examination and that at all times he was willing to sign or provide a medical release authority although he criticised its terms. I want to deal first with the issue of his willingness to provide the medical release authority. If the Bench accepts that it was a proper course of action for Australia Post to obtain information about Mr Allan’s current medical condition by, inter alia, corresponding with his treating medical practitioner or practitioners it would be necessary for such an authority to be obtained from Mr Allan.

PN256

That, in my submission, must be accepted. To do that an authority was required of Mr Allan. This was made quite clear in the first letter as it were which set off the chain of correspondence which is unlined in paragraph 25 of her Honour’s decision. I won’t repeat the letter, I won’t repeat its contents, but the final paragraph asks Mr Allan to reconsider attending a medical examination and to provide the required medical release authority. Mr Allan responded to that letter by way of letter dated 21 December 2005 which is extracted at paragraph 26 of her Honour’s decision.

PN257

In the final paragraph Mr Allan does not simply say yes I will provide a release authority, he takes issue with it and asks for copies of precisely what information will be provided, a written explanation why you’ve chosen to apply this ultimatum, why didn’t you do so in the past. Well, in the past up until October 2003 Australia Post could not do so and indeed did not do so because Mr Allan was in receipt of weekly compensation benefits pursuant to Workers Compensation, Comcare, and it had no ability to do so and in fact would have been in breach of its legal obligations had it sought to do so. That deals with that point.

PN258

At paragraph 27 her Honour sets out the response of Australia Post, its letter dated 3 January, where Australia Post endeavours to deal with the issues which have been raised by Mr Allan and in the penultimate paragraph, number 2, asks that he sign the enclosed or the attached medical release authority, the purpose of which first is to authorise the doctor to provide a medical report to Australia Post obviously mindful of the comments or the questions which you asked of me earlier, your Honour, in that regard in respect of that observations, but secondly:

PN259

To authorise your nominated doctors to exchange information on your medical condition with Australia Post doctor for the purpose of determining your fitness for duty.

PN260

In my submission a reasonable request and answering the queries which Mr Allan had raised. In his next letter dated 6 January the third paragraph - - -

PN261

SENIOR DEPUTY PRESIDENT LACY: Just before you go to the third paragraph, the second paragraph he clearly states that he will attend and submit to the assessment.

PN262

MR D'ABACO: Yes and what the employer said, your Honour, is that for that assessment to be able to continue or take place an authority will be necessary to be obtained, at least in relation to the provision of the medical material. And you will recall, your Honour, that when we went back to the Solimon incident, again that was the subject of evidence and her Honour extracted the relevant correspondence, her Honour concluded that on the evidence the appellant had yes attended the examination, but it didn’t proceed because he demanded of the medical practitioner that he sign documentation and he refused to provide the medical release which the doctor required (a) to correspondence with Mr Allan’s treating practitioners and (b) under Australia Post policy to actually provide any report to Australia Post. So the medical examination didn’t proceed and couldn’t proceed.

PN263

It’s all well and good for Mr Allan to say I was always prepared to do this, I was always prepared to do that, but the history which was outlined by her Honour in the decision had been a process of extreme reluctance until the end, in my submission, obstructionism. Always pushing a bit harder, push harder, pushing a bit harder. I think Mr Allan indicated in his submissions earlier today that after 10 years he was becoming more and more reluctant.

PN264

SENIOR DEPUTY PRESIDENT LACY: Sorry, are you looking at paragraph 3?

PN265

MR D'ABACO: Yes. Paragraph 3 of the letter, and this is set out in paragraph 27 of her Honour’s decision, he says:

PN266

I will not provide an authority other than this instance only.

PN267

That is yes I will provide it, but they’re the words. Did he provide an authority? No. The letter he had received from Mr Draper provided the authority which simply required Mr Allan to fill in his name and more particularly the details of his treating medical practitioners. Now, that was clearly material and knowledge within Mr Allan’s province. He failed to do so notwithstanding the previous letter which it set out why the authority was required and explaining for what purpose the authority would be utilised.

PN268

COMMISSIONER EAMES: What do you say to the point that Mr Allan made that this authority that he was being asked to sign was too broad?

PN269

MR D'ABACO: We say that that submission is untenable, Commissioner, and we say that by reference to the terms of the actual medical release authority itself. If you look at the medical release authority the first is that any inquiries can only be limited to the treating practitioners nominated by Mr Allan and that’s clear from those spaces where “my treating practitioners are as follows”. They’re the only people who can be contacted.

PN270

To obtain details -

PN271

I’m reading from the first paragraph concerning:

PN272

I needed compensation, rehabilitation or medical fitness files and to forward that to my practitioners for the purpose of determining my medical fitness for duty.

PN273

It’s for a specific purpose, Commissioner, and in my submission a reasonable purpose for an employer to actually ascertain whether an employee is fit to do the job for which they’re employed.

PN274

COMMISSIONER EAMES: He says there’s no time span placed on that, there’s no limitation on it at all. What do you say about that?

PN275

MR D'ABACO: Well, we say that there is an implied limitation for the purpose of determining my medical fit for duty. It’s the purpose which is being ascertained by the employer at the time of the conduct of this particular examination and that’s certainly the view which had been taken by Australia Post, Commissioner. Because there was evidence from Mr Allan during the course of the proceeding that he had provided these authorities in the past. If Post didn’t believe that it required such an authority on each particular occasion why would it be sending these authorities at this time? It could rely on past authorities.

PN276

But it didn’t do that because it takes the view that the purpose must be the particular examination which is now being undertaken and that if, for example, in 12 months time another examination needs to be undertaken then again one of these medical release authorities must be sought from the worker.

PN277

COMMISSIONER EAMES: Right, thank you.

PN278

MR D'ABACO: The second paragraph, Commissioner, just to finish that off is also in my submission an authority of a very, very limited scope.

PN279

To exchange information of my medical condition for the purpose of determining my medical fitness for duty.

PN280

It must be the worker’s current condition, not their childhood ailment or what’s happened 20 or 30 years ago in the past to determine the worker’s, or employee’s in this case, current medical condition. I was about to turn your Honour to the next letter provided to Mr Allan from Australia Post. This is a letter dated
11 January extracted at paragraph 29 of her Honour’s decision. There in the second paragraph Mr Draper says very clearly the purpose of the authority is also to enable Australia Post to correspond with your treating doctor and specialist. He then sets out in the next paragraph the very reasons why it was necessary because there had been a change in the medical restrictions contained in the certificates which had been submitted by Mr Allan in the nine month period preceding march 2005 and what Australia Post needed to do was to get a report so they could ascertain if he wasn’t fit for his current position whether suitable and safe duties elsewhere could be obtained.

PN281

So they were trying to do the utmost to accommodate Mr Allan so as to enable him to continue to remain in gainful employment, in fact to return to gainful employment because for that period of time he’d been not working for some seven months.

PN282

Therefore I’m providing you with a final opportunity to complete and sign the enclosed medical release authority.

PN283

It’s not pleading with the employee, but it’s not a long way from it. Endeavouring to do what it can to, as it were, get the report and see whether there is work available. Mr Allan declined to that letter on 17 January. He didn’t sign and return the enclosed medical release authority and indeed in the second paragraph he appears to recant the earlier willingness to actually undertake an examination where he says well, why don’t I just get one of my own reports? In my view becoming increasingly unwilling to comply with what, in my submission, is a reasonable request from the employer. He does say in the third last paragraph:

PN284

Upon receipt of the criteria which you would require I will undertake to have my treating doctor provide a fitness for duty assessment.

PN285

But his previous willingness to attend a medical examination of a doctor nominated by Australia Post is now gone and on my submission the finding of her Honour at paragraph 46 where she says that it was reasonable for the employer to require that Mr Allan undertake a medical examination and provide an authority and that his failure to do so is unreasonable was a finding and a conclusion which was reasonably open to her Honour at first instance. Her Honour had the benefit of over four days of hearing in this matter and it was a finding and a conclusion which, in my respectful submission, should not be disturbed on appeal.

PN286

Your Honour raised an issue with Mr Allan during the course of his submissions in relation to whether at the time of his undertaking the medical examination or being required to undertake medical examinations were that he was on sick leave. Your Honour, Drake SDP, it was unclear to me whether your Honour was asking Mr Allan and it wasn’t clear from his response whether you were asking him in relation to the period of time in April, I’m sorry, when he was required or asked to undertake a medical examination by Dr Solimon or whether you were asking him in relation to the period of December ’05, January ’06?

PN287

SENIOR DEPUTY PRESIDENT DRAKE: December, January, ’05.

PN288

MR D'ABACO: Yes.

PN289

SENIOR DEPUTY PRESIDENT DRAKE: But just to make sure it’s my understanding that he was on sick leave from May 2005 onwards, is that correct?

PN290

MR D'ABACO: Well, he wasn’t on paid sick leave. He had actually exhausted his sick leave entitlements so that when he was directed not to attend for duty because Australia Post was unable to get a report or ascertain the level of his restrictions or whether they could re-deploy him or provide gainful employment for him, he simply went home without pay because he didn’t have any sick leave credits. In approximately September, October of ’05 the anniversary of his appointment clocked over so he was credited with a period of some three weeks sick leave simply upon the anniversary of his commencement date, but that was then exhausted so that by the time of these letters he wasn’t on paid sick leave because he didn’t have any sick leave entitlement nor was he in receipt of any workers compensation benefits because those benefits had ceased by operation of law back in October 2003.

PN291

And I’m mindful, your Honour, of a decision which your Honour handed down earlier this year when your Honour considered again what we submit are very different circumstances, the practice of Australia Post requiring employees to undertake fitness for duty - - -

PN292

SENIOR DEPUTY PRESIDENT DRAKE: Remind me.

PN293

MR D'ABACO: It’s a decision, your Honour. If your Honour bear with me.

PN294

SENIOR DEPUTY PRESIDENT DRAKE: I don’t have it with me.

PN295

MR D'ABACO: A decision of 8 May.

PN296

SENIOR DEPUTY PRESIDENT DRAKE: Yes. Do you want to hand it up?

PN297

MR D'ABACO: It was a matter which her Honour Acton SDP actually raised with me during the course of closing submissions and additional submissions were filed on behalf of Australia Post and they’re in the appeal book, your Honour.

PN298

SENIOR DEPUTY PRESIDENT DRAKE: Yes, I remember.

PN299

MR D'ABACO: At pages 683, 684 where her Honour asked for submissions you made on the point and they were made.

PN300

SENIOR DEPUTY PRESIDENT DRAKE: Yes and you say about that?

PN301

MR D'ABACO: I’m sorry?

PN302

SENIOR DEPUTY PRESIDENT DRAKE: And your submission about that is?

PN303

MR D'ABACO: The submission was that those circumstances which were outlined by your Honour had no bearing upon the circumstances here. It was a completely different case. There was no workers compensation claim on foot. Those payments had ceased. Mr Allan was not in receipt of sick leave. His sick leave entitlements had been exhausted. In particular if you go to the Award the Award entitles Australia Post to require an employee to undertake such an examination if they’ve been absent through illness for a continuous period exceeding 13 weeks, which had occurred here, or had been absent through illness and the authorising employee of Post, believes that the employee is not fit to resume duty which given what had transpired during 2005 with the new medical certificate produced, the unwillingness of the inability of Post to obtain a report, was more than ample justification, in my submission, for Post to require such a report to be obtained.

PN304

SENIOR DEPUTY PRESIDENT DRAKE: Had there ever been any independent question raised though, I mean independent of the medical report that had arrived with Mr Allan’s work?

PN305

MR D'ABACO: No, your Honour.

PN306

SENIOR DEPUTY PRESIDENT DRAKE: So he’d been working, no supervisor had had any difficulty with his capacity to perform his duties, then a report arrives with an inconsistency in it between one GP’s report and another and then he’s off?

PN307

MR D'ABACO: It goes beyond that, your Honour. The evidence which was provided before her Honour was that the alternate make up duties which had been provided to Mr Allan from 1997 in 2004 it essentially ceased to exist because of a restructuring of operations in the relevant area. And this is the evidence of
Mr Avram. So that as it were yes, the duties that he was provided with Mr Allan performed competently and diligently and Australia Post has never taken issue with that and it wasn’t an issue before her Honour.

PN308

SENIOR DEPUTY PRESIDENT DRAKE: So the certificate from the GP is the point at which all this difficulty arises? We get an inconsistent report - - -

PN309

MR D'ABACO: Well, it’s not simply a certificate from a GP with respect, your Honour. Those are medical certificates of capacity. They’re very, very important because if an employer were not to - - -

PN310

SENIOR DEPUTY PRESIDENT DRAKE: I didn’t say it was unimportant. I said it was a certificate from a general practitioner, his treating general practitioner. Of course it would be important. But that is the motivator, not any independent complaint by Australia Post as to incapacity for his duties and you have the applicant sitting there saying I am fit contrary to the certificate.

PN311

MR D'ABACO: Well, yes. He is saying I am fit contrary to continuing to provide medical certificates by his own treating practitioners which showed he’s unfit.

PN312

SENIOR DEPUTY PRESIDENT LACY: What was the nature of the alternate duties he was doing?

PN313

MR D'ABACO: What he was doing, your Honour, was sorting mail using what was referred to as a non-conventional frame, a Namco frame which is a piece of equipment decommissioned by Australia Post.

PN314

SENIOR DEPUTY PRESIDENT LACY: That’s the picture of it - - -

PN315

MR D'ABACO: No, that actually wasn’t - well, there are a number of pictures of different frames, but it was a rather V sort frame which is utilised. V sort frames are used, in the evidence, was that they are used because they’re more efficient and employees could work more quickly on them than the older frames. He was also provided with a limited run in terms of delivery points as compared to other postal delivery officers so that the volume of mail which Mr Allan was delivering was much less than that provided or delivered by other postal delivery officers. And Australia Post continued to provide these duties for many, many years until (a) the medical condition deteriorated in terms of the additional restriction and also then a restructuring of the operations which meant that those alternate duties which had been provided were absorbed in other positions.

PN316

SENIOR DEPUTY PRESIDENT LACY: But in any event he could no longer do the mail sort?

PN317

MR D'ABACO: I’m sorry, your Honour?

PN318

SENIOR DEPUTY PRESIDENT LACY: In any event he could no longer do the mail sort after that certificate.

PN319

MR D'ABACO: Well, no throwing and no sorting and no throwing off. That’s correct, that could no longer be performed either. And it ought to be borne in mind that certainly from 1999 the evidence is that four hours of work was provided each day because that was all the work that was available within the relevant delivery centre taking into account Mr Allan’s medical restrictions provided by his treating medical practitioners. Your Honour, Lacy SDP, asked a question of Mr Allan during the course of his submissions whether the provision or delivering of mail by a perambulator was a normal method. Certainly it is a method of delivery of mail which is performed by postal delivery officers, but the evidence of Mr De Costa, who was the manager of the relevant delivery centre, was that they were made up duties which were created and provided specifically for Mr Allan as a result of his medical restrictions.

PN320

SENIOR DEPUTY PRESIDENT DRAKE: There are some groups, are there not, delivery rounds that are perambulator rounds in the ordinary course?

PN321

MR D'ABACO: There certainly may well be, your Honour. It might be, for example, in shops or in inner city certain areas.

PN322

SENIOR DEPUTY PRESIDENT DRAKE: At least it’s a perambulator delivery.

PN323

MR D'ABACO: Yes, but that sort of evidence wasn’t the evidence that was adduced before her Honour. The particular delivery centre was essentially one which saw mail delivered over wide areas and the way in which mail would be delivered conventionally was by way of motor cycle. Just bear with me one moment. Your Honour, the only other matter and it comes back to, I think, the first issue that you raised with me in relation to whether in fact it was necessary for an authorisation to be obtained from the employee in relation to the medical report provided by the Australia Post examiner to be provided to Australia Post.

PN324

An issue which has been raised with you by my instructors is that Post takes the view that given the requirements under the Privacy Act, perhaps out of an abundance of caution, but it takes the view that such an authorisation ought to be obtained from the employee.

PN325

SENIOR DEPUTY PRESIDENT DRAKE: Ought to and has to is a different question.

PN326

MR D'ABACO: I accept that, your Honour.

PN327

SENIOR DEPUTY PRESIDENT DRAKE: And I think, and it’s deemed it’s my position and not necessarily the other members of this Bench, is that it is not required.

PN328

MR D'ABACO: Yes. I accept your Honour’s view. Unless the Bench has any further questions those are the submissions of the respondent.

PN329

SENIOR DEPUTY PRESIDENT DRAKE: Mr Allan, do you wish to respond? You should confine yourself when doing so, Mr Allan, to not repeating your case. I’m only saying this because you’re unrepresented and not because I suspect that you might. Counsel frequently do that, so it’d be no criticism of you.

PN330

MR ALLAN: I'll try my very best, your Honour.

PN331

SENIOR DEPUTY PRESIDENT DRAKE: Yes. Just a question as you’re responding to the matters raised by counsel and in the shorter manner as you can reasonably do so. Thank you.

PN332

MR ALLAN: If I may, your Honour, if I can give you some examples of the normal medical release authorisations.

PN333

SENIOR DEPUTY PRESIDENT DRAKE: I really don’t know - do you have any objection to that, Mr D’Abaco?

PN334

MR D'ABACO: I do if it comprises new evidence. I don’t know what Mr Allan is proposing to put on.

PN335

SENIOR DEPUTY PRESIDENT DRAKE: Why don’t you show Mr D’Abaco these?

PN336

MR ALLAN: I’m perfectly happy to give him copies. This isn’t new evidence, your Honour.

PN337

SENIOR DEPUTY PRESIDENT DRAKE: No, don’t address them, ask about them. Just show him what they are and we’ll see if he has any objection. It may not be a matter about which he has concerns.

PN338

MR ALLAN: These documents are filled out by the - - -

PN339

SENIOR DEPUTY PRESIDENT DRAKE: Mr Allan, you have to wait.

PN340

MR D'ABACO: Your Honour, I have not sighted this document before. Certainly it was not the subject of evidence tendered before her Honour.

PN341

SENIOR DEPUTY PRESIDENT DRAKE: Thank you.

PN342

SENIOR DEPUTY PRESIDENT LACY: Is it controversial in any way?

PN343

MR D'ABACO: It’s probably not controversial, your Honour. All I note is it appears to be in relation to a compensation claim dated back to 1998.

PN344

SENIOR DEPUTY PRESIDENT DRAKE: All right. Well, if it’s not controversial is there any reason why we shouldn’t accept it off the applicant - - -

PN345

MR D'ABACO: I’m not pressing the objection, your Honour.

PN346

SENIOR DEPUTY PRESIDENT DRAKE: All right.

PN347

MR ALLAN: I simply prefer these , your Honour, to try and - and I'll get it particularly the procedures Australia Post would normally use. They would fill these documents out before requiring the patient taking them to the doctor. In my 20 years with Australia Post I have never seen anything done any differently other than this latest event. Mr D’Abaco had raised the fact that my sick leave entitlements had been exhausted and I got the feeling that the inference was that I had utilised the sick leave entitlements because I was sick. That was not the case. When I reached age 65 workers compensation under the law had ceased and my employer then without my knowledge or consent - it’s all in the transcript - without my knowledge or consent acquired my sick leave credits as a means of paying my wages.

PN348

SENIOR DEPUTY PRESIDENT LACY: A means of paying what sorry?

PN349

MR ALLAN: Paying my wages.

PN350

SENIOR DEPUTY PRESIDENT LACY: Your make up pay? They were paying you 85 per cent while you were on workers compensation?

PN351

MR ALLAN: Initially it was 85 per cent, but after I think at 45 weeks it dropped to 50 per cent.

PN352

SENIOR DEPUTY PRESIDENT LACY: Yes, but then they utilised your sick leave credits to make up your - - -

PN353

MR ALLAN: As a means of topping it up, yes.

PN354

SENIOR DEPUTY PRESIDENT LACY: Yes.

PN355

MR ALLAN: Essentially, your Honour, you raised that point of 85 per cent. After 45 weeks, this is under the Act, workers compensation payments had reduced to, I predetermine the amount either between 75 or 85 per cent. Australia Post in my case had deemed it to be 85 per cent. Interestingly they had never acquired the other 15 per cent from my sick leave credits to make up my pay. They had never done that.

PN356

SENIOR DEPUTY PRESIDENT DRAKE: Mr Allan, I’m not sure that this arises in response. Do you?

PN357

SENIOR DEPUTY PRESIDENT LACY: No, it doesn’t.

PN358

SENIOR DEPUTY PRESIDENT DRAKE: Mr Allan, I think you should confine yourself to those matters.

PN359

MR ALLAN: I’m sorry, your Honour. Anyway, the inference of Mr D’Abaco was that these sick leave entitlements had been exhausted. I was off work so therefore they were entitled to acquire this necessary information from medical practitioners. I was told to get out of the place. My sick leave entitlements were exhausted because they had taken them and I assert them legally. The 13 weeks that Mr D’Abaco related to in the conditions of employment award, that 13 weeks was in fact part of the enforced leave. I wasn’t off for 13 weeks because I was sick as he had intimated. I wasn’t sick, your Honour. I was never sick. I was forced out of the place.

PN360

COMMISSIONER EAMES: You don’t say you weren’t on sick leave though.

PN361

MR ALLAN: I wasn’t at the time. I was not on sick leave, no. Well yes, unpaid sick leave on their terminology. It was unpaid sick leave. In actual fact it was get out of the place. But it was unpaid sick leave. Mr D’Abaco had raised these WorkCover certificates and inferred that the three he was talking about were the three that Australia Post had acted upon in order to terminate my employment. He neglected to mention that I had been supplying at my employer’s request supplying these WorkCover certificates since 1999. During proceedings they were given I think at least half a dozen examples where the WorkCover restrictions were precisely, I mean precisely, the same as the latest WorkCover certificate that he refers to.

PN362

I don’t mean possibly the same, precisely the same. And that had been going on, well, in the early days on a monthly basis, but afterwards every three months. My employer had required of me because of the Compensation Act that I supply these WorkCover certificates. They were never necessary, your Honours. I always performed my work and not a modified version of my work as Mr D’Abaco had intimidated. The perambulator is not a modified version of a postal delivery officer’s work. It is a standard version. The frame I had used in throwing off my mail was not modified to suit my medical restrictions. It was a standard frame. There was photographic evidence provided during proceedings that proves beyond a doubt a standard frame being used by every facility in this country today.

PN363

Not superseded, still being used to this day. Mr D’Abaco intimated I had refused to sign a medical release form. There is no evidence of that, your Honours. I have never in my 20 years with this corporation ever refused to sign one of those forms.

PN364

COMMISSIONER EAMES: Have we got any evidence of any signed form?

PN365

MR ALLAN: Well, yes I can give you - these three would have had my signature, but there is one with my signature on it, yes.

PN366

COMMISSIONER EAMES: In relation to this injury?

PN367

MR ALLAN: Yes, an authorisation for medical information. It’s from my treating neurologist and I had signed it. I’ve only got the one copy, your Honours.

PN368

MR D'ABACO: I just had to rise because the only copy I had is clearly a certificate in relation to Mr Allan’s claim for compensation.

PN369

SENIOR DEPUTY PRESIDENT LACY: May 1998?

PN370

MR D'ABACO: Yes.

PN371

COMMISSIONER EAMES: Yes.

PN372

MR D'ABACO: Not in relation to a medical release authority to assess
Mr Allan’s fitness for duty.

PN373

COMMISSIONER EAMES: No, that’s what I was getting at, yes.

PN374

MR ALLAN: Yes. Well, a medical release authority, with all due respect, is a medical release authority. It is asking the - - -

PN375

SENIOR DEPUTY PRESIDENT DRAKE: Mr Allan, I think it’s - I’m not speaking for the Full Bench here, but for at least my purposes - if it’s designated for a purpose it’s restricted to that purpose.

PN376

MR ALLAN: Sorry, your Honour.

PN377

SENIOR DEPUTY PRESIDENT LACY: I agree with that.

PN378

MR ALLAN: I beg your pardon sorry?

PN379

SENIOR DEPUTY PRESIDENT LACY: I’d have to agree with her Honour on that point.

PN380

SENIOR DEPUTY PRESIDENT DRAKE: It’s in fact what you were seeking in the final - - -

PN381

MR ALLAN: What if I may just in closing, your Honour, I know these things ..... I didn’t expect that Mr D’Abaco would virtually re-open the case, but all I can say that everything other than the one single inescapable fact that I had always agreed to my medical examination and I had never refused to sign an authority. Other than those two unmistakable facts nothing else is relevant in relation to my appeal. I say my employer sacked me on the basis they claim that I had refused to attend the medical examination and sign one of their medical release authorities. They have no evidence of this. The evidence is to the contrary.

PN382

I have supplied you with my communications with the state manager of human relations for that precise very reason. Give me the name of your doctor, tell me where, when, how and I'll go. Excuse me, I’m getting a little bit irate here. This had been going on for so long it has actually become a farce. Give me the name of your doctors, I will go. Never once did they do that. Read Mr Draper’s letters. Never once did he accept or recognise my requests. He did this, your Honours, and I would suggest so that he could comply with his version of the Act with his so called three warnings and terminate my employment. That’s precisely what occurred, nothing else.

PN383

I was injured in 1993, not 1995, not 1997 or these dates they keep bringing up. My injury was in 1993 and from 1993 up until the hearing at the Administrative Appeals Tribunal this worker had performed every single facet of his work without a whimper, a whimper, from Australia Post even though they were fully aware of my injury. Fully aware of it, no whimper until the Administrative Appeals Tribunal said yes, Australia Post, you are liable for this man’s injury. Then all the tricks started. Now let’s go an see these facility nominated - there were three of them, your Honour. This wasn’t the first one. Three of them and all of them, all of them was supplying conflicting and contradictory information.

PN384

SENIOR DEPUTY PRESIDENT LACY: I think we’re going over ground now, Mr Allan, that we went over - - -

PN385

MR ALLAN: Look, I’m sorry about that. This is - I have always performed my work. Always. By their own admission I was a good employee. They have admitted that. I never, ever took any time off work as he has intimated. I would be one of the few employees of Australia Post that did not take time off work. Never. I’m sorry. I give up, your Honour. My case is .....

PN386

SENIOR DEPUTY PRESIDENT DRAKE: If you are upset, Mr Allan, and - - -

PN387

MR ALLAN: No, I’m not upset. I’m just a little bit emotional because this, your Honour - - -

PN388

SENIOR DEPUTY PRESIDENT DRAKE: I understand you’re emotional, but you should pause for a minute and just give some thought to if there’s any matter you want to put rather than close without saying anything. I think in fact you covered most of the grounds raised by Mr D’Abaco, but if there is some additional matter give it a minute and say it rather than close because after you close it’s forever hold your peace.

PN389

MR ALLAN: The only other thing I would like to mention, your Honour, is that Acton SDP in her decision used this word unwilling. Just because someone is unwilling to do something doesn’t mean that they have refused to do it. People do things unwillingly every day. I certainly was unwilling to sign a blank form. No one should be expected to sign a blank form. I was unwilling to do that. And all I asked was put the name of your doctor on that form and I will sign it. They never, ever did. Interestingly as I have said before this is the first time this has ever occurred. Why? Why this drastic change in procedure? And I simply ask that question. That’s all. Why won’t you put the name of the doctor on that form? They never, ever did. Thank you, your Honours, I close my case.

PN390

SENIOR DEPUTY PRESIDENT DRAKE: All right. Yes, we’ll reserve our decision. The Commission is adjourned.

<ADJOURNED INDEFINITELY [12.14PM]