C2005/3229, Transcript of Proceedings [2007] AIRCTrans 60 (19 February 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16456-1

COMMISSIONER RAFFAELLI

C2005/3229

CPSU, THE COMMUNITY AND PUBLIC SECTOR UNION
AND
MACQUARIE UNIVERSITY
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/3229)

SYDNEY

9.39AM, MONDAY, 05 FEBRUARY 2007

Continued from 30/10/2006

Reserved for Decision

PN32

THE COMMISSIONER: Yes, there’s no change in appearances. Sorry yes there is. Can I have the appearances?

PN33

MR T PEARCE: Yes, if the Commission pleases - - -

PN34

THE COMMISSIONER: You hadn’t appeared before in this have you?

PN35

MR PEARCE: I have actually yes.

PN36

THE COMMISSIONER: I thought it was Mr Stephens, yes, you did last time, sorry.

PN37

MR PEARCE: With me is MR B STEPHENS.

PN38

THE COMMISSIONER: Yes, that’s right.

PN39

MR D WEDGWOOD: I appear again for the AHEIA for the University, and also with me is MS A LERCHE from the University.

PN40

THE COMMISSIONER: Thank you,. Yes Mr Pearce?

PN41

MR PEARCE: I think as it’s been agreed Commissioner, the CPSU calls its witness Mr Hiran Wijetilaka.

<HIRAN WIJETILAKA, AFFIRMED [9.41AM]
<EXAMINATION-IN-CHIEF BY MR PEARCE

PN42

MR PEARCE: For the purposes of these proceedings have you prepared a witness statement?---Yes. I believe it was handed in with the documentation.

PN43

Is that witness statement 27 paragraphs in length?---Yes, it is.

PN44

I’d like to take your attention to paragraph 15 of your witness statement. In paragraph 15 of your witness statement you referred to a grievance you lodged with the University. Can you briefly outline, describe the substance of your grievance?---Yes. Essentially I felt that I was being harassed and bullied over a period of time. I just felt the last few years at the University and I was trying to ensure – I basically wanted it to stop and I wanted the University to try to resolve the issue. So basically what I was trying to do was highlight the issues which I felt I was being subjected to and I just basically wanted the harassment to stop.

PN45

You say that you were the victim of bullying and harassment. Do you think that bullying and harassment affected your health?---Yes, I believe so.

PN46

If as you say, the bullying and harassment you were experiencing was affecting your health, why is it that you didn’t make an claim for workers’ compensation?
---I basically wanted to eventually go back to work, because I basically enjoyed working there. I also realized in this kind of situation it would be very difficult to prove which way - I guess what caused what in this kind of illness. So I wanted to – I basically felt if I had raised the issues and gone to court, it would be really difficult for me to go back to work and I felt the grievance was a process where I could try to resolve it locally as it were at the University rather than it go outside and I believed there was a mechanism in actually trying to do that.

PN47

Thank you Mr Wijetilaka, I have no further questions.

PN48

THE COMMISSIONER: Well we will mark his statement.

EXHIBIT #CPSU5 WITNESS STATEMENT OF MR HIRAN WIJETILAKA

PN49

THE COMMISSIONER: Is it all right if we – I didn’t mark them, but can we treat the – are they attachments to your submissions Mr Pearce, or are they attachments to the statement? Just for identification.

PN50

MR PEARCE: Sorry about that, the documents contained we’ve discussed this previously, but the documents contained in both submissions are the parties are prepared to accept the voracity of so yes, we are.

**** HIRAN WIJETILAKA XN MR PEARCE
PN51

THE COMMISSIONER: I think what we’ll – well I won’t mark them I think it’s easier if again for identification we will when we get to your submissions, we will mark your submissions and then the attachments will be attachments to your submissions, because you’ve got submissions in reply and there’s three documents attached to that and we’ll live with that and then the others will be attached to Mr Wedgwood’s thing. So the statement of Mr Wijetilaka will stay on it’s own and it will be exhibit CPSU 5. Yes Mr Wedgwood.

<CROSS-EXAMINATION BY MR WEDGWOOD [9.46AM]

PN52

MR WEDGWOOD: Commissioner, I do hope this doesn’t cause too much difficulty but I do want to put to Mr Wijetilaka attachment 5 to the University’s submission. I’m not sure whether you are happy to deal with it I don’t think - again there’s no disputation about the documents.

PN53

THE COMMISSIONER: Yes, yes.

PN54

MR WEDGWOOD: If I may pass the document to Mr Wijetilaka. May I just ask you to have a look at that document for the sake of the record Commissioner, it is attachment 5 to the University’s submission. It is a work cover certificate provided ultimately by Mr Wijetilaka.

PN55

Mr Wijetilaka is that the medical certificate that you provided to the University?
---I believe so, yes.

PN56

Was that document provided to the University after conciliation before Senior Deputy President Duncan in this matter?---I don’t recall.

PN57

Okay, thank you.

PN58

THE COMMISSIONER: What was the answer, doesn’t recall?

PN59

MR WEDGWOOD: He doesn’t recall Commissioner.

PN60

Mr Wijetilaka there is one other document I wish to present to the witness Commissioner and it’s not a document that’s attached, I apologize. Mr Wijetilaka I would ask you to have a brief look at the document. For the record Commissioner, it is a document of nine pages marked in the top right-hand corner, 1, 2, 3, 4, 5, 6, 7, 8, 9, so for the sake of ease of reference I will just refer to the page numbers within it. The front page is a PAYG payment summary and then the remainder of it is a tax return.

**** HIRAN WIJETILAKA XXN MR WEDGWOOD
PN61

Mr Wijetilaka is that document, a document provided by you through the CPSU in these proceedings, as a result of a request from the University for evidence about your income?---Yes.

PN62

If I may take you to – sorry can I just clarify that? As is often evident from page 2 it relates to the financial year 2005 2006 as show in the top right-hand corner of page 2?---Yes.

PN63

If I may take you to page 7 which is work sheet B?---Yes.

PN64

It shows that the total operating income for that financial year is $1072 is that correct?---Yes.

PN65

Then in relation to deductions against that income, that the total operating expenses about two thirds of the way down the page is $13,125, is that
correct?---Yes.

PN66

Thank you and that within that an amount of $3167 is included as depreciation is that correct?---Yes.

PN67

That the result therefore for the year as shown approximately one third of the way down the page is a loss of $12,053 is that correct?---Yes.

PN68

Now Mr Wijetilaka if I take you back to page 6 of the document towards the very bottom of the page, the fourth last line. Against the word partnership or sole trader, I believe in relation to point (f) as it’s labelled, the figure capital S appears is that correct?---I believe so.

PN69

Does that mean that this is a sole trader company?---Yes, I don’t know what the S means, but it is a sole trader company.

PN70

Does this mean in effect that you are Passionfruit Solutions?---Yes.

PN71

How long has Passionfruit Solutions been in business?---Just close to eight or 10 years.

PN72

Pardon?---Close to eight or 10 years.

PN73

Eight or 10 years, thank you. Now in previous years did Passionfruit Solutions make profits as opposed to losses?---I don’t recall.

**** HIRAN WIJETILAKA XXN MR WEDGWOOD
PN74

In particular in relation to the financial year 2004 2005, that is the previous financial year, can you give us some idea what the outcome for that year may have been?---I don’t recall.

PN75

In relation to the current financial year, that is the financial year 2006 and 2007, can you give us any idea as to what the status of the income of that company is so far?---I don’t know. I do my taxes at the end of the year, so.

PN76

Has it recorded any income for the year?---No.

PN77

Commissioner if I may I’d like to have that document marked as evidence, if
Mr Wijetilaka attests that it is his tax return for that year.

PN78

THE COMMISSIONER: No problem Mr Pearce?

PN79

MR PEARCE: Not a problem.

PN80

THE COMMISSIONER: I think we’ve got to start from the beginning.

EXHIBIT #MU1 TAX RETURN

PN81

MR WEDGWOOD: Thank you Commissioner, no further questions.

PN82

THE COMMISSIONER: Yes, Mr Pearce, any re-examination?

PN83

MR PEARCE: No thank you.

PN84

THE COMMISSIONER: Thank you Mr Wijetilaka you can leave the witness box.

<THE WITNESS WITHDREW [9.54AM]

PN85

THE COMMISSIONER: Yes, Mr Pearce.

PN86

MR PEARCE: Commissioner you will have received the documents in the CPSU submission, the Macquarie University submission, their response to that submission and our response to that submission. Contained in these documents, obviously is Mr Wijetilaka’s witness statement but is also the bulk of the documentation on which we will rely in this case. I propose with the Commission’s consent to proceed briefly by outlining the facts of the case.

PN87

THE COMMISSIONER: Yes, well can I as I anticipated can we mark your – you don’t have to – you can depart from them orally, but can we mark your written submissions, the original ones, can we?

PN88

MR PEARCE: Yes.

EXHIBIT #CPSU 6 WRITTEN SUBMISSIONS
EXHIBIT #CPSU 7 RESPONSE TO SUBMISSIONS

PN89

THE COMMISSIONER: Yes, thank you, yes Mr Pearce.

PN90

MR PEARCE: Just for the purposes of clarity and forgive my ignorance for a second Commissioner, is it the case that all of the documentation provided in those submissions will be accepted for the purposes of your examination?

PN91

THE COMMISSIONER: Yes, understand I always - I accept the facts unless you – well the documents speak for themselves. As to comments that each of you make in the submissions that’s not evidence and I’m able to sort of on my known work out what’s opinion or what’s submission as opposed to what is a legal position or a fact and you’ll obviously you’ve highlighted that and in fact Mr Wedgwood on a number of occasions says agrees – or I think it’s the word aggress, or yes. Where he doesn’t agree he sets it out, so that’s helpful and it sort of allows the Commission to know what is almost evidentiary and what are merely submissions, but yes.

PN92

MR PEARCE: Commissioner this matter concerns the interpretation of clause 11.04 of the Macquarie University enterprise agreement 2003, 2006 and whether Mr Wijetilaka is entitled to paid leave under this clause for the period in dispute. The Commission may deal with this matter in accordance with section 170LW of the pre-Reform Act which authorizes the Commission to settle disputes over the application of an agreement within the limits of the dispute settling procedures in clause 14.03 of the agreement.

PN93

For the purposes of these proceedings, the necessary procedural steps set out in clause 14.03.6 of the agreement have been completed. Mr Wijetilaka was employed by Macquarie University as a Unix systems communicator on a continuing or permanent basis from 17 August 1998 until 18 August 2006. On 23 February 2005, Mr Wijetilaka commenced an extended period of sick leave. The relevant provisions dealing with sick leave arrangements are contained in clause 11.04 of the agreement. Mr Wijetilaka has received payment of sick leave at his ordinary rate for the period 23 February 2005 to 13 June 2005.
Mr Wijetilaka’s entitlement for paid sick leave for this period was the subject of the original dispute and was resolved with the Commission’s assistance on 6 June 2005. From 14 June 2005 - - -

PN94

THE COMMISSIONER: This was with Senior Deputy President Duncan was it?

PN95

MR PEARCE: It was indeed. From 14 June 2005 until his departure from employment on 18 August 2006 through the acceptance of a targeted voluntary redundancy the University did not pay Mr Wijetilaka sick leave, despite his continued absence due to illness. In failing to pay Mr Wijetilaka we contend that the University misunderstood the meaning of clause 11.04 and as a result did not act in accordance with the provisions therein. We submit that Mr Wijetilaka is entitled to receive payment in accordance with clause 11.04 at what was his ordinary rate of pay for the period 14 June 2005 to 18 August 2006.

PN96

We contend that the total amount is $82,180 calculated according to attachment (1) of the agreement at level 8, step 4. For – and I’ll break it down – 16 weeks at a rate of $67,440 per annum for the period of 14 June 2005 to 1 October 2005 plus 34 weeks at a rate of $70,812 per annum for the period 2 October 2005 to 1 June 2006 plus 11 weeks at the rate of $71,520 per annum for the period 2 June 2006 to 18 August 2006. We contend furthermore that Mr Wijetilaka is entitled to have his annual leave loading and long service leave accrual entitlements credited for the period 14 June 2005 to 18 August 2006 in accordance with clauses 11.02 and 11.03 and 11.05 of the agreement and paid to Mr Wijetilaka.

PN97

Our claim in undeniably substantiated, we believe that it is legitimate and reasonable. In our submission we will show that the University firstly erred in its interpretation of the sick leave provision in clause 11.04 of the agreement. That despite this the CPSU and Mr Wijetilaka took reasonable steps to resolve this matter amicably and that Mr Wijetilaka demonstrated patience and flexibility in endeavouring to settle this dispute through negotiation. To this end the CPSU seeks the following order. That Macquarie University pay Mr Wijetilaka the sum of $82,180 plus accrued annual leave and long service leave entitlements for the period 14 June 2005 to 18 August 2006 or another such amount as the Commission deems fair and reasonable in the circumstances.

PN98

Commissioner I intend to proceed by briefly reviewing the sequence of events that led to today’s proceedings before turning to the sick leave provision in clause 11.04 of the agreement. On 23 February 2005 Mr Wijetilaka commenced an extended period of absence due to illness that would continue until his departure from employment on 18 August 2006. From the commencement of his absence Mr Wijetilaka notified his supervisor Mr Wayne Lewis of his illness and provided the University with a medical opinion, and the University’s counsellor,
Mr Robert Wickenden as evidence of his condition.

PN99

Evidence of this, I refer you to Macquarie University’s attachment 6 in its submission. Mr Lewis raised no objection with Mr Wijetilaka as to the validity or agreement compliance of Mr Wickenden’s written observations. Mr Wijetilaka accordingly absented himself from work and acting on Mr Wickenden’s advice, sought the opinion of his Doctor regarding his condition. For evidence of that I refer you to Hiran’s witness statement at paragraph 8, sorry Mr Wijetilaka’s witness statement paragraph 8. Despite receiving a succession of medical certificates which further confirmed the substance of Mr Wickenden’s observation’s regarding Mr Wijetilaka’s ill health, the University steadfastly rejected Mr Wijetilaka’s claim for paid sick leave.

PN100

I would like to briefly explore this for the Commission. In rejecting his claim for paid sick leave the University must have determined that both Mr Wickenden’s certificate and later medical certificates provided by Dr Susan Paton, did not meet the requirements of clause 11.04.12 and 11.04.13 of the agreement and I refer you to CPSU attachments for 5, 6, 8, 10, 11 and also to Macquarie University’s attachment 15. Focusing on what transpired for a moment in making that decision or at that point. Firstly in order to reject Mr Wijetilaka’s claim for paid sick leave in the first place, the University must have determined that the certificate issued by Mr Wickenden, the University’s counsellor did not comply with the requirement of clause 11.04.12.

PN101

In other words, the University rejected it’s own counsel’s opinion on the basis of merit. Secondly, on 28 February 2005 Mr Wijetilaka provided a second certificate from Dr Paton to the University which was also rejected. Even if the Commission is inclined to accept the University’s decision to reject Dr Paton’s medical certificate of 28 February 2005 – and this is at Macquarie University attachment 8 – on the grounds that it was backdated, and therefore non agreement compliant, each and every certificate Dr Paton provided from that point on was agreement compliant and yet the University maintain their refusal to pay
Mr Wijetilaka.

PN102

As you would be aware Commissioner, the CPSU initiated dispute proceedings in relation to the University’s refusal to pay Mr Wijetilaka. We were successful through this process in securing Mr Wijetilaka the payment of sick leave for the period 23 February 2005 to 13 June 2005. However, from 14 June 2005, approximately one week after the original Commission hearing, the University ceased paying Mr Wijetilaka sick leave on the basis that his entitlement to a 13 week period of paid sick leave had concluded. I refer you to CPSU attachment 19. The considerable lengths Mr Wijetilaka had gone through to secure the initial period of paid sick leave, combined with his condition and what he perceived to be his workplace situation and the University’s subsequent decision to cease payment engendered in Mr Wijetilaka a sense of extreme distrust towards the University.

PN103

This is supported both by the evidence given by Mr Wijetilaka and the medical opinion of Mr Wijetilaka’s treating psychiatrist Dr Michael O’Shea. I refer you to Dr O’Shea’s medical certificate of 2 July 2005 at Macquarie University attachment 1. In our view it was precisely this combination of circumstances that made a successful return to work incredibly painstaking and ultimately impossible to achieve. As Dr O’Shea indicates in his medical certificate of 2 July 2005, the considerable dispute with the University about Mr Wijetilaka’s entitlement to sick leave seemed in his view to be exacerbating Mr Wijetilaka’s condition. In other words, over the course of the dispute Mr Wijetilaka’s condition had in fact, in Dr O’Shea’s opinion, become worse.

PN104

He had become more anxious, more paranoid and more depressed. From June 2005 and at Mr Wijetilaka’s request the CPSU corresponded and met with the University on numerous occasions. We endeavoured through this process consistent with the dispute settling procedures in the agreement under clauses 14.03.02 to secure Mr Wijetilaka further paid sick leave, overcome some of the stumbling blocks that had emerged between Mr Wijetilaka and his colleagues and enable the development of a durable return to work plan. I don’t intend obviously to walk you through each and every item of correspondence, but for the sake of the transcript I will just refer to the lot and that’s at CPSU 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 37, 38 and 39.

PN105

Over the ensuing months Mr Wijetilaka continued to receive treatment for anxiety and major or clinical depression. When the University sought Mr Wijetilaka’s permission to consult with his medical practitioners – and this is at CPSU attachment 24 – expressed his willingness but also indicated some reservation about the nature of the access sought. Mr Wijetilaka makes reference to this in paragraph 19 of his witness statement and also in his correspondence to the University. While on it’s face – sorry – essentially Mr Wijetilaka was concerned about providing the University with unfettered and unrecorded access to his medical practitioners and his medical records.

PN106

While on it’s face Mr Wijetilaka’s request that all communication with his treating practitioner be in writing may seem cumbersome, it is not inconsistent with clause 11.04.03 of the agreement and must be understood in light of his health at the time. That particular provision in the agreement, clause 11.04.03, talks about or refers to discussions and consultation taking place between the staff member, the University and with the staff member’s permission, the staff member’s medical practitioner. Now essentially we say that while the request was cumbersome, the reason that Mr Wijetilaka felt the way that he did was because of this original dispute and also his condition at the time.

PN107

I think you need to look at his – at it in that light. In any event on 16 January 2006, the CPSU indicated to the University Mr Wijetilaka’s preparedness to concede to face to face discussions with his treating practitioners. For evidence of this I refer you to CPSU attachment 53.

PN108

THE COMMISSIONER: When was this?

PN109

MR PEARCE: This was the 16 January 2006. This is some months later. Despite our repeated approaches the University did not attempt to contact Dr O’Shea until 3 April 2006 regarding input into a possible return to work plan which resulted in the exchange of three letters. This is at CPSU 35, 36 and 37. However in an email of 3 May the University advised the CPSU that it would immediately cease any discussion of a return to work plan for Mr Wijetilaka as it was in receipt of an application from Mr Wijetilaka for long service leave dated 27 April 2006.

PN110

At this stage Mr Wijetilaka obviously hadn’t been being paid for a considerable period of time, that we were able to negotiate with the University for him to access some of his long service leave. They had suggested it previously themselves, but as soon as Mr Wijetilaka did the University then made a decision not to continue to negotiate in relation to Mr Wijetilaka’s return to work. I assume because he was on a period off approved leave. This is at CPSU attachment 39. On 17 May 2006 at Mr Wijetilaka’s request we sought a re-listing of this matter and at a subsequent hearing on 27 July Mr Wijetilaka accepted an offer of targeted voluntary redundancy on the understanding that he would be free to pursue his claim for paid sick leave for the period in question.

PN111

This brings me Commissioner to the core of this dispute, and that is whether
Mr Wijetilaka was or was not entitled to paid sick leave at his ordinary rate of pay for the period 14 June 2005 to 18 August 2006. For the purposes of this discussion it is meaningful to review clauses 11.04.01, 11.0402 and 11.04.03 of the agreement together and if you will just allow me a little latitude I’ll just walk through those clauses. Clause 11.04.01 states:

PN112

Staff other than casual staff who satisfy the University that they are unable to perform their duties by reason of personal illness, injury or incapacity, not arising out of, or in the course of their employment will be entitled to take sick leave with pay, as in this clause sufficient to permit them to recover from their illness, injury or incapacity.

PN113

11.04.02 continues:

PN114

The needs based sick leave scheme is a safety net for staff but will not provide fully paid leave for staff with conditions requiring absences of an uncertain length.

PN115

11.04.03 goes on to say:

PN116

An equitable return to work plan will be considered in such cases after discussion and consultation with the staff member and with the staff member’s permission, the staff member’s medical practitioner. This will occur when the staff member has already received 13 consecutive weeks of paid sick leave at the ordinary rate in relation to a particular condition that may commence at an earlier stage of the illness if requested by the staff member.

PN117

Firstly, clause 11.04.1 sets out the broad parameters by which the sick leave scheme operates and establishes some basic exclusions. Firstly, casual employees are excluded from any entitlement under this provision. Secondly, those employees who cannot satisfy the University that they are unable to perform their duties, due to personal illness, injury or incapacity, are also excluded from accessing the scheme. Thirdly, in cases where an employee’s personal illness, injury or incapacity has arisen out of or in the course of employment, where for example, a worker’s compensation claim has been granted, they would similarly be excluded from making a claim for paid sick leave under this provision.

PN118

So how does Mr Wijetilaka stake up against that? Well Mr Wijetilaka was a continuing employee. He was able to demonstrate that he was unable to perform his duties because of a personal illness. Despite his suspicions it has never been established that his illness arose out of or in the course of his employment. Three ticks and Mr Wijetilaka is in. What does clause 11.04.01 say about the scheme for employees like Mr Wijetilaka who qualify? It says only that those employees will be entitled to take sick leave with pay as in this clause sufficient to permit them to recover from their illness injury or incapacity.

PN119

No mention of a quantum or an upper limit on the amount of paid sick leave to which an employee is entitled. There are four words however, contained in this provision which suggest or indicate that further qualifications are to come, those words are of course, in this clause. Clause 11.04.02 establishes two things which are crucial to this dispute. Both in the context of this provision are essentially statements of principle designed to inform the practical application of this clause. The first of these is that the scheme is intended to be needs based. We take this to mean the needs of the employee to whom the provision applies. In
Mr Wijetilaka’s case we say that the University ought to have taken reasonable steps to inform itself of his needs in light of his condition, and we reference the information already available to them.

PN120

That is the opinions of the University’s counsellor, Mr Robert Wickenden, Mr Wijetilaka’s GP, Susan Paton, and Dr Michael O’Shea, Mr Wijetilaka’s treating psychiatrist. In order to determine an appropriate application of the sick leave scheme in his case, an application that was appropriately sensitive to his needs. The second of these principles is that the sick leave scheme is envisaged as a safety net for employees. We take safety net to mean essentially that the scheme is there for employees when they really need it, which in accordance with clause 11.04.02 would be when the University is satisfied that an employee is unable to perform their duties by reason of personal illness, injury or incapacity. Sorry, that’s clause 11.04.01.

PN121

Furthermore, this safety net for staff is not intended and nor will it provide fully paid leave for staff requiring absences of an uncertain length. For the record, this is something the CPSU has always accepted and while we believe that
Mr Wijetilaka was still entitled at the time to paid sick leave – sorry, for the record this is something the CPSU has always accepted and that is that the clause was never intended to provide fully paid leave for staff requiring absences of an uncertain length. We believe Mr Wijetilaka was still entitled throughout the course of this dispute to paid sick leave.

PN122

However, in recognition of the fact that the provision was never intended to provide fully paid sick leave to staff requiring absences of an uncertain length on the basis of this we attempted to negotiate a settlement for our member. For evidence of this, I refer you to correspondence between Mr Stephens and Ms Lerche at CPSU 54. Getting back to the clause however, it is worthwhile noting that at the end 11.04.02 there is still no reference to a cap or a quantum. Only a vague reference to not providing fully paid leave for staff with conditions requiring absences of an uncertain length. It is hardly defined.

PN123

What occurs then in the event that you happen to be an employee suffering from a personal illness, injury or incapacity where there is uncertainty as to the length of time required by you to recover from your condition. This situation is unpacked in clause 11.04.03 which needs to be read in conjunction with the previous clause 11.04.02 in order to make any sense at all. Read together it’s clear that in such cases – quoting for the clause:

PN124

Where there is doubt as to the length of time required by an employee to recover from their condition, then an equitable time to work plan will be considered after discussion and consultation with the staff member and with the staff member’s permission, the staff member’s medical practitioner.

PN125

Both parties agree, I think, that this process never occurred. Mr Wijetilaka’s condition was never assessed in the manner to which I have just referred. The University has argued that this was predominantly due – and I am referring here to their written submissions – that this was predominantly due to Mr Wijetilaka’s restrictions on contact with him and his medical practitioner. We say that it was predominantly because of the original dispute over Mr Wijetilaka’s claim for paid leave. In this case, we say the University are as much to blame for frustrating this process. For frustrating the process involved in considering and developing a return to work plan for Mr Wijetilaka.

PN126

Returning once again to the clause – at what point does doubt as to the length of time required by an employee to recover from their illness, solidify into the kind of uncertainty that requires the process involved in considering and developing an equitable return to work plan. The second sentence of clause 11.04.03 answers precisely this question by stating that:

PN127

This process will occur when the staff member –

PN128

Sorry it actually states:

PN129

This will occur when the staff member has already received 13 consecutive weeks of paid sick leave at the ordinary rate in relation to a particular condition that may commence at an earlier stage of the illness if requested by the staff member.

PN130

In other words, at the conclusion of a period of 13 consecutive weeks of paid sick leave at the ordinary rate in relation to a particular condition, the process involved in considering a return to work plan must commence. From this formulation of words it can only be derived with any certainty that the 13 weeks mark is a trigger. Hence, the use of the word, commence that starts another phase in the University’s sick leave scheme. It is not as the University have argued in their written submission on ordinary limit on the amount of paid sick leave to which a qualifying employee is entitled.

PN131

If it were intended to be the clause would have stated it clearly. Put simply it’s too important to admit, and in our view, was never intended to be understood as such. Read correctly then, the post 13 week phase is the discursive phase. That’s the discussion and consultation and is concerned with assessing an employee who is suffering from a long-term illness. There is as we have previously submitted in our written submissions no time restrictions placed on this discursive process. However, I think it’s fair to say that when the parties were negotiating the provision they never envisaged an extended process of discussion and disputation.

PN132

Equally one might say, the parties probably never envisaged such a rigorously technical interpretation as what qualifies as a valid medical certificate. Clause 11.04.04 is wholly concerned with what may be involved in a return to work plan. It provides a number of examples, which are designed to inform both employees and managers about the sorts of things that could reasonably be expected to be part of such a plan. Hence again, the choice of words, a return to work plan may involve. The University in their written submission have made much of the first example provided which reads:

PN133

Approval of paid leave beyond 13 weeks and up to a limit for that illness determined after taking into account the advice of the medical practitioners –

PN134

Sorry:

PN135

Approval of paid leave beyond 13 weeks and up to a limit of that illness determined after taking into account the advice of the medical practitioners, the staff member’s history of sick leave related to the condition and the length of service.

PN136

They say that when read with the last sentence of the previous sub clause this clearly indicates that 13 weeks is an upper limit of sick leave approval without the development of an equitable return to work plan. In actual fact what it clearly indicates is that a component of a hypothetical return to work plan may be the payment of sick leave beyond the 13 weeks, that’s all it clearly indicates. It does not establish 13 weeks as a cut off point or ordinary limit. Nor does it establish that after 13 weeks an employee can be automatically transferred to sick leave without pay.

PN137

The CPSU submits there are only two avenues in which paid sick leave can cease under clause 11.04 of the agreement. They are (1) upon implementation of a return to work plan or (2) in accordance with subclause 11.04.05 which involves the termination of employment on the grounds of ill health. We contend that neither applies in Mr Wijetilaka’s case. While the Commission may be inclined to be critical of the CPSU for not bringing this matter to it’s attention sooner we say firstly, that we acted at all times in accordance with the dispute resolution procedures of the agreement which state at clause 14.03.02:

PN138

As far as possible matters in potential dispute should be resolved locally.

PN139

Our approach to this matter was informed at all times by Mr Wijetilaka’s wish to return to his position once his health had improved and his concerns regarding his workplace had been addressed and Mr Wijetilaka’s preparedness to accept a negotiated settlement to his claim for paid sick leave. Again I refer to CPSU attachment 54. In any event the Commission should not be dissuaded from awarding to Mr Wijetilaka a claim to which he had a legitimate entitlement.

PN140

Finally, the sick leave provision contained in the Macquare University Enterprise Agreement 2003 to 2006 is and always was, intended to be generous. I urge the Commission to interpret it accordingly and grant Mr Wijetilaka’s full claim. Thank you.

PN141

THE COMMISSIONER: Yes Mr Wedgwood.

PN142

MR WEDGWOOD: Commissioner, if I may start by saying that there were written submissions made on behalf o the University together with a series of attachments which have previously been referred to in these proceedings. As my colleague and I have indicated there’s no contention about the voracity of the relevant documents. I just ask that it be marked.

EXHIBIT #MU2 WRITTEN SUBMISSIONS

PN143

THE COMMISSIONER: Yes.

PN144

MR WEDGWOOD: Thank you Commissioner. As an initial point I would just like to raise two matters in CPSU 7 which are the CPSU response. If I may take you to that document and in particular on page 6, paragraph 14 or the numbered 14, I’m not sure of exactly the paragraph.

PN145

THE COMMISSIONER: Yes.

PN146

MR WEDGWOOD: There’s a paragraph in the middle of that numbered section which says:

PN147

Mr Wijetilaka raised a number of concerns with respect to the access sought by the University that is full and unrestricted access to his treating practitioner and full disclosure of his and his family’s medical records.

PN148

As a matter of fact there is no evidence of that and in fact it was never sought. Nowhere in any of the documents, nor at any stage did the University seek access to Mr Wijetilaka’s family’s medical records. I accept that from the evidence
Mr Wijetilaka had a fear that would be the case but if one goes to the document ultimately provided by Mr Wijetilaka which is at attachment 30, I think it is which is to the University’s submission, which is the standard information consent form. Commissioner, if I may take you to it, it is in fact attachment 30 to the University’s submission.

PN149

THE COMMISSIONER: Yes.

PN150

MR WEDGWOOD: It’s a standard form Commissioner, and it specifically says at paragraph 1:

PN151

In relation to my illness from my nominated treating Doctor - - -

PN152

Et cetera, etcetera and information from – with my – in paragraph 2:

PN153

Discuss that information with my knowledge and treating Doctor –

PN154

Et cetera:

PN155

-involved in the management of my return to work.

PN156

The next paragraph immediately before the line about the illness says:

PN157

I understand that this consent relates only to my current illness.

PN158

I just like to correct that for the record that in fact there’s no request by the University at any stage, either for full disclosure of his entire record, it is only that that related to the current illness and there was never any request for the family’s medical records. I accept that Mr Wijetilaka had a – and I accept his fear that that had been asked for, but for the record it never was. The second point I’d just like to raise Commissioner is on page 7 of the CPSU’s submission, CPSU 7 which is in relation to paragraph 20. It refers to the fact in the second paragraph there:

PN159

The new sick leave provision includes that group - - -

PN160

THE COMMISSIONER: Sorry, sorry, paragraph what is it?

PN161

MR WEDGWOOD: It’s page 7 of CPSU 7.

PN162

THE COMMISSIONER: Yes.

PN163

MR WEDGWOOD: It’s paragraph it’s numbered 20 which begins with:

PN164

The CPSU agrees that the Commission –

PN165

THE COMMISSIONER: Yes, yes.

PN166

MR WEDGWOOD: The second paragraph of that numbered paragraph, numbered section it says:

PN167

The new sick leave provision included in the Macquarie University Enterprise Agreement was agreed to in order to meet funding requirements imposed by the Federal Government’s ...(reads)... workplace reform requirements and not as an attempt to clarify any perceived ambiguity in this clause.

PN168

Again as a matter of fact and it’s on the public record there is no requirement of - workplace relations requirement in relation to sick leave. It is true that that agreement was required to comply with those requirements but there’s no requirements in relation to sick leave in those requirements they are publicly available on the Department of Education Science and Training website, but it’s simply not true to say that the change to the sick leave provision was because of those requirements because there’s no such requirement.

PN169

Commissioner as a first point I did want to touch on the matter raised by my colleague about what I might call the initial dispute in relation to this matter. If I may take you to attachment 8 of the University’s submission, which is a medical certificate by Dr Susan Paton, I assume since it has an asterisk against her name on that document.

PN170

THE COMMISSIONER: Yes.

PN171

MR WEDGWOOD: As you can see from the certificate Commissioner, it is dated 28 February but it refers to the fact that Mr Wijetilaka was unfit for work form 23 February. If one goes to the University’s agreement that was relevant at the time and in relation to 11.0.4.1.3 it refers there to the fact that the University will accept certificates that comply with the principle set out by the New South Wales medical board and the first point in that the certificate should be dated with the date upon which it is written and backdating or postdating is unacceptable. Further not for the sake – well relevant to this, but also relevant to subsequent certificates from Dr Paton, it requires that any reference to symptoms referred to by the patient and not observed by the Doctor should be clearly identified. But generally an employer is not bound to accept a certificate however.

PN172

So the staff member must be aware that the amount of detail required to satisfy the University and that in that case the University’s view was that one, it was backdated, and two, it was – did not contain the medical condition for which it was issued. It simply says unfit for work. Now if one goes to subsequent certificates from Dr Paton and they are included at for instance attachment 9 to the University’s submission, attachment 11 and I think there are subsequent ones as well – yes, at attachment 14, there may be another one Commissioner – in fact by the time you get to 17, which is 13th of the 5th Dr Paton has for the first time included the basis on which the medical assessment has been made.

PN173

It was the initial backdating and then the subsequent failure to disclose the medical condition that led the University to form the view that these certificates were not compliant. Following conciliation proceedings in the dispute Commissioner, the document now identified by Mr Wijetilaka which was attachment 5 to the University’s submission and has been marked I think as MU1, which was a certificate from Dr Shauna Barnes which was indeed dated 23 February which was the first date of Mr Wijetilaka’s illness, or absence on illness in this case, contained all requirements of the University in accordance with 11.04.1.3.

PN174

On the production of that document the original disputation which was about the initial period of absence, was in fact resolved. I mention those points only for clarity of the record Commissioner, because my submission on that point, is that the question of the initial 13 week period revealing no longer at issue, it was in fact resolved during conciliation.

PN175

THE COMMISSIONER: Because you were shown this?

PN176

MR WEDGWOOD: Because as I am advised Commissioner, that document was provided subsequent to the conciliation as a result of discussion that occurred at conciliation. That the absence of the original identification of the basis of the illness and secondly, that the original document provided by Mr Wijetilaka from Dr Paton, was in fact a backdated certificate whereas this certificate had neither of those deficiencies. But in any case, as a result of that the initial dispute was resolved, as is common ground I think.

PN177

Commissioner, as my colleague correctly points out therefore the matter at issue in this case is the interpretation of the agreement. At the end of the day that’s the matter of contention between the parties. I would like to address as my colleague has the provisions of the agreement, 11.04 and in particular the initial clauses of it .01, .02, .03 and .04. Unsurprising Commissioner I have a slightly different interpretation of these clauses to my colleague. What we say is that clearly 11.04.01 provides in certain circumstances access to some potentially lengthy sick leave in particular circumstances but those are restricted and the restriction we say is clearly understood by the history in the clause. As included in our submissions Commissioner, the original provisions which predate this which were in – what for shorthand I’ll refer to as the 1997 enterprise bargaining agreement, a copy of which is at attachment 1 to the University’s submission. That agreement contained no restrictions whatsoever. Again, I don’t think that’s a contention between the parties.

PN178

The subsequent agreement which was the 2000 to 2003 agreement, a copy of the relevant clause is at attachment 2, included basically the same provisions as were then carried forward into 2003 and 2006. My colleague’s assertion is that those words in fact in effect continue an unrestricted provision in relation to sick leave. We say, clearly the opposite is true. Firstly, Commissioner, we say that 11.04.01 has three components to it. It has a provision that people who are unable to perform their duties may be entitled to sick leave with pay but the limitation is as in this clause. That is, the entire clause of 11.04, not the subclause of .01.

PN179

The second restriction is that that illness, injury or incapacity must not be arising out of or in the course of their employment and the third restriction is contained in 11.04.02 which is that it’s a safety net for staff that will not provide fully paid leave for staff for conditions requiring absences of an uncertain length. Now Commissioner, my colleague says that in effect those three provisions in this case are such that Mr Wijetilaka is entitled to in effect unlimited sick leave. I say that on each of those three points the reverse is true. Firstly, the exemption that the incapacity or illness or injury must not be arising out of or in the course of their employment.

PN180

Now Commissioner, attachment 5 to the University’s submissions, now marked as MU1 I believe is a work cover New South Wales medical certificate. It is provided by the medical practitioner, with presumably experience in these matters as a work cover certificate not an ordinary medical certificate. It identifies that how the injury occurred, approximately one third down that document due to difficult stressful conditions and relationships in the workplace. That is the Doctor’s own assessment is that this illness, injury or incapacity arose out of or in the course of their employment.

PN181

Now further exactly the same provisions are contained in document 21 attached to the University submission which is a certificate from Dr Michael O’Shea where on the fifth line he says:

PN182

In the context of work related stress.

PN183

He then says if he – towards the end of the certificate:

PN184

If Mr Wijetilaka does not gain access to ongoing sick leave which he has in reserve beyond the 13 week period he may need work cover intervention.

PN185

So again the fact that the illness arose out of or in the course of the employment and again Commissioner, if I may take you to attachment 32 to the submission, again a further document from Dr Michael O’Shea in this case, addressed to the University return to work coordinator, it says:

PN186

Mr Wijetilaka has been suffering from major depression due to workplace bullying.

PN187

Indeed in his own evidence Mr Wijetilaka said that was the cause of his illness. So our submission is that clearly that exemption to the general provision of a possible unlimited sick leave provision applies in this case. Even if that were not so Commissioner, the question of whether or not 11.04.02 applies comes to be considered, and again as is given on evidence and in all the supporting documentation and freely submitted by my colleague, Mr Wijetilaka was absent from work from 23 February 2005 until August 2006 – a period of almost 18 months continuous with no indication that his return to work would ever actually happen.

PN188

I accept that there was some consideration of return to work programs, but for various reasons that was not achieved, most in our submissions due to
Mr Wijetilaka’s actions and restrictions. But on any objective assessment of the facts in this case, the illness was of an uncertain length. Indeed, at no time in any of the medical certificates and there are a variety of them, both in the CPSU documents and the University documents, has any medical practitioner identified that there would be an actual end to the illness. That is that it remains uncertain.

PN189

The third point in my submission Commissioner is that in relation to
the question of whether or not there is in effect an assumption of unlimited sick leave, which as my colleague suggests is only able to be not provided in what he regards as certain circumstances that is the actual completion and agreement of a return to work program. My submission is that 11.04.04 makes the reverse assumption true and the reason for that is because it says:

PN190

A return to work plan may involve approval of paid sick leave beyond the 13 weeks.

PN191

Now my colleague submitted in his oral submissions this morning that there’s no cap or quantum on paid sick leave. I beg to differ Commissioner, those words prescribe it precisely, approval of paid sick leave beyond the 13 weeks may be involved in a return to work plan. Conversely, if one goes to the second paragraph or subparagraph of that clause, it may involve a period of sick leave without pay for up to 12 months in the first instance, which may be extended for up to three years while preserving the staff member’s right to return to a University position.

PN192

So again the options are available but contingent upon the development of a return to work program and that may involve certain things. But the fact is that it is clear from the words of 11.04.03 which says that the return work plan will be considered once a person has passed the 13 consecutive weeks of paid leave at the ordinary rate and it then makes a proviso that it may commence at an earlier stage of that illness if requested by the staff member. That is if the staff member is obviously aware that the period may extend beyond 13 weeks then it is in their interest to resolve a return to work plan and presumably gain, in that return to work plan, an approval of paid sick leave beyond the 13 weeks.

PN193

Now the alternative construction that my colleague wishes to put on it Commissioner I say is absurd in the extreme, because if as we see in this case and I think the evidence is before you, a staff member decides that they will not provide medical certificates which the University identifies as not meeting the requirements with the agreement, that they will not approve the standard return to work medical assessment form, in the standard form agreed by the University in all other cases. That they will impose restrictions such as only in writing, only particular practitioners, only with certain individuals, then an individual can in effect frustrate the development of any return to work program indefinitely.

PN194

On my colleague’s construction the University is forced to pay them continuous paid sick leave on an unlimited basis. Now I would say commonsense in the interpretation of 11.04.02 which is the needs based sick leave scheme is a safety net for staff, but will not provide fully paid sick leave for staff with conditions requiring absences of an uncertain length. It mitigates against any such interpretation. What I say in relation to that Commissioner is that the requirements of 11.04 are quite clear. The first 13 weeks is taken as a given, approval beyond the 13 weeks, as it says in the first subparagraph 11.04.04 is contingent upon the development of a return to work plan.

PN195

If a return to work plan is not developed then the question of whether any approval of paid sick leave beyond the 13 weeks, or a period of sick leave without pay for up to 12 months in the first instance, is included, is moot. Until such time as there was a return to work plan then neither an approval beyond the 13 weeks nor an identification of the specific period of leave without pay was able to be determined. In that case the answer was well it is sick leave without pay because the 13 weeks has been expired and in settlement of the dispute a slightly longer period was paid up until the then medical certificate and we say that is the logical interpretation of this agreement.

PN196

Commissioner in relation to subsequent considerations shall I say, should the Commission not accept our argument on that point, I have a couple of further points that I wish to make in relation to the matter. This matter is a settlement of a dispute in accordance with section 170LW of the pre-Reform Act. It is uncontentious that the provisions of section 170LW involve and empower the Commission in relation to section 111. Indeed, it’s on that basis that my colleague seeks to have particular orders made. It is my submission Commissioner that section 111(1)(g) subparagraph (3) provides that:

PN197

The Commission may dismiss a matter or refrain from further hearing or for determining the industrial dispute or part of an industrial dispute if it appears that further proceedings are not necessary or desirable in the public interest.

PN198

Commissioner in relation to this I did want to provide to the Commission the case of Joy Mining, I provided a copy to my colleague. For the record this is a decision of Munro J marked as S print 21133 of the Commission dated 25 September 2000. It is a decision in Joy Mining and the question of determination of the certified agreement. But Commissioner if I might draw your attention to page 13, paragraph 38.

PN199

THE COMMISSIONER: Yes.

PN200

MR WEDGWOOD: In that about the fifth line towards the end of the line:

PN201

In that context it would appear appropriate to identify the notion of public interest –

PN202

Just skipping over a bit:

PN203

Considerations which solely affect either or both of the parties may be relevant but only to the extent that they overlap the public interest. The more fundamental considerations relevant to the public interest must be those which have most substance to what are perceived to be the interest and welfare of the community.

PN204

Commissioner, if I may then take you to page 16 paragraph 46, on the second line Justice Munro says:

PN205

I do not consider that an adverse affect on the public interest is established by reason of any immediate loss of entitlement to the conditions provided for in the agreement. The Act does not provide for an unconditional right to indefinite continuation of the terms and conditions of an expired agreement.

PN206

Commissioner in that case Justice Munro terminated the agreement of Joy Mining, but it is regarded as the precedent case in interpreting what the public interest is. What we say Commissioner is in this particular case the Commission may consider under 111(1)(g) the question of whether or not the public interest is served in this particular case. It is not in contention between the parties that this agreement is no longer in force and the only consideration in this case is the individual rights of Mr Wijetilaka. We would say that the Commission is at liberty to decide that if you were not to accept our arguments on the actual interpretation of the agreement and what the words mean that it’s still open to the Commission to dismiss the matter under 111(1)(g) on the basis that – I may correct quote the words:

PN207

Further proceedings are not necessary or desirable in the public interest.

PN208

The fact that the public interest may not be in Mr Wijetilaka’s interest is exactly the matter which Justice Munro addressed. Commissioner in relation to the consideration then of my colleague’s for a sum I think in the order of $80,000 plus the reversionary rights in relation to some sick leave – sorry some annual leave and long service leave, which I accept that if the Commission were to form the view that the entitlement was to be granted, those subsequent things flow within the limitations of the agreement, because there are some caps on annual leave for instance. So I don’t dispute that contention if we get to that point, which I submit we should not.

PN209

But in consideration Commissioner I ask that the Commission take into account the action of Mr Wijetilaka in considering the question of what might be an appropriate settlement to the dispute. In that case Commissioner, I do want to refer to a very recent decision of the Full Bench and again I’ve provided a copy to my colleague. For the record Commissioner this is a decision in the numbering, AIRCFB34 of the 17 January 2007 in an appeal by Allan and it relates to a workplace injury and work cover et cetera. If I may take the Commission to page 4 of the document in paragraph 19 it refers to the environment in which this decision was made and I point out to the Commission for the sake of relevance to these proceedings that the last dot point there makes the point that in this case Mr Allan had been absent through illness for a continuous period exceeding 13 weeks, a not uncommon term in the clauses such as this.

PN210

Then Commissioner if I may take you to paragraph 20 about the middle of that second paragraph – the middle of the paragraph which says:

PN211

Clearly it was Australia Post’s right under the general conditions award to require Mr Allan to furnish a medical certificate or to undergo an examination by its nominated medical practitioner. While –

PN212

I make the point that this is relevant in these proceedings, Commissioner:

PN213

-while it was unnecessary for Australia Post to secure an authority from Mr Allan to have him undergo an examination by its medical practitioner, Mr Allan’s authority was necessary for an exchange of medical reports between his treating medical practitioner, and Australia Post’s nominated medical examiner. Australia Post asked Mr Allan for such an authority, he did not give it.

PN214

I draw the analogy in this case Commissioner that for a long period of time
Mr Wijetilaka declined to give the University such an authority and when he did so, he imposed we would say unreasonable restrictions upon it. But further Commissioner in this case the Full Bench formed this view and I refer you to the beginning of paragraph 21:

PN215

We agree with the conclusion reached by Senior Deputy President Acton that Mr Allan’s unwillingness to give an authority for exchanges of medical reports as between the medical practitioners and Australia Post was of itself sufficient conduct justifying the termination of his employment.

PN216

So such action in that case Commissioner was found to be not merely warranted against any finding in favour of Mr Allan in terms of any entitlement, but sufficient to justify termination of employment. I say in consideration of any settlement of this dispute that that should be taken into account in considering what might be an appropriate settlement of the dispute should we get to that point. Further Commissioner in relation to the question of what might be an appropriate resolution of the dispute should we get to that point, we say that consistent with general principles Mr Wijetilaka was obliged to mitigate the circumstances that he found himself in.

PN217

Commissioner I don’t have the precise reference and I do apologise for that, but there exists a document from Mr Wijetilaka and my colleague may – the University pointed out on a number of occasions that Mr Wijetilaka and it was conceded in submissions by my colleague – had the capacity to access some entitlement such as annual leave and long service leave and indeed, towards the end of this matter he chose to do so finally. But indeed that was available to him at a much earlier stage and in fact from that piece of correspondence from
Mr Wijetilaka it had been identified to him, that he was almost actually at the stage where his annual leave accrual was getting to the point where he would cease to accrue annual leave at all because of the cap contained in the University’s agreement.

PN218

We would say that that is a factor to be considered in that Mr Wijetilaka deliberately chose not to mitigate his circumstance in the way which was freely available to him and he can hardly regard the fact that he chose not to do so as an argument against the University. It was his own deliberate choice and the University had pointed out to him that that was available once it had identified that it regarded the agreement as, we’ve said here today, as having a cap of 13 weeks and any approval of any paid sick leave beyond 13 weeks was contingent upon the provisions of 11.04.04 being satisfied. Just for completeness Commissioner I’m advised that that document is attachment 25, no sorry Commissioner it is attachment 27 to the University’s submission.

PN219

On the second page of that, of his letter dated 20 September 2005, Mr Wijetilaka again on the last paragraph, he says:

PN220

As per my letter of 15 August I do not want to access my annual or long service leave as they are not sick leave entitlements. Once I reach the maximum prescribed, I will be prepared to access my annual or other leave.

PN221

That’s a response to an earlier letter from the University which I think is the previous one which is document 26. So we would say Commissioner those are factors to be considered in any deliberation as to whether or not there should be any award in relation to this matter. We would also say Commissioner that the Commission is entitled to take into account that Mr Wijetilaka engaged in other employment, presumably whilst both an employee of the University whilst on leave both paid and unpaid from the University and presumably subsequently, in relation to the business known as Passionfruit Solutions which in his own evidence today he accepts – sorry, he testifies that he is in effect Passionfruit Solutions that it’s been in business between eight to 10 years.

PN222

That whilst it’s income has been low in any year it’s tax advantage, given issues like depreciation et cetera have been significant in terms of benefits to him and that we say that those factors should be considered as well in any consideration of any mitigation that any award might be justified. In conclusion Commissioner, may I make the point that we say in agreement with our colleague that the fundamental issue here is the interpretation of 11.04 in particular .01 through to .04 subparagraphs of that. .01 contains and .02 contain three primary qualifications.

PN223

We say that the only way in which people will be entitled to take sick leave with pay as in this clause are in accordance with 11.04.04 which clearly does impose a cap of 13 weeks and approval of paid leave beyond that 13 weeks is contingent on the development of a return to work program which may also involve unpaid leave either as available options. Contrary to my colleague’s interpretation we say that the return to work plan must be developed before any paid leave beyond the cap of 13 weeks is to be granted. We say that the documentary evidence shows that the illness arose out of or in the course of the employment.

PN224

Now I accept my colleague’s contention that it may be that that period of absence may not be compensatable, but that is a different question from whether it arose out of the employment. All Mr Wijetilaka’s documentary evidence that is medical certificates that refer to the nature of his illness, prescribe that that illness is due to his employment. Indeed, his own witness evidence today says so. My submission is my colleague’s assertion that it probably wasn’t compensatable is a moot point. Mr Wijetilaka never applied for worker’s compensation and indeed even if there’d been a negative assessment that may or may not have made clear whether it was not arising out of employment or simply not compensatable because the two are not synonymous.

PN225

THE COMMISSIONER: Can I just ask you this? If I took your earlier position to be you didn’t pay any of the original February to June payments because one certificate was backdated and several other certificates were poorly defined that no medical condition was set out. You then go along to a conciliation conference and then say you agreed to pay – I think you said – you agreed to pay when faced with that detailed certificate which was a work cover title certificate from a Doctor’s name I can’t remember. My question is why did you accept that when that was clearly on its face a work related certificate? Why did the University agree to pay?

PN226

MR WEDGWOOD: Well Commissioner it’s common practice and in fact the normal practice is that that initial period is paid to enable you know, in most cases the determination of an application et cetera, the usual process is that that is then rebated by the employer’s insurance company if that is accepted. If however, the application is rejected then the normal process would be that the paid sick leave has been paid that is if it is not compensatable then the person is still entitled to the paid sick leave in accordance with the provision. But what we say is that the contention of entitlement to leave without pay in the context of reading 11.04.01 and 11.04.04 is that the initial period of 13 weeks is undisputed it is an entitlement in any case, right. It is only after that that the question of whether or not a longer period is entitled or not.

PN227

THE COMMISSIONER: But that’s generosity that goes beyond the provisions, because it says there that they will be entitled to sick leave with pay but not for an injury that arises out of or in the course of their employment and he says and the Doctor on which you rely say, it has arisen out of the course of their employment. Why did the University pay?

PN228

MR WEDGWOOD: Well because Commissioner, the rest of the clause says:

PN229

Will be entitled to take sick leave with pay as in this clause sufficient to permit them to recover from their personal injury, illness or incapacity.

PN230

We say that 11.04.04 says that the approval beyond the 13 weeks is contingent upon the return to work that the restriction on further payment is a part of the condition of 11.04.01 and 11.04.04.

PN231

THE COMMISSIONER: Yes.

PN232

MR WEDGWOOD: That is that the initial 13 weeks, right is granted. As I say if it turns out that the matter is compensatable then the insurer pays it back.

PN233

THE COMMISSIONER: But if it’s not compensatable but it’s still work related there’s no entitlement is there?

PN234

MR WEDGWOOD: No, we would say that the entitlement is the initial 13 weeks and that it’s only beyond the 13 weeks in accordance with 11.04.04 that the question of the restrictions in 11.04.01 and .02 are necessary to be complied with.

PN235

THE COMMISSIONER: So what you are saying is that people who are ill and that does not arise in the course of their employment, that is they do something at home, they will be entitled to sick leave with pay as per this clause. That is you get 13 weeks and then you go on and more than that, or a different situation, as per a return to work plan. If on the other hand you are a person who is ill and that has arisen in the course of the employment then – well it’s kind of silent on that. What you are saying - - -

PN236

MR WEDGWOOD: Yes, Commissioner, and if as you point out by the question I think, if the answer is the University could have technically refused any sick leave at all, on that interpretation of the agreement and I think that’s a legitimate interpretation of the agreement and has been overly generous in terms of providing more than 13 weeks, even more so the consideration in settlement of this dispute should there be any further award to Mr Wijetilaka.

PN237

THE COMMISSIONER: Yes, but anyway getting back to the point, the practice of the University is that if it’s a workers comp matter they will pick up, you pay them the 13 weeks in any case, if the insurance company then admits liability you get that back from the insurer, if they don’t admit liability and the thing goes off and battles for the 25 years, you certainly don’t take that 13 weeks back.

PN238

MR WEDGWOOD: No Commissioner, that’s a matter of practicality and you know, it’s also the standard practice because of the fact that for better or worse workers comp insurers don’t give you instant decisions and that those – and as I say as you see from the Alan case which is covered by the same workers comp insurer – sorry no that’s not true it’s a Commonwealth Government employer – but the 13 weeks is a relatively standard practice that sort of says within that time if someone makes a compensation claim then that allows for that process to be gone through and certainly it’s the case that if you know, if a work cover application were to be made and then rejected, then it’s not the case that the whatever leave has been - - -

PN239

THE COMMISSIONER: Right, so but I interrupted you but go on.

PN240

MR WEDGWOOD: That’s fine Commissioner. My second point again would be that the exemption even if one doesn’t accept the exemption in relation to the employment question the exemption still contained in 02 which is that:

PN241

Not provide fully paid leave for staff with conditions requiring absences of an uncertain length –

PN242

On the facts of it this was so uncertain that it went on for almost 18 months until Mr Wijetilaka’s departure of employment from the University and the third point that I make in relation to that was that in our submission 11.04.04 makes the payment of paid sick leave beyond the 13 weeks subject to approval as part of a return to work plan and that that is a requirement, a condition precedent for further payment and that’s our submissions. Do you have any further questions?

PN243

THE COMMISSIONER: In relation to that just remind me of your position, after June and you came to a settlement you then took the view that I think there was that letter of three paragraphs – yes the 14 June letter that’s right.

PN244

MR WEDGWOOD: Yes, Commissioner it’s in University attachment 20 I have a feeling it may be in the CPSU documents.

PN245

THE COMMISSIONER: Yes, exactly. Right at that point you sought various information from Mr Wijetilaka didn’t you?

PN246

MR WEDGWOOD: Yes.

PN247

THE COMMISSIONER: They were preconditions to commence the return to work plan?

PN248

MR WEDGWOOD: Correct.

PN249

THE COMMISSIONER: You say it’s at that time, if we got that material and we’ve got – we can develop the return to work plan we’ll then give consideration to a number of things including continued paid leave.

PN250

MR WEDGWOOD: We would say consistent with 11.04.04.

PN251

THE COMMISSIONER: Yes and what did he not do, at least up until to December?

PN252

MR WEDGWOOD: He did not provide the authority for the communication between the University and his medical practitioner. He identified in a letter I think around about late August – no sorry he identified on 20 September in attachment 27 the University’s submission.

PN253

THE COMMISSIONER: Yes, what did he say there?

PN254

MR WEDGWOOD: At the bottom of that paragraph he says:

PN255

While I have no objection to the University initiating discussions between my treating Doctor and facilitator there are privacy and confidential issues I do not want to provide a blanket authority for medical information. Please specify what the issues are and what you require from my treating Doctors and I will provide my Doctors with this information as appropriate with instructions to access my records strictly in accordance with these instructions and no other material to be released. As above, I cannot provide a blanket authority as the Doctor is my family Doctor and has access to records of my wife and son intermingled with my records and I wish to protect their privacy and confidentiality.

PN256

Commissioner if I was Mr Wijetilaka treating medical practitioner, I would regard that as a professional slur.

PN257

THE COMMISSIONER: Well don’t worry about that.

PN258

MR WEDGWOOD: That the suggestion provided by the University as it’s standard process which is in document attachment 30 which Mr Wijetilaka eventually at the beginning of December 2005 provided with a series of handwritten amendments is the standard authority provided to all other medical practitioners by the University and has never resulted in – as far as I’m aware – in the disclosure of medical information relating to family members and in fact, the authority is quite specific that the employee nominates that I understand that this consent only relates to my current illness as described below.

PN259

THE COMMISSIONER: All right so you found that the position until December frustrating, but then it was said that at least then he did give that consent but only on the basis of written information?

PN260

MR WEDGWOOD: That’s right Commissioner.

PN261

THE COMMISSIONER: Now what’s wrong with that because I get a lot of information usually with these Doctors is written and no one necessarily rings each other. But you tell me what your concerns were.

PN262

MR WEDGWOOD: Well Commissioner what then flowed was a subsequent series of interactions, but at no point, at no point in fact quite the contrary, at no point did any treating medical practitioner say Mr Wijetilaka may be able to return to work. In fact, quite the opposite, every medical certificate say is unfit for duty from one period to the next. So it’s a bit difficult for the University to devise a return to work program when every medical certificate says he is unfit for duty.

PN263

THE COMMISSIONER: Yes, but why wouldn’t – given that authority in July doesn’t that enable the University to write to Dr Paton and to write to Dr O’Shea and say we are interested in knowing his current status and what you see as his future ability, or his ability to attend work on some basis in the future. Why didn’t you do that?

PN264

MR WEDGWOOD: The University did.

PN265

THE COMMISSIONER: Yes.

PN266

MR WEDGWOOD: Yes, there’s correspondence I think it’s in attachment CPSU, I think it’s about 50.

PN267

MR PEARCE: Commissioner, can I just for the purposes of this particular argument, just draw your attention CPSU attachment 42 and to our correspondence from Dr Sue Paton to the University, or a medical certificate from Dr Sue Paton to the University which of 8 July 2005.

PN268

THE COMMISSIONER: Yes.

PN269

MR PEARCE: Dr Paton - - -

PN270

THE COMMISSIONER: But that’s not – it’s a bit flimsy isn’t it? It’s a bit small what she says there – I don’t know, develop a return to work plan.

PN271

MR PEARCE: What she’s I mean - - -

PN272

THE COMMISSIONER: That’s not really an engagement with a medical – it’s just a – she wrote this to her client didn’t she? Is it she?

PN273

MR PEARCE: Yes, I mean what she states is a graduated return to work plan may soon be possible subject to a suitable work environment. In this case a fitness to return to work in our view would necessarily involve a more thorough return to work plan being devised. So I guess that the point being the discussion of what was occurring in the workplace to which Hiran had alerted the University in his grievance was in fact pivotal to being to his fitness to return to work being given by his treating practitioners – they were trying to alert the University to the fact that this was an issue for Hiran that was affecting his health and that it was something that would need to be addressed before Hiran was fit to return to work. This is as far back as July 2005.

PN274

THE COMMISSIONER: Well Mr Wedgwood what do you say? What’s a short coming in using this consent form to write to these two Doctors?

PN275

MR WEDGWOOD: There was a limitation which made it more difficult just because of the practicality but in the end the University did write and there was an attempt at correspondence. But to take the Commissioner to, if you go to CPSU 42 which says, he is unfit until 22 July 2005.

PN276

THE COMMISSIONER: Wait a second, sorry.

PN277

MR WEDGWOOD: CPSU 42.

PN278

THE COMMISSIONER: Yes.

PN279

MR WEDGWOOD: If one then goes to CPSU 43 which is Dr Paton’s next certificate it says he remains unfit for work from 22 July to 12 August and he has an additional inter current problem requiring investigation. If one then goes to 44, 12 August he remains unfit until 26 August. If one then goes to CPSU 45 he is on 9 September remains unfit. His next review is 23 September and then for instance, if one goes to CPSU 47, again Dr Paton’s certificate says he remains unfit for work for a further three weeks from 30 November.

PN280

So throughout all this time he remains unfit for duty that is he can’t return to work. But the difficulty my colleague has with the assertion that he is unfit for work because of the work problem is that that’s a self defeating argument. That is, the illness arises from the nature of his employment which makes it precluded by 11.04.01.

PN281

THE COMMISSIONER: Yes, but you still haven’t answered my question. I know that point and that is after December what steps did you take, or were there steps able to be taken to enable your people to contact those Doctors so that a return to work plan could start to be kicked off? Even if I accept that after July the actions of the applicant or his representatives prevented you from moving to the 11.04 process?

PN282

MR WEDGWOOD: Sorry, as I understand it Commissioner there it’s not in contention that subsequent to that there were three pieces of correspondence between the University the University’s return to work coordinator.

PN283

THE COMMISSIONER: Yes.

PN284

MR WEDGWOOD: Which was then on 4 April which is attachment 31 to the University submission, Dr O’Shea saying that he remains unfit till 28 April. They seek information about whether he might be able to return to work and on what circumstances. Asked that he be contacted to discuss in further detail. Then at attachment 32 is Dr O’Shea’s response. Says at the bottom of that:

PN285

Mr Wijetilaka could potentially be fit for work by the beginning of May.

PN286

That’s 2006, then in relation to that response of 11 April and it addresses in those some issues raised by Dr O’Shea and what had been done by the University in relation to those and the question of further steps et cetera.

PN287

THE COMMISSIONER: Well apart from – it seems to have taken a long time between December and April to write to Dr O’Shea.

PN288

MR WEDGWOOD: Sorry, that’s because Commissioner all of the medical certificates provided to the University indicate that he was unfit for work for that continuing period.

PN289

THE COMMISSIONER: Okay, I probably misunderstood you, let me just go back to the clause. You say that if not necessarily in this instance, but if an employee is ill and after 13 weeks people sit down and develop this return to work plan which might be something as simple as getting a Doctor’s certificate, the treating Doctor’s certificate to say his heart condition is now on the mend and he will be able to come back to work in five months time – that is eight months since the heart attack – you are saying that instance, having got that information round about five months, the University would then say right we can develop a return to work plan, that is at five months you’ll come back full time or at four times you come back part time and you say in that instance the University would decide and we are now going to approve full payment until you return to work. As part of the plan we don’t see – we don’t hear from you for five months you’ll then come back, that’s what would occur?

PN290

MR WEDGWOOD: Sorry, it may be Commissioner or may provide for leave without pay for up to a year with a guarantee of a return to his position

PN291

THE COMMISSIONER: Yes, but are you saying that if in fact the Doctors or the medical situation is the person is unfit for the next five months we say nothing whether he or she is going to be fit after five months, we are just saying at least for now. Are you saying in that instance, that kind of information does not allow a return to work plan to be established is it?

PN292

MR WEDGWOOD: In this particular case it wasn’t able to be Commissioner whether or not that might have been I think there are two factors. The limitations on the capacity of the University to interact did provide some delay in the process and during this period there were continuing discussions between the University and the CPSU about whether there might be a resolution of that dispute. Now in the end of the day in relation to Mr Wijetilaka’s continuing employment because at the time the area in which Mr Wijetilaka was employed, there were redundancy procedures going on in relation to some of their staff. At the end of the day that’s what settled the question of continuing employment so we are only back to the question of interpretation of the agreement.

PN293

So, those discussions contemplated around that and it was indeed in the final proceedings in conciliation that enabled the resolution of the continuing employment question and all we’re left with now is the question of what period if any of further leave may or may not he may be entitled to under the agreement.

PN294

THE COMMISSIONER: Yes.

PN295

MR WEDGWOOD: But we say fundamentally Commissioner to get to the point that you are contemplating requires an acceptance of the medical practitioner’s assessment that the cause of the illness was the employment.

PN296

THE COMMISSIONER: Yes, that’s your number one leg I understand that. If we move away from that I take it what you say is that a precondition for payment beyond 13 weeks is the development of the establishment of a return to work plan and you cannot establish that return to work plan and we were unable, you were unable to establish that return to work plan because for the first four or five months during June and December you had no access to medical consultation, or medical access to that – and that after that it was either restricted or it came back in the form that was unhelpful, so is that your position?

PN297

MR WEDGWOOD: Yes Commissioner, plus the factor was that there was also ongoing discussions between the parties which you know may have led to and in fact eventually did lead to a settlement of the ongoing employment question, if I call it that.

PN298

THE COMMISSIONER: Yes, thank you Mr Wedgwood. Yes Mr Pearce.

PN299

MR PEARCE: There’s just a couple of things I would like to address based on that. Firstly, my colleague makes reference to Dr Paton’s medical certificates and refers to clause 11.04.13 and specifically I’m assuming to the sentence in brackets in the third paragraph there which is:

PN300

Generally an employer is not bound to accept the certificate. However, so the staff member should be aware of the amount of detail likely to be required to satisfy the University –

PN301

The clause does also say that:

PN302

The certificate should only contain the Doctor’s own observations of the patient and any reference to symptoms referred to by the patient but not observed should be clearly identified. Confidentiality is the patient’s rights and details may not be included without his or her consent.

PN303

My colleague made reference to the history of the provision and said that in effect that we were saying that the provision on our reading was intended to provide for sick leave indefinitely. That’s not what we’ve said,. We’ve never in fact said that. We’ve said that the provision doesn’t provide for an ordinary amount to which an employer – sorry an amount of paid sick leave to which an employee is ordinarily entitled. As I said in my submission it is indeed a very generous sick leave arrangement.

PN304

The 1997, 2002 and 2003 agreements the first provision is identical throughout those three agreements and that is in this case 11.04.01. We say and I put this into our written submission that the changes to the sick leave provision represented both a shift in provisions orientation and the process from the 1997 agreement to the 2002 2003 agreement. It was the 2003 agreement that established the needs based principle on which the University’s sick leave scheme would then operate we argue. It’s this needs base principle that informs the application of the provision and this is very much a case about how an employer manages an employee with a mental illness, like depression where they are perceiving their workplace situation possibly delusional and possibly in a negative perception. Or possibly having a negative perception of what’s going on in the workplace.

PN305

The other point that I wanted to make was that the work cover certificate that
Mr Wijetilaka presented to the University is just a medical certificate and the opinion of the Doctor doesn’t establish that Mr Wijetilaka’s illness did in fact arise out of or in the course of his employment. It is just an opinion,
Mr Wijetilaka has said that to him. Mr Wijetilaka has told the Commission today that that is the way that he feels. That’s never been established. It is not a practice of the University to require employees when they access this particular entitlement to prove that they didn’t in fact – or that their illness wasn’t in fact arising out of or in the course of their employment. That would obviously be absurd if they were to do that. Does that exclude people who pick up a cold at work from accessing their sick leave entitlement? If there’s a cold going around at work and your manager or supervisor asks you to prove that you didn’t pick the cold up at work.

PN306

Mr Wijetilaka made the decision which was perfectly reasonable and appropriate under the agreement to pursue this issue of bullying which he felt was at least in part the cause of his illness through the grievance process set out in the agreement, not as a claim for workers compensation. In doing that he was attempting to alert the University to a situation that he felt that he was going through and seek their assistance in resolving that situation consistent with the grievance procedures in the agreement.

PN307

THE COMMISSIONER: What happened to that grievance?

PN308

MR PEARCE: It never got anywhere.

PN309

THE COMMISSIONER: What does that mean? Was it pursued or wasn’t pursued?

PN310

MR PEARCE: No, no in order to follow the grievance procedures the University – you are perhaps better to discuss this actually – sorry do you want to?

PN311

THE COMMISSIONER: Yes, Mr Stephens, yes.

PN312

MR STEPHENS: The grievance had some considerable delays in its negotiations but I understand it is actually still being heard through another forum and no longer between the parties or in accordance with this agreement, it is now being heard by a third party external to that process now.

PN313

THE COMMISSIONER: Okay, yes sorry Mr Pearce.

PN314

MR PEARCE: We as I said previously, we’ve always recognised that the scheme was not intended to provide uncapped sick leave for employees suffering from illnesses or injuries requiring an uncertain length of recovery. That is why we have always discussed with the University some kind of settlement, be that in terms of a return to work plan that was suitable to Mr Wijetilaka or some kind of monetary settlement to the circumstances. My colleague raised the issue of the public interest and referred to the Joy Mining machinery case.

PN315

I would point out that the University agreed when agreement was reached in relation to Mr Wijetilaka’s acceptance of a targeted voluntary redundancy that he pursue this claim in the Commission and that is this dispute as to whether or not he was entitled to sick leave in accordance with clause 11.04. I think it’s a bit rich now to get up and suggest to the Commission that the Commission’s powers of private arbitration would not be in the public interest, be that as it may. The other thing that I wanted to point out was that the case, the appeal by Allan.

PN316

My understanding is that in this particular case there was provision for Australia Post to require the employee to have a medical assessment. In this particular provision the requirement is that the discussion and consultation take place after an employee has taken 13 weeks off consecutive paid sick leave. That’s the phase that we got to in relation to Mr Wijetilaka’s situation. Just to restate what I said again that there is no cap placed on the amount of paid sick leave to which an employee is ordinarily entitled. While my colleague may think has absurd implications, well perhaps it dos.

PN317

I don’t think the parties when they were negotiating this particular provision anticipated a situation like the situation that we are delaying with today and the shortcomings of the provision have become quite clear. We have an employee who is suffering from a mental illness. They believe that their work situation is the cause of that illness. They believe that the colleagues they work with are bullying them and harassing them. Also that they have been unduly persecuted if you like by the University’s decision to apply the provision and indeed the rigours of clause 11.04.13 to the letter in Mr Wijetilaka’s case

PN318

I imagine however there is no evidence, it’s probably acceptable for employees of Macquarie University to provide medical certificates which state that they are unfit to attend work. Certainly I’ve seen it used commonly previously I wonder how often it is the case that Macquarie University tend to adopt that particular analysis. This I think has led to Mr Wijetilaka’s perception that he was being discriminated against and indeed inevitable, made the development of a return to work program as is envisaged in here, around the time that he hit the 13 week mark ultimately impossible to achieve. Thank you Commissioner.

PN319

THE COMMISSIONER: Mr Pearce, let’s go back again. From June until December there was no approval of contact with your member’s medical people?

PN320

MR PEARCE: Yes.

PN321

THE COMMISSIONER: Well how could a return to work plan be considered in that or established in that situation?

PN322

MR PEARCE: Look I guess in answering this question I go back a step because this is fundamental to our argument. The way the University approached this particular situation and indeed, the kind of health issue that it is, should inform the way in which the University approach it. Now I think that by repeatedly rejecting medical certificates that Mr Wijetilaka was providing which demonstrated that he wasn’t fit to attend work, and then by not seeking to treat the matter sensitively once they were aware. In fact, they were aware from the outset he went to see the counsellor. The counsellor said this is the situation, in my view reject it. Their own counsellor’s Doctor’s certificate.

PN323

So they were cognisant of his situation. This scheme in order to operate needs to be informed as I’ve said previously by that needs base principle. Once we got to that stage where we’d been through a drawn out process of disputing the merits of Mr Wijetilaka’s various Doctors certificates which state his unfitness to attend work, my view is that he had developed a severe distrust for the intentions of the University. That’s you know why it was so difficult from that June period up until January where we were working with our member in order to develop – or in order to get Mr Wijetilaka to a point where we could develop this return to work program and get him back into the workplace. I think that that is fundamentally why it was so difficult to get Mr Wijetilaka’s consent. That’s our view.

PN324

THE COMMISSIONER: Well you don’t disagree that the certificates that were presented through February into May just weren’t enough? That the University and I’m looking at item 15 and item 14 that the University on 12 April and on 4 May said to the employee look this is just not, the information is just not enough. Then in response on 13 May, this Dr Paton says, he is being treated for anxiety depression. She then on 10 June she doesn’t seem to – she goes back to her old ways.

PN325

MR PEARCE: Once she’s made clear what it is that he’s being treated for yes.

PN326

THE COMMISSIONER: All I’m saying is that you say that the University has taken some kind of a hard line, I’m not sure what that means. So he gets into a state about this, about their attitude, but if objectively the University – or not objectively, if legally or in applying the certified agreement the University is acting correctly and then the employee finds that very unacceptable and unfair, and no one is suggesting they are – then when you then move to the return to work plan, the University is in a no win situation. On the one hand it’s not guilty for creating the tension before, because it was only doing what the certified agreement says it can do.

PN327

So then you move to the next step which is let’s develop a return to work plan and the response from the member is, or the employee is I’m just so upset about everything that’s happened in the past five months I just can’t – I’m distrustful of you and Dr O’Shea says he is very distrustful, et cetera, et cetera. Well I mean that’s self created isn’t it, how can the University have any, what can it do in that instance?

PN328

MR PEARCE: Yes.

PN329

MR STEPHENS: If I may Commissioner?

PN330

THE COMMISSIONER: Yes.

PN331

MR STEPHENS: During that period from June to December there was a lot of discussions between the union and the University in relation to the grievance that Mr Wijetilaka had put in place, had put in to deal with the issues he perceived were happening negotiations around dealing with that grievance as well as addressing the concerns that he had whether valid or not, they were concerns that he had about providing access to his medical records. Those negotiations concluded in around September October where we then requested for a new form to be sent out and then a few months later - well in those in the final two months the form was sent out and then returned and finally was received in December from the University.

PN332

There were those restrictions put on place but at the same time we also negotiated that direct access could be had with the University which I believe was - - -

PN333

THE COMMISSIONER: That was in January.

PN334

MR STEPHENS: Yes, so in that same period just after that with the University saying those limitations were not good. We then, okay we’ll offer you more and greater access and then our member approved that access and that’s confirmed in I think attachment 54.

PN335

THE COMMISSIONER: Yes, I remember that thank you.

PN336

MR STEPHENS: Attachment 53 sorry. That sort of leads to why there was that drawn out period because we were dealing with a number of issues all at once not just the signing of the permission to see the Doctor at that time. Even after we had offered the University to have greater access, they didn’t actually ever take up that access at all for them to want to call the Doctor and to have a verbal discussion with him. So it was obviously never needed, even though it was offered.

PN337

THE COMMISSIONER: Yes, sorry Mr Pearce I did interrupt you. Is there anything else?

PN338

MR PEARCE: No.

PN339

MR WEDGWOOD: Commissioner?

PN340

THE COMMISSIONER: Yes.

PN341

MR WEDGWOOD: Sorry, if I just may make two short points. Firstly in relation to the question of the grievance it is not at issue in these proceedings and is dealt with elsewhere. I simply say for the public record the University’s position is that it has complied with all its obligations in relation to that matter. In relation to the most recent point, Commissioner, I make the point that document 24 identifies that on 9 August a copy of the letter to the CPSU, a copy of the reply consent form is attached to that letter, as noted on the letter.

PN342

THE COMMISSIONER: Where is that sorry? I know you told me as noted in the letter, what part of the letter?

PN343

MR WEDGWOOD: Document 24 attached to the University’s letter of 9 August on the second page under next steps:

PN344

However the first step in terms of developing a durable work will be to obtain the approval of Mr Wijetilaka for discussion to be met between his treating Doctor and Mr Greg Nichol.

PN345

On the front page it says, posted 9th of the 8th, plus consent form.

PN346

THE COMMISSIONER: Okay, yes anything else? Okay well the Commission reserves its decision and will issue in due course.

<ADJOURNED ACCORDINGLY [11.58AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

HIRAN WIJETILAKA, AFFIRMED PN41
EXAMINATION-IN-CHIEF BY MR PEARCE PN41
EXHIBIT #CPSU5 WITNESS STATEMENT OF MR HIRAN WIJETILAKA PN48
CROSS-EXAMINATION BY MR WEDGWOOD PN51
EXHIBIT #MU1 TAX RETURN PN80
THE WITNESS WITHDREW PN84
EXHIBIT #CPSU 6 WRITTEN SUBMISSIONS PN88
EXHIBIT #CPSU 7 RESPONSE TO SUBMISSIONS PN88
EXHIBIT #MU2 WRITTEN SUBMISSIONS PN142