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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 19057-1
SENIOR DEPUTY PRESIDENT DRAKE
C2007/3513 DR2007/283 C2007/3625 C2007/3673 U2007/376
s.170LW - prereform Act - Appl’n for settlement of dispute (certified agreement)
Mr Ron Lever
and
Australian Nuclear Science and Technology Organisation
(C2007/3513)
SYDNEY
10.16AM, FRIDAY, 29 AUGUST 2008
Continued from 27/8/2008
Hearing continuing
PN2864
MR LEVER: Before I go into the box, your Honour, Mr Bloom is here. He's working on some of his statements. He didn't get that work finished. But I'll see, after I've finished the cross-examination, I'll see what we can do.
THE SENIOR DEPUTY PRESIDENT: All right.
<RON LEVER, ON FORMER OATH [10.16AM]
<CROSS-EXAMINATION BY MR JAUNCEY, CONTINUING
PN2866
MR JAUNCEY: Mr Lever, I think when we left off we'd got up to about late April 2005 and I think there has been some evidence that you had had some discussions with Ms Risby and then provide a medical certificate and again certifying you as unfit to work until 20 May 2005. Mr Lever, around 13 May 2005 Comcare declined liability in respect of your claim, did it not?---Yes.
PN2867
And at some time around about 18 May of 2005 you organised to have delivered to ANTSO another medical certificate, again certifying you as unfit for work once again up until 30 June 2005?---I don't have the certificate in front of me, but I'll have to accept your word for that.
PN2868
Yes. I think it's in your affidavit and I think it's one of the certificates in RUL4?
---Yes, I've got it.
PN2869
And did it provide you as unfit for work from 18 May 2005 to 30 June 2005?
---Yes.
PN2870
And you knew that that certificate was going to be provided to Comcare?---Yes.
PN2871
And the certificate made no mention of you being able to do any alternative duties, did it?---Correct.
PN2872
And between the beginning of May up to the end of June 2005 you didn't pick up the phone to make a call and you didn't send an email or made any other direct contact with Ms Risby or Dr Hall or Mr Ellis or anyone else at ANTSO who was responsible for managing your case on behalf of ANTSO, did you?---I don't believe I did.
PN2873
And on 17 June 2005 Mr O'Shea wrote to you asking you to attend a consultation with Dr Kong on 30 June 2005 and if you wish, I'll show you the letter. I'm told that it's actually at RL23, or RUL23 to your affidavit as well as being at annexure 14 to the affidavit of Mr O'Shea?---Do you have a page number there?
PN2874
Page 60 it comes out on my copy of your affidavit and you saw from that letter that Mr O'Shea was telling you that it was in the interests of all parties to have you return to work as soon as possible, yes?---Yes. I'm reading this letter now.
**** RON LEVER XXN MR JAUNCEY
PN2875
And you would have seen from that letter that he was telling you that he had organised an appointment for you with Dr Kong on 30 June 2005, yes?---Yes.
PN2876
And you can see from the letter that Dr Kong's office or chambers at - I'm not sure if that's the correct word for doctors - but that his place of work was near Central Railway Station?---Yes.
PN2877
THE SENIOR DEPUTY PRESIDENT: I think it's rooms, Mr Jauncey.
PN2878
MR JAUNCEY: Rooms, okay, I shall use rooms, your Honour.
PN2879
So you would have been aware that you could have caught the train up to see him?---Yes.
PN2880
And you determined or decided not to go to that appointment, didn't you?---Yes.
PN2881
And on 22 June your solicitors, Employment Lawyers, sent a letter to ANTSO in response which is at annexure JJ15 of the affidavit of Mr O'Shea and in the third paragraph of that letter you would have - your solicitors referred to what they described as your ongoing incapacity for work, yes?---Whereabouts in that paragraph?
PN2882
Second line, third paragraph?---I see, yes.
PN2883
And they also said, "Presently our client is certified unfit for work until 30 June '05 and it's anticipated that his doctor
may issue a further medical certificate at that time certifying our client incapacitated for work on an ongoing basis", yes?
---That's what he's written.
PN2884
And in the next paragraph about five lines down they say that, "There is no medical evidence or indication that our client is to resume duties in the foreseeable future", yes?---It says that, yes.
PN2885
And it says in the next paragraph, "Should our doctor certify our client fit to resume duties at any point, only then would ANTSO require a medical examination under the EBA"?---Yes.
PN2886
And this letter would have been prepared on the basis of your instructions?---I did tell them to write to them, yes.
**** RON LEVER XXN MR JAUNCEY
PN2887
And you were saying at that stage - withdraw that. Now, you just didn't think it was important to go to the examination of Dr Kong?---No.
PN2888
Is that why you didn't think it was important?---That wasn't the reason I didn't go.
PN2889
Now, on 30 June Dr Pead - I'm sorry. On 25 June 2005 Dr Pead issued you with a further Comcare certificate, a WorkCover certificate again certifying you as unfit to work from 1 July 2005 until 1 September 2005, didn't he?---Yes.
PN2890
And that's certificate didn't make any mention of any ability to do alternative duties, did it?---No.
PN2891
And on 30 June - - - ?---Excuse me a minute. Could I just make a note of that, please? Thank you. Sorry.
PN2892
I'll show you a document, if I may, Mr Lever. Mr Lever, you recognised this as a Centrelink Medical Certificate issued to you on 30 June 2005 by Dr Pead, don't you?---Yes.
PN2893
And this is a certificate which you would have submitted to Centrelink in support of your plan for sickness allowance?---Correct.
PN2894
And you will see that about three-quarters of the way down the page on the left hand side it says, "Fitness for Work/Study." And it says, "In my opinion this person has been unfit for work on 24.06.05 to 1.09.05 inclusive"?---Sorry, 24.06, is it?
PN2895
24.06.05 to 1.09.05?---Yes.
PN2896
And it says, there is a question, "And the patient currently do their usual works are the - or any other work for eight hours or more per week," and you had ticked the box, "No", or Dr Pead had crossed the box, "No"?---Correct.
PN2897
Is this one of those certificates that you spoke about in consultation, in your consultation with Dr Pead?---Probably.
**** RON LEVER XXN MR JAUNCEY
PN2898
And you now assert that you were - I withdraw that. I'll come to it. Now, Mr Lever, neither you nor Dr Pead has provided any Centrelink certificate covering the period from late March 2005 up until 23 June 2005?---I don't have them here, so.
PN2899
Well, even although they were not produced Dr Pead must have actually given you a certificate to cover that area, mustn't he have?---I don't know what the procedure is as to whether these ones have to be written after a certain time or not. Dr Pead is giving you his file. What was the begin date that you mentioned there to 23 June?
PN2900
Late March when you first applied for sickness allowance?---Yes.
PN2901
Well, Centrelink wouldn't have provided sickness allowance without some sort of a certificate, would they have?---I honestly don't know. I don't remember back that far.
PN2902
Well, it's quite possible that some sort of similar certificate was provided?---I don't know, but I can make an inquiry with Centrelink and find out.
Your Honour, I should tender this document.
EXHIBIT #ANTSO4 MEDICAL CERTIFICATE
PN2904
THE WITNESS: Is this my copy, Mr Jauncey?
PN2905
MR JAUNCEY: Yes?---Thank you.
**** RON LEVER XXN MR JAUNCEY
PN2906
Now on or about 11 July 2005 you spoke with Ms Risby on the phone?---I don't know.
PN2907
Well, you spoke to her over the phone around that time?---I don't know.
PN2908
Well, she gives evidence that you did and you have no reason to disbelieve her evidence that she spoke to you over the phone at that time?---I can't say unless I hear she said I was supposedly in that conversation, that might jog my memory, but from what you're saying, I can't say.
PN2909
Well, I suggest to you that you spoke to her about the request to go and see Dr Kong and that you said that you thought that direction was entirely inappropriate and that you felt threatened by it?---Wasn't the letter dated the 17th and didn't you just say 11 June?
PN2910
11 July?---July, sorry. That's possible.
PN2911
You told her, "I shall be getting assessed under the SRC Act"?---Yes. I do remember having that conversation.
PN2912
THE SENIOR DEPUTY PRESIDENT: What is the SRC Act?
PN2913
MR JAUNCEY: The Safety Rehabilitation and Compensation Act under the Commonwealth Workers' Comp legislation, your Honour.
PN2914
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2915
MR JAUNCEY: And she would have said to you, "Ron, it's entirely appropriate for you to be assessed under fitness for duty provisions of the EBA"?---She may have said something like that.
PN2916
And she would have said, "As you know, the Workers' Compensation legislation doesn't apply to you now that your claim for Workers' Compensation has been declined by Comcare"?---That may have been her views.
**** RON LEVER XXN MR JAUNCEY
PN2917
Well, she may have said it?---I don't know.
PN2918
And she said, "If we're going to facilitate a return to work program for you under the EBA we will need your cooperation?---I can't remember whether she said that or not.
PN2919
And on 15 July you spoke with Dr Hall?---From memory I think that's right. What - I have an annexure on that, don't I, somewhere?
PN2920
Somewhere or other, and if you cast your mind back to that conversation. Dr Hall would have said, "Ron, how are you? Is it possible for you to give me an update about your health and whether or not you're going to be able to come back to work ANTSO"?---I think I've written a contemporaneous note about that conversation.
PN2921
Well, if you can just think about your recollection now. Would he have said something like that?---Would you repeat what you said?
PN2922
"Ron, how are you? Is it possible for you to give me an update about your health and whether or not you're going to be able
to come back to work at ANTSO"?
---I'm not sure. He may have said something - something like that.
PN2923
And he would have said, "I'm concerned about your medical certificates from your GP. They're saying that you're not fit to work."
Would he have said that?
---Yes.
PN2924
And he says that he told you, "You're not able to come back to work at ANTSO without a medical clearance from me which I can only give if you come in for an appointment with me"?---He may have said that too, yes.
PN2925
And he said, "Without a medical certificate saying that you're fit for duties, we can't do anything about returning you to work"?---He may have said that too, yes.
PN2926
"It also seems impossible to work on rehabilitating you if you continue to provide us with certificates that say that you're completely unfit for any duties"?---I don't know how far that conversation went, so I can't say whether all that was said or not, but something along those lines, or words to that effect.
PN2927
And you told him, "My medical certificates are entirely valid"?---No. I don't think I used those words.
**** RON LEVER XXN MR JAUNCEY
PN2928
You said to him, "I can come back to work, but only if I do not go back to the division I was working in"?---Certainly something along those lines were discussed.
PN2929
And later in the conversation I think that you then discussed things about the possibility of a Bragg Institute job?---I remember we may have discussed something like that but I can't remember if it was in that conversation or another one.
PN2930
And you said, "I want a new role. I am willing to retrain"?---I certainly said I'm willing to retrain and I did say that if it involved a new role, I would have to actually be retrained so that sounds reasonable.
PN2931
And you said, "I would have thought that my medical certificates from my GP are enough to show that I can come back to work in a different role"?---No. I didn't say that.
PN2932
And Dr Hall said, "No, Ron. We need you to come in and see me"?---No.
PN2933
Nothing like that?---Well, we were discussing about coming in to see them, but not the way you phrased it.
PN2934
Well, he said that he wanted you to come in and see him?---I was aware of that, yes.
PN2935
And he would have said, "Then we can assess your current health and get started on a proper return to work plan for you"?---No, I don't think that was the way it was said at all.
PN2936
THE SENIOR DEPUTY PRESIDENT: Is it what he said or the way he said that you reject? Is it Mr Jauncey's intonation or the actual words that he's presenting to you which were the words of the doctor?---The words, I think. It's a bit hard to remember three years, but my recollection was that we talked about Dr Pead's medical certificates and what was required there before things could be commenced again.
**** RON LEVER XXN MR JAUNCEY
PN2937
MR JAUNCEY: Now, Mr Lever, you were during this conversation telling Dr Hall now that you could come back and work so long as you were moved to a different division?---I've said yes to that, yes.
PN2938
And presumably you say you could have done 20, 30 hours of work per week, something like that?---I don't know if we actually discussed hours.
PN2939
I'm not suggesting that you discussed it, Mr Lever. I'm just saying at that time you would have thought that you could do 20, 30 hours of work a week?---At that time I couldn't say how many hours. I was prepared to attempt - to try a return to work and would have worked out reasonable hours and see how I went and assessed it as we went.
PN2940
Well, did you believe that you could do more than eight hours' work per week?
---In July 2005, I would presume so, yes. But, three years ago.
PN2941
So you now say that in fact the medical certificate which you submitted to Centrelink on around late June 2005 or early July 2005, saying that you could not do any other work for more than eight hours per week is wrong?---Well, the certificate speaks for itself, what it's indicating on there.
PN2942
And I'm saying you were now saying that what it says is wrong?---Well, possibly it was. Depends on the certificate that had been written after that date. I mean, Dr Hall and I were talking about having another medical certificate written saying what I could and couldn't do.
PN2943
You never did, did you?---Sorry?
PN2944
Around July or August 2005 you never did have another certificate written, did you?---Yes, I did.
PN2945
In July 2005?---You said July or August.
**** RON LEVER XXN MR JAUNCEY
PN2946
July or August. Well, we'll come to that, but certainly in July '05 there was no other certificate written?---As I said this was a discussion - what was the date of that certificate?
PN2947
30 June 2005?---My conversation with Dr Hall was after that.
PN2948
Yes?---Yes, so.
PN2949
But you're saying that this was no longer correct as at the middle of - mid to late July?---No, I'm not saying that at all. I'm saying that Dr Hall and I discussed getting another medical certificate from Dr Pead stating what I could do and we have that here.
PN2950
And you could do more than eight hours per week?---I don't think Dr Pead put the hours down and I don't think Dr Hall and I even discussed hours because we didn't even have a position.
PN2951
But this certificate that Dr Pead had written, "Can the patient currently do their usual work/study or any other work for eight hours or more per week", and he crossed box "No"?---But you're trying to correlate that to a conversation I had with Dr Hall two or three weeks later.
PN2952
Well, this certificate is dated to apply up until the end of August 2005?---That's true, but doctors can re-issue certificates if things change.
PN2953
So you're saying that things had changed after the issue of this certificate?
---Well, through my discussion with Dr Hall, we discussed change.
PN2954
And you believed that after the date at which this certificate was issued some time over early to mid July you reviewed your position and you thought that actually you were better than this certificate might have indicated?---No. That's not the way I would phrase it at all.
PN2955
Mr Lever, I'm not at this stage asserting that this certificate was false at the time that it was written?---Or set in stone.
PN2956
But that all I'm saying is that you now say that by mid to late July the situation may have actually been different than was anticipated by this certificate?---I can't answer the question yes or no and I can't give a full answer. I would like to address that maybe in - is it re-examination?
**** RON LEVER XXN MR JAUNCEY
PN2957
Well, you are saying now that in late July, despite what the certificate said, you probably were able to do more work than eight hours per week?---The discussion with Dr Hall and he requested whether I could get another certificate written from Dr Pead and we discussed the circumstances of what would be required to get that done. Now, I can give a full explanation, if you like.
PN2958
Mr Lever, if you would just answer the question?---Yes, this is - - -
PN2959
You're now saying that as at mid to late July you were able to do more than eight hours' work per week and that you believed that you were able to more than eight hours per week at that time?---In the circumstances that we discussed with Dr Hall, that I discussed with Dr Hall, yes.
PN2960
THE SENIOR DEPUTY PRESIDENT: Mr Jauncey, can we just pause for a moment. I'm very familiar with the allegations that were made by the employer and they're set out in the notice of appearance and that we've discussed in the case, but his incapacity for work during this period seems to me to be a matter that's already been dealt with via Comcare and then in the appeal at the AAT - - -
PN2961
MR JAUNCEY: Your Honour - - -
PN2962
THE SENIOR DEPUTY PRESIDENT: Are you disputing - is this a matter that goes to credit as to - - -
PN2963
MR JAUNCEY: No, your Honour. It is simply this. I indeed will be saying that many of these matters have been dealt with in the AAT and that your Honour should have regard to what the AAT found in terms of fitness for work and everything else. I anticipate, however - I withdraw that. My understanding is that Mr Lever in his return to work dispute is asserting now that he should in fact receive back pay from 21 February 2005 up to the date of termination despite what was found in the AAT and despite the resolution of earlier disputes and in those circumstances I feel obliged to cover the material given the nature of the claim which I understand is being made.
PN2964
If Mr Lever is not claiming back pay prior to a certain time, then I'm more than happy to move on much faster.
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Lever, just go over there.
<THE WITNESS WITHDREW [10.50AM]
PN2966
THE SENIOR DEPUTY PRESIDENT: It seems to me that these matters are of very little relevance to me in the proceedings, except if your claim is going to be, you're going to press your claim as Mr Jauncey says for back pay over this period. I need for you to tell me what it is you're going to claim and whether or not I can shorten these proceedings by stopping Mr Jauncey looking behind each of these matters and defending what he anticipates is your claim. So what is your position?
PN2967
MR LEVER: My position is I will be making that claim, or attempting to make that claim back - - -
PN2968
THE SENIOR DEPUTY PRESIDENT: Pursuant to which of the proceedings?
PN2969
MR LEVER: I'm sorry?
PN2970
THE SENIOR DEPUTY PRESIDENT: Pursuant to which of the proceedings currently before me?
PN2971
MR LEVER: There's one dispute in there in relation to failure to return to work. I can't remember the dispute number.
PN2972
THE SENIOR DEPUTY PRESIDENT: Right.
PN2973
MR LEVER: And it was on the basis that I say ANTSO had an obligation to follow the Comcare guidelines as part of their procedure and I intend to show that they never followed that procedure from day one.
PN2974
THE SENIOR DEPUTY PRESIDENT: All right, thank you. Mr Jauncey, I think it would be useful to me because the issues merge in the files, if you flag to me which file I'm hearing at any one particular time since I'm really hearing four.
PN2975
MR JAUNCEY: Yes. Your Honour, all the material in relation to the certificates and the capacity for work relate almost entirely to matter C2007/3513 which is the return to work dispute. Now, your Honour, I should just say, just so that everybody is clear, that our position is that the dispute as brought is not capable of going back that far and your Honour ought not go back that far given the other decisions that have been made, even if your Honour were able to do so. We have put or explained in general terms our position to Mr Lever, that we don't believe that he is entitled under this dispute to make a claim for back pay going back to 21 February but if your Honour were to be against me on the primary position then we would need to have the evidence to deal with it.
PN2976
THE SENIOR DEPUTY PRESIDENT: Yes, okay.
PN2977
MR JAUNCEY: Your Honour, I should just say for completeness that there will be a couple of things in here in terms of the return to work that we say do go to attitude and credit and they may be relevant to all matters, but the actual details of the return to work really only focus on this one matter.
PN2978
THE SENIOR DEPUTY PRESIDENT: I should say that at the conclusion of this matter I'm going to ask that parties address each of the matters, each of the notifications separately.
PN2979
MR JAUNCEY: Yes, your Honour. We have intended to do so.
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Lever, could you return?
<RON LEVER, ON FORMER OATH [10.54AM]
<CROSS-EXAMINATION BY MR JAUNCEY, CONTINUING
PN2981
MR JAUNCEY: Mr Lever, you knew by mid to late July 2005 that Dr Hall was telling you that he was concerned about your medical certificates and wanted you to be independently assessed?---He was certainly concerned about the certificates and why they were framed the way they were and I explained that to him.
PN2982
Well, he was concerned and he wanted you to be independently assessed?---I didn't have a problem with being assessed, as long as it was under the SRC Act.
PN2983
He wanted you to be independently assessed?---Yes.
PN2984
Now, Mr Lever, by that stage you were in fact not prepared to attend a medical assessment organised by ANTSO unless they accepted that your state of health was such that a transfer to another position was necessary?---That was a very long question. Can you break that up a little bit, please?
PN2985
Well, by that stage you were not prepared to attend a medical assessment organised by ANTSO unless they accepted that your medical condition was such that the transfer to another division was necessary?---Well, the medical assessment would have assisted in determining that, so I can't answer that question as two questions in one.
PN2986
THE SENIOR DEPUTY PRESIDENT: I don't think there was. Repeat it again, Mr Jauncey?
PN2987
MR JAUNCEY: You were not prepared to attend a medical assessment organised by ANTSO unless they accepted that your medical condition was such that the transfer to another division was necessary?---I still think that's two questions, but I say yes.
PN2988
So the answer is that you weren't prepared to attend an assessment organised by them unless they accepted that you had to be moved?---The unless is the part that I'm worried about. Obviously it was a concern about being returned to the hostile environment, yes, that was definitely a concern.
**** RON LEVER XXN MR JAUNCEY
PN2989
Yes, and you weren't prepared to go to an assessment unless they'd accepted that you'd have to be transferred?---At the time I was not prepared to be put back into my hostile environment. That was the stumbling point.
PN2990
THE SENIOR DEPUTY PRESIDENT: Mr Lever, would you - - -
PN2991
MR JAUNCEY: You weren't prepared to go to an assessment unless they accepted that?---Okay.
PN2992
THE SENIOR DEPUTY PRESIDENT: Mr Jauncey and Mr Lever. Mr Lever, you will have to stop trying to manage the question. The question was unless they agreed to transfer you and you want to say that the transfer constituted a move into a less hostile environment. That's how you characterise a transfer and what its purpose is and why you needed it for your health. That's your case. But when he says unless they agreed to a transfer, you don't get on every occasion he puts that to you to characterise it in your terms, to verbal the question, if you want. Just answer the question. If you have a view that the transfer would have been in your view a movement into a less hostile environment, you get an opportunity to put that, but this is time consuming and unnecessary?---Okay, sorry, your Honour.
PN2993
The point has not escaped me. It doesn't need to be repeated?---I'm not doing it for that reason, your Honour. I just feel uncomfortable saying something that doesn't sound right to me.
PN2994
Well, a transfer is a transfer, whether it's a less hostile environment or not and that is your purpose, not to the point?---Sorry, your Honour.
PN2995
That's all right. I just want to make my position clear. I don't want this to be a 20 day hearing.
PN2996
MR JAUNCEY: You weren't prepared to go to a medical assessment unless they accepted that you had to be transferred?---Yes.
PN2997
And on 19 August 2005 - - - ?---Excuse me, Mr Jauncey, I just want to make a note of the question and my answer so I can respond properly. Yes, sorry.
PN2998
Yes, and on 19 August 2005, and it's annexure John O'Shea22 and I think I've given you a copy of Mr O'Shea's affidavit - - - ?---Can I just turn to 22, please?
**** RON LEVER XXN MR JAUNCEY
PN2999
Yes, certainly?---Sorry, 15's fallen out.
PN3000
And he asked you to attend an appointment with Dr Lewin on 28 September 2005?---Yes.
PN3001
And he told you that he had requested that Dr Lewin liaise with your treating practitioner, Dr Pead?---He did say that, yes, in here he did, yes. Just a moment, I need to make - - -
PN3002
And he told you that it was near the train station at Bondi Junction so that you knew that you could get a train up from Wollongong?---Yes.
PN3003
And you determined not to go, or you decided not to go to this appointment, didn't you?---That's right.
PN3004
And on 30 August 2005?---Sorry, I'm writing and listening at the same time. I probably shouldn't be doing that.
PN3005
I will let you write, Mr Lever?---Finished. Wearing two hats is difficult.
PN3006
I will show you your letter to Dr Hall dated 30 August. In this letter at the last dot point at the bottom you were asking him to state a professional opinion that there was no need for you to see any other medical practitioner?---Yes.
PN3007
And - - - ?---Just a moment, I need to make a note too, on this one.
PN3008
And - - - ?---I'm not finished yet, sorry. Yes.
PN3009
And on 5 September, a couple of days after this letter from you, Ms Risby telephoned you and spoke to you?---I don't have anything with me to say whether she did or didn't, sorry.
PN3010
No reason to disbelieve that it was around that date?---Well, all you're saying so far is it's a phone call. I don't know what it's about. So if you could tell me what it's about I might be able to tell you.
PN3011
Well, she said to you, "Ron, I've booked you in for an appointment with Dr Hall for this Friday, 9 September"?---I remember there was an attempt to book an appointment. I can't remember if it was that date.
**** RON LEVER XXN MR JAUNCEY
PN3012
No reason to disbelieve that it was that date?---Actually I have a couple of reasons why I should disbelieve that date, but - - -
PN3013
THE SENIOR DEPUTY PRESIDENT: What are they?---I've been reviewing Ms Risby's clinical notes and I don't think they're accurate, or totally accurate.
PN3014
MR JAUNCEY: Well, amongst the notes which have been produced to you or to the Commission there is a note by Ms Risby dated 5.9.05 and it says, "Contact by phone with Ron. Offered appointment with Dr Hall for Friday 9.9.05"?---I accept that that's what she's written. I'm not - - -
PN3015
And you're saying that that's now wrong?---I'm not saying that at all. I'm saying I'm not sure if that - I know we were talking about an appointment. I don't remember a date.
PN3016
So you're not ruling it out?---No.
PN3017
And she says that you told her, "If I am going to travel to see Dr Hall I want all my travel expenses to be covered for his appointment"?---Not in those terms.
PN3018
Well, you told her that you wanted to have travel expenses paid in some sort of terms, didn't you?---Yes, I wanted my costs covered, correct.
PN3019
And she told you that, either then or shortly afterwards, they weren't going to be able to cover your travel expenses?---I think she went away and made a call and rang me back from memory, but yes, that's - the end result was, no.
PN3020
THE SENIOR DEPUTY PRESIDENT: The end result was what, I'm sorry?
---They weren't going to pay any costs for me to go up and see Dr Hall.
PN3021
MR JAUNCEY: Yes, and Ms Risby would have told you that even if you are successful in obtaining a job elsewhere at ANTSO you'll still need to be assessed for fitness for duty before you can start work?---Assessed for medical certificate, yes.
PN3022
Yes?---That's part of the process.
PN3023
And - - - ?---Clearance, not certificate.
**** RON LEVER XXN MR JAUNCEY
PN3024
You - - - ?---Sorry, can I just clarify that? It was not medical certificate, it was medical clearance from Dr Hall. I don't know what the difference is, I've never got one.
PN3025
You didn't attend the appointment with Dr Hall on 9 September 2005, did you?
---No.
PN3026
And I think we've already established that you didn't attend the assessment with Dr Lewin on 28 September '05?---That's correct.
PN3027
Mr Lever, getting back to work was worth far more to you than some petrol money, wasn't it?---Yes, ultimately it would have been.
PN3028
You say, is it - I withdraw that. Is it your evidence that the principle of getting your petrol money was so important to you that you were prepared to put yourself - sorry, that you were not prepared to put yourself out to attend a medical examination unless they agreed to pay that money?---Sorry, how do I answer that? I'm going to say yes, I wouldn't put myself out.
PN3029
The principle of the travel money was so important that you just wouldn't go without?---Are you asking me to justify why I said no?
PN3030
Mr Lever, in fact the reason why you weren't going was because they hadn't agreed that you needed to be transferred?---I thought that was what the appointment was, but anyway.
PN3031
Well, you weren't going because they hadn't agreed that you needed to be transferred?---Well, I wasn't transferred, that's for sure.
PN3032
Well, you weren't going because they hadn't agreed that you needed to be - - - ?
---No, that's not right.
PN3033
Well, Mr Lever, at around about the end of October 2005 you spoke with David Denton and told him that you were prepared to do work in Haifa?---I did speak to David Denton and we did talk about the job in Haifa, yes, a temporary job.
**** RON LEVER XXN MR JAUNCEY
PN3034
And you told him that you were prepared to consider doing work in Haifa?
---Correct.
PN3035
And around about 7 November, shortly after that, you telephoned Ms Risby?
---I've got nothing to clarify that - what was the conversation about?
PN3036
Well, she says that you phoned and said that you'd advised Human Resources that you'd like to return to work?---Sorry?
PN3037
She says that you phoned and said that you had advised Human Resources that you would like to return to work?---I personally advised Human Resources?
PN3038
Well, would you accept that you may have told her that you'd told someone at ANTSO that you wanted to return to work?---My representatives knew I wanted to return to work, yes.
PN3039
And she said to you, "Right. Well, we'll need to get your medically assessed by Dr Hall so you can get clearance to start back at work"?---I can't remember if she said that, but I know that they getting a medical clearance from Dr Hall was a requirement on the return to work.
PN3040
Yes, and she said, "I can make another appointment for you to see Dr Hall on 11 November"?---I think there was an appointment made at that time.
PN3041
And she said, "We will include cab vouchers and we'll send them to you via Express mail"?---Yes, that's correct.
PN3042
And she said, "Dr Hall will consider whether you should visit a psychiatrist for another assessment"?---I don't know. I can't remember that, but it's possible.
PN3043
And they did send you the cab charges out, didn't they?---They did.
PN3044
And you got them before 11 November, didn't you?---Possibly, yes.
**** RON LEVER XXN MR JAUNCEY
PN3045
But late on the afternoon of 10 November 2005 you phoned Ms Risby and left a voicemail message saying, "This is Ron Lever. I'm calling to advise that I will not be able to make my appointment with Dr Hall which is scheduled for tomorrow morning at 9 am"?---I would have said more in the message than just that.
PN3046
Well, you told her that you weren't going to go to the scheduled appointment?
---That's correct, yes.
PN3047
And she phoned you back and amongst other - well, she phoned you back?---I don't know. What was the conversation about with me?
PN3048
Well, you told her that you were going to go and see a psychiatrist organised by your solicitors?---No, that's not right.
PN3049
Well, you told her that you were going to see another psychiatrist?---No, I didn't.
PN3050
And she said, "It's very important that you attend the medical appointments which were scheduled for you"?---I don't know if she said that or not, no. You just said I was going to see a psychiatrist, and I wasn't going to see a psychiatrist at all.
PN3051
Well, just - she said, "It's very important that you attend the medical appointments which were scheduled for you"?---I can't confirm that.
PN3052
So even although you knew that ANTSO wanted you to see Dr Hall and even although you'd been given the cab charge vouchers this time round, you just decided not to go and you decided that you'd hold off telling them until the afternoon of the day before?---No.
PN3053
Well, they had provided cab charge vouchers, hadn't they?---Yes.
PN3054
And you knew that they wanted you to go and see that appointment?---Yes. Yes, they wanted me to see Dr Hall, yes.
PN3055
And you phoned up the afternoon of the day before and cancelled it?---Yes.
PN3056
Well, the problem wasn't cab charge vouchers this time round, was it?---Certainly not.
PN3057
You just decided that you weren't going to go to it?---No.
**** RON LEVER XXN MR JAUNCEY
PN3058
Now, you finally attended a meeting with Dr Hall and Ms Risby on 30 November 2005?---That's correct.
PN3059
And you had Mr Bloom with you?---I did.
PN3060
And even although Mr Bloom was your witness and was able to take notes you decided to secretly tape record Ms Risby and Dr Hall, didn't you?---I did.
PN3061
Mr Lever, during the course of that meeting you said words to the general effect of, amongst other things, "I want to return to work on the desktop help desk job firstly provided that a rehabilitation provider is engaged who is independent from ANTSO to work with me on a graduated return to work"?---I don't know.
PN3062
Well, it's quite possible that you would have referred to being prepared to doing a desktop help desk job?---That was the job I was talking about with David Denton. That was a desktop job.
PN3063
And a help desk job?---Well, help desk has a specific connotation. It's not the actual help desk job at all. Help desk is IT division. The Niktek job has a desktop component to it.
PN3064
Mr Lever, it was a lengthy meeting, wasn't it?---Yes.
PN3065
And you would accept that people can walk out of lengthy meetings with slightly different recollections of everything that was said during the meeting?---Certainly, yes. Even with short meetings.
PN3066
And you would accept that people can walk out of such meetings with somewhat different understandings of exactly what might have been agreed?---Yes. I mean, that's possible.
PN3067
That doesn't mean that they're necessarily being deceptive or dishonest?---It depends. If it was a main point of the meeting, I suppose, but I can't remember all the details, that's correct.
**** RON LEVER XXN MR JAUNCEY
PN3068
Now, over late 2005 and early 2006 there were various disputes before her Honour about your return to work and whether you could be required to attend a medical assessment?---Sorry, would you start that question again?
PN3069
Over late 2005 and early 2006 there were various disputes before her Honour about your return to work and whether you could be required to attend a medical assessment?---Yes. I think there was a dispute lodged in late October or November.
PN3070
Yes, and in about April 2006 an agreement was reached to resolve the dispute which had been notified on your behalf about your return to work?---No.
PN3071
Are you going to answer the question?---I thought I said no.
PN3072
THE SENIOR DEPUTY PRESIDENT: I didn't hear you. I'm sorry, I didn't hear you.
PN3073
MR JAUNCEY: No agreement was reached?---Sorry. That wasn't your question. There was an agreement reached, but you did - - -
PN3074
There was an agreement reached?---Yes, but what you stated it was for is different.
PN3075
I was just asking at that point whether there was an agreement reached?---There was an agreement, yes, but - - -
PN3076
Yes, and you went to see Dr Kaplan who was in fact one of the doctors that had been suggested by your lawyers?---Correct.
PN3077
And Dr Kaplan assessed you as fit for duty, even although you disagreed with that assessment?---Yes.
PN3078
And ANTSO then made arrangements for you to return to work on 21 June 2006 initially on a graduated part time basis - - - ?---What was that date again, please, sorry?
PN3079
21 June 2006?---Yes, yes.
**** RON LEVER XXN MR JAUNCEY
PN3080
Initially on a graduated part time basis even although - well, I'll stop there. They made arrangements for you to return to work on 21 June '06 on a graduated part time basis?---Yes.
PN3081
And on 20 June you had a teleconference with Ms Savage and Ms Risby?---I think so, yes. What date was that again, sorry?
PN3082
20th, I think?---I don't recall, yes.
PN3083
And you told them that you couldn't return on 21 June because you'd had a procedure on your eye which required you to wear a patch?---Yes.
PN3084
And you told them that you'd also rolled your ankle and had to have an ultrasound on 22 June?---Well, I had x-rays, ultrasound and CAT scans I think, yes.
PN3085
And then the week after that your hearing was on in the AAT?---Yes.
PN3086
And Ms Risby phoned you again on about 4 July 2006?---Can't recall the date. What was in the conversation?
PN3087
Well, she asked what was happening?---Yes. I'm not sure if I contacted her or she contacted me, but, yes.
PN3088
And you told her that you had had a recurrence of your stress related anxiety and that you had another medical certificate stating that you were unfit to return before the end of July?---Correct.
PN3089
THE SENIOR DEPUTY PRESIDENT: Is that a convenient time?
PN3090
MR JAUNCEY: Yes, your Honour.
PN3091
THE SENIOR DEPUTY PRESIDENT: 20 minutes.
<SHORT ADJOURNMENT [11.22AM]
<RESUMED [11.48AM]
PN3092
MR JAUNCEY: Now, Mr Lever, after speaking with Ms Risby in early July 2006 you then provided a further medical certificate dated 3 July 2006 which certified you as unfit for work from 1 July '06 until 31 July '06 and it is in the bundle at my page 24 of your annexure, RUF4?---Yes.
PN3093
And it says that, "The management plan" - I withdraw that. It says that you had aggravated your earlier psychological injury?---It says "aggravation".
**** RON LEVER XXN MR JAUNCEY
PN3094
Yes?---Yes.
PN3095
And it says that, "The management plan was referral to a psychiatrist"?---Yes.
PN3096
But in fact from this time onwards you did not actually seek any treatment from a psychiatrist, did you?---No.
PN3097
And for the rest of July 2006 you did not make any further direct contact with Ms Risby or Dr Hall or anyone else involved in managing your case on behalf of ANTSO?---On behalf of ANTSO, direct, no.
PN3098
Now, Mr Lever, on or about 8 August 2006 you provided another medical certificate to ANTSO and I think it's at annexure ZR37 to the affidavit of Ms Risby and it is also one of the annexures at RUF4 of your affidavit?---Are you referring to the one that's dated 1 August 2006?
PN3099
Yes?---Yes.
PN3100
And you provided or you arranged to have that provided to ANTSO at some time around that time?---I believe so, yes.
PN3101
And this is the birth certificate since February 2005 where your doctor had actually said that you ticked the box, "Fit for suitable duties" rather than ticking the box, "Unfit to work"?---Without going through each one and checking them, I'd say yes, but I will check - sorry, what period was that?
PN3102
From mid February 2005 up until this date. And this certificate was issued following the completion of the AAT proceedings even although the decision hadn't yet been handed down?---I think the one before that was done after as well.
PN3103
Yes, but this certificate was, wasn't it?---Yes.
PN3104
And in this certificate your doctor said that you were able to return if there was a reintroduction to the workplace on condition that Messrs Davies and Crackenthorp are not involved?---Yes.
PN3105
And it indicated that you could work for four hours per day?---Yes.
**** RON LEVER XXN MR JAUNCEY
PN3106
What had changed in relation to Mr Crackenthorp?---In relation to what?
PN3107
Well, I think that you said on Wednesday that as at late February 2005 you could work with Mr Crackenthorp?---I'm not sure if it was that period or after that period.
PN3108
Well, you'd said that certainly at some point that over the course of early 2005 you could work with Mr Crackenthorp and now you were saying that you couldn't?---I think Mr Crackenthorp left ANTSO in May '05. He wasn't working there.
PN3109
Well, you said on Wednesday that after 21 February 2005 you could work with Mr Crackenthorp, yes?---If it's on transcript and I said yes, I've said yes.
PN3110
Yes. And now in this certificate you're saying that you couldn't work with Mr Crackenthorp any more?---That's correct.
PN3111
What had changed so that all of a sudden Mr Crackenthorp's now on the hit list?
---Mr Crackenthorp betrayed my trust.
PN3112
You knew that he'd betrayed your trust, you said, in February 2005 but you could still work with him, and now you can't?---What I said in 2005 is that I could not work in the IT division. Mr Crackenthorp worked in the IT division in early 2005 and then left ANTSO in May 2005. He has just returned back to work in, I think, May or June 2006 I discovered.
PN3113
And if you could work with him in February 2005 what had changed so that by August 2006 you couldn't any more?---I couldn't have worked with Mr Crackenthorp in 2005 because he was in my hostile environment.
**** RON LEVER XXN MR JAUNCEY
PN3114
Yes, but it wasn't the contact with Mr - I withdraw that. You said on Wednesday, as best my recollection serves me, that it wasn't Mr Crackenthorp that you had a problem in dealing with in late February 2005 and now you're saying it is Mr Crackenthorp that you have a problem in dealing with. What had changed so that all of a sudden you can't deal with him anymore?---My recollection of Wednesday was that there was also reference in regards to restrictions of Mr Davies and Dr Smith and Mr Crackenthorp wasn't on that list, but that was a later time period and Mr Crackenthorp worked in the hostile environment so I couldn't have been put into a position where I was in that hostile environment so I wouldn't have had to work with Mr Crackenthorp.
PN3115
Well, are you now saying that as at late February 2005 you couldn't have had any dealings with Mr Crackenthorp?---Mr Crackenthorp in late 2005 didn't work at ANTSO.
PN3116
Are you now saying that as at late February 2005 you couldn't have any dealings with Mr Crackenthorp?---Yes.
PN3117
And this certificate makes no mention of any restriction on contact with Dr Ian Smith, does it?---No.
PN3118
And it makes no mention of being unable to have contact with internal ANTSO clients, does it?---No.
PN3119
Now, in September 2006 Ms Risby sought to arrange another medical appointment for you, didn't she?---You'll have to remind me.
PN3120
Well, she tried to arrange an appointment with Dr Prior, didn't she?---I believe I remember Prior, yes, I think.
PN3121
And you chose not to go either, did you?---No, I didn't. Yes, I did - I didn't go.
PN3122
You didn't go?---No.
PN3123
Now, Mr Lever I'm just going to show you a letter which you wrote dated 1 August 2007. It is annexure DC3 to the affidavit of Mr Cubbin?---Thank you.
**** RON LEVER XXN MR JAUNCEY
PN3124
And if you can just read the paragraph under heading 2, Medical Certificates Generally?---Yes.
PN3125
And having read that you'd accept that following the end of September 2006 you did not provide any further medical certificates to ANTSO up until some time around June 2007?---Well, that was my guess as to what happened at that particular time.
PN3126
Well, Ms Risby says that she didn't receive any certificates over that time and having read this, you'd have no reason to disbelieve that?---Well, yes, I would because if I didn't provide a certificate at that time, then I would have expected to be contacted by Ms Risby.
PN3127
Well, I put it to you that there wasn't any certificate provided over that time, whether out of mix-up or anything else, but there wasn't any certificate provided over that time?---I said that's my best guess and that's all I can say. I can't be definite about it.
PN3128
Now, on Thursday 12 July - sorry, I withdraw that. In fact in the end there was a certificate written on 15 February 2007 which is in your bundle covering the period from 30 September '06 up until 30 June '07, and that was the certificate which was ultimately provided, I think, by Mr Bloom?---I think after I was informed there wasn't a certificate there, a replacement certificate was produced. Now, what page is that, sorry?
PN3129
Twenty seven?---Of?
PN3130
RUF4?---Of mine, not this one?
PN3131
Yes?---Just a moment, I'll go to that, thank you. Yes.
PN3132
And then on 12 December - sorry, I withdraw that. On 12 July 2007 you went to see Dr Pead?---Yes.
PN3133
And you had another certificate prepared and dated 12 July 2007 with various further restrictions attached to it in a document, this
is also at the end of RUF4?
---Yes, 12 July, that's the one, page 29, yes.
PN3134
And the list of restrictions is something that was typed up by you, wasn't it?
---Yes.
**** RON LEVER XXN MR JAUNCEY
PN3135
And you then say that Dr Pead agreed to that as part of the consultation?---I think this one might even be a modified one, I'm not even sure, because I did show Dr Pead this and we discussed that, yes.
PN3136
Well, in order for it to have been modified you would have had to have gone home and come back, wouldn't you have?---Possibly, yes. Yes, I would have - - -
PN3137
And you did that, did you?---I may have. I don't know.
PN3138
Now, there's nothing in her about Mr Crackenthorp, is there?---No.
PN3139
So all of a sudden you were able to deal with Mr Crackenthorp again?---Yes.
PN3140
And this time Dr Ian Smith had been added to the list?---Correct.
PN3141
What had happened so that all of a sudden you couldn't deal with Dr Smith when before you could?---Federal Court proceedings.
PN3142
So the fact that he gave evidence in the Federal Court proceedings meant that you couldn't have any contact with him?---I explained the contact in the context of my return to work.
PN3143
Well, do you now say that because he hadn't - because he'd given evidence in the Federal Court proceedings, you could no longer have
any contact with him?
---You could say I was very unimpressed with him, yes.
PN3144
Well, do you say that because he gave evidence you could not longer have any contact with him?---In the context of my return to work, yes, but if I bumped into him I would have said - talked to him.
PN3145
But the certificate actually says, "Mr Lever is not have any direct contact with Dr Smith," is that true or not true?---At least in the context of a return to work or medical certificate, you can't separate the two.
PN3146
So you could have some contact with him, just not a lot of contact with him?---As I said, I just didn't want him involved in my return to work. He's not normally involved, but I just wanted to make sure he wasn't.
PN3147
And that was a medical restriction?---Yes. The doctor and I discussed my concern about him interfering with my return to work and me being re-injured, yes.
**** RON LEVER XXN MR JAUNCEY
PN3148
And this time you had to be placed in a position where contact with ANTSO clients was at a minimum?---Initially, yes.
PN3149
That was a newey, wasn't it?---No. It was again a result of a discussion with Dr Pead - - -
PN3150
Well, there was no mention of that in any previous certificates, was there?---That would be the case, yes.
PN3151
Now, Mr Lever, you arranged for Mr Bloom to drop this certificate off at the ANTSO medical centre with a short covering note, didn't you?---No.
PN3152
Well, you arranged for it to be delivered to the ANTSO medical centre, didn't you?---Yes.
PN3153
And so who did it go through?---Dr Hamilton.
PN3154
And it would have probably been delivered some time during the afternoon of the 12th?---Is the 12th a Thursday? I remember a Thursday.
PN3155
Yes, it's a Thursday?---Yes.
PN3156
But sometime during the afternoon?---Yes. I think it was the afternoon, yes.
PN3157
And at that stage you hadn't spoken to Ms Risby or Dr Hall for about a year?
---Probably true.
PN3158
And you'd also been repeatedly informed by ANTSO that prior to returning to work you'd need to be medically assessed?---As part of the return to work process, yes.
PN3159
And you, when you arranged to have this delivered, you hadn't even bothered to phone up and talk to Dr Hall or Ms Risby to make an appointment with either of them, had you?---No, I didn't make an appointment with them.
PN3160
Well, you didn't phone up Dr Hall on either 12 or 13 July to make an appointment with him, did you?---No, I didn't.
**** RON LEVER XXN MR JAUNCEY
PN3161
And you hadn't phoned up prior to that to make an appointment with him on 16 July, had you?---No.
PN3162
Now, so when you turned up on 16 July you had no appointment to see Dr Hall, did you?---No.
PN3163
And that was despite the fact that you knew that they had repeatedly said that you needed to be medically assessed before you resume duties?---The letter speaks for itself. We were waiting for contact from them.
PN3164
THE SENIOR DEPUTY PRESIDENT: The letter speaks for itself and waiting for contact from whom?---From the medical centre. The letter said that if there were any questions in relation to medical certificate that they were either to contact me directly or my representatives, Dr Bloom or Mr Hamilton and no contact was made with anybody. So I turned up on Monday, as I said I would.
PN3165
MR JAUNCEY: And when you turned up on the Monday you had a recording device in your pocket, didn't you?---I had a recording device, yes.
PN3166
Well, where was it concealed?---It was in my pocket.
PN3167
And you turned up at the IMS Group and saw Mr Denton?---I actually went there to see Mr Beckett, but he wasn't there so Mr Denton
was the only one
senior - only senior ANTSO officer there.
PN3168
And you hadn't spoken to Mr Denton or Mr Beckett to say, "Great news, I'll see you on Monday"? You hadn't spoken to Mr Denton or Mr Beckett to tell them that you were going to be arriving on Monday morning?---No. We put our communication through the medical centre because that's the way we thought we should do it.
PN3169
Now, w hen you turned up at the IMS building to see Mr Denton or Mr Beckett, did you have your recording device turned on at that stage?---No.
PN3170
So when you were asked to go up to the medical centre, that's when you decided to just switch it on on the way up?---Yes.
PN3171
And when you went into the medical centre you had Dr Hamilton there with you, didn't you?---Yes.
PN3172
And so she was able to act as your witness and to take notes, wasn't she?---Yes.
PN3173
And during the meeting with Dr Hall and Ms Risby, Dr Hall told you that you needed to see a psychiatrist?---I think the first thing he told me was to go home.
PN3174
Well, he told you that you needed to see a psychiatrist?---Yes, he did.
**** RON LEVER XXN MR JAUNCEY
PN3175
And you told him that he was HR's puppet and that he was a disgrace to the medical profession and said "a bloody disgrace"?---I did say that.
PN3176
Mr Lever, and as a result of that meeting ultimately an appointment was arranged with Dr Mayne?---Yes.
PN3177
Now, Mr Lever, you say now that you have been fit for restricted duties, at least on a part time basis at all times since 21 February 2005?---Yes.
PN3178
And you say that at all times over that period you have been able to work in the order of four hours a day, to three days a week in that range?---I don't think anything was every pinned down but, yes.
PN3179
Well, this certificate dated 12 July says that you were able to work for eight hours a day, three days a week?---Yes, that's - sorry, that's the 12 July?
PN3180
12 July?---Yes.
PN3181
And the certificate dated 15 - I'm sorry. And the certificate dated 1 August 2006 said that you were able to work four hours a day for five days a week?---Sorry, I was reading the certificate. When was that again?
PN3182
1 August 2006 says - - - ?---2006?
PN3183
Yes?---Okay. Going back. I'll accept what you say, yes.
PN3184
Four hours a day for five days a week?---Yes.
PN3185
So that's between 20 and 24 hours a week, obviously?---Yes.
PN3186
And you say that you've been able to work broadly similar numbers of hours at all times since 21 February 2005?---Yes.
PN3187
Mr Lever, I'm going to show you a document. Your Honour, I apologise for the poor quality of the printing of these. These - I will be showing Mr Lever various Centrelink medical certificates. Some were produced by Dr Pead in his bundle, some were by Mr Lever, but the other date. The ones given by Mr Lever were scans and when the scan prints out all of them are very faint. There are no better copies, I'm afraid.
**** RON LEVER XXN MR JAUNCEY
PN3188
Mr Lever, you will see that this is a Centrelink medical certificate signed by Dr Pead?---It is.
PN3189
And you will see down on the left hand corner that under the heading, "Fitness for work/study", it says, "In my opinion this person is/has been unfit for work from 01.12.05 to 01.03.06 inclusive"?---Yes.
PN3190
And then underneath that it says, "Can the patient currently do their usual work/study", and Dr Pead has crossed the box, "No"?---Correct.
PN3191
And underneath that it says, "Can the patient do any other work for eight hours or more per week" and Dr Pead has crossed, "No"?---He has.
PN3192
Do you now say that this certificate is false?---Centrelink were appraised of my situation - - -
PN3193
Do you now say that what is said on this certificate is false?---No. The certificate says what it says.
PN3194
So when the certificate says, "Can the patient do any other work for eight hours or more per week", "No", that's an accurate statement?---Well, as you said at that time, obviously, no. I've either seen it or didn't see it, I don't know, but that's what's there and I can't change what's there.
PN3195
THE SENIOR DEPUTY PRESIDENT: That's not what he's asking you, Mr Lever. He's asking you if what is there is accurate or not. Not whether it's there or not. We can see it's there. He's asking you is it an accurate representation of your incapacity for work at that time?---No, I don't think it is accurate.
PN3196
Thank you.
PN3197
MR JAUNCEY: So the result is you submitted that certificate to Centrelink which you now admit is inaccurate - or which you now say is inaccurate?---It does appear that way, yes.
**** RON LEVER XXN MR JAUNCEY
PN3198
I tender the document, your Honour.
EXHIBIT #ANTSO5 MEDICAL CERTIFICATE FOR PERIOD 01/12/2005 TO 01/03/2006
PN3199
MR JAUNCEY: Mr Lever, I'm going to show you another document?---Thank you.
PN3200
Mr Lever, you recognise this as a Centrelink certificate signed by Dr Pead around about late February or early March 2006?---It's hard to read. I think it's March 2006, he did do three monthly certificates.
PN3201
Yes, so he would have signed this some time around March '06?---Yes.
PN3202
And once again it says, "In my opinion this person is/has been unfit for work from 01.03.06 to 30.06.06 inclusive"?---It does.
PN3203
And where it asks, "Can the patient currently do their usual work/study" he has crossed, "No"?---Yes.
PN3204
And where it says, "Can the patient do any other work for eight hours or more per week," he's again crossed, "No"?---It is.
PN3205
I mean, this is a certificate which you've submitted to Centrelink, isn't it?---It is, it is.
PN3206
And you submitted the certificate in support of a claim for payment of sickness allowance, didn't you?---I did.
PN3207
And are you now saying that the statement, "Can the patient do any other work for eight hours or more per week", "No" is false?---It's not an accurate description.
PN3208
So you submitted what you knew to be an inaccurate certificate to Centrelink?
---Well, you've drawn my attention to it now, yes.
PN3209
You knew it at the time?---I actually didn't pay much attention to what he wrote on there.
PN3210
Mr Lever, you're a careful man - - - ?---I am careful.
**** RON LEVER XXN MR JAUNCEY
PN3211
And very careful with all of your certificates. You knew exactly what he'd written?---What Dr Pead seems to be doing is writing the same things each time.
PN3212
You knew exactly what he'd written?---Well, you've got the certificate there. I gave them the certificate, so yes, I probably did see that. It's going back a way, but anyway.
Your Honour, I tender the document?---ANTSO6.
EXHIBIT #ANTSO6 MEDICAL CERTIFICATE FOR PERIOD 01/03/2006 TO 30/06/2006
PN3214
MR JAUNCEY: Mr Lever, I'm going to show you another document?---Thank you.
PN3215
Mr Lever, you will see that this is another Centrelink certificate prepared by Dr Pead?---Yes.
PN3216
And it relates to the period 02.06.06 to 02.09.06 inclusive?---Correct.
PN3217
And once again Dr Pead has ticked the box, "Can the patient do any other work for eight hours or more per week" and it says, "No", do you see that?---Yes, I do.
PN3218
And once again you provided this certificate to Centrelink, didn't you?---I did.
PN3219
And you now say that this certificate is also false?---Inaccurate.
PN3220
Wrong?---Wrong.
PN3221
And you knew that, or - withdraw that. You knew what it said at the time that you provided it to Centrelink, didn't you?---As I said before, I didn't pay much attention to them, but I probably would have - - -
PN3222
Well, you would accept - - - ?---Can I finish my - - -
PN3223
You would accept that when you provided to Centrelink - - - ?---Can I finish my answer? I say yes.
And if I tender this one, your Honour.
EXHIBIT #ANTSO7 MEDICAL CERTIFICATE FOR PERIOD 02/02/2006 TO 02/09/2006
PN3225
THE SENIOR DEPUTY PRESIDENT: I'm not sure that I can read the date on these.
**** RON LEVER XXN MR JAUNCEY
PN3226
MR JAUNCEY: Your Honour, what I will do is, the ones from the scan sent to me by Mr Lever, this is the best they print. There have been documents produced by Dr Pead which are difficult to read, but it may well be that we should get the originals from Dr Pead.
PN3227
THE SENIOR DEPUTY PRESIDENT: You could perhaps have those assisting you just identify the date of the certificate with the exhibit number, I think that would be sufficient because I can otherwise read it, very faintly, but - - -
PN3228
MR JAUNCEY: I will seek to do so. Even the copies produced by Dr Pead are very faint.
PN3229
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN3230
MR JAUNCEY: Your Honour will be pleased to know that this one is at least slightly more readable.
PN3231
THE SENIOR DEPUTY PRESIDENT: I don't know if it's my age. Are there many of them and is the series of questions the same?
PN3232
MR JAUNCEY: Very similar with slight variations, your Honour.
PN3233
THE SENIOR DEPUTY PRESIDENT: I think that you could hand them in as a bundle and put the question whether or not Mr Lever, for all of those certificates, acknowledges that during that period the assessment of Dr Pead was inaccurate or wrong.
PN3234
MR JAUNCEY: Well, I'm happy to do that, your Honour.
PN3235
THE SENIOR DEPUTY PRESIDENT: Insofar as it relates to the certification of incapacity for all work in any event.
PN3236
MR JAUNCEY: Yes. Your Honour, I'll ask Ms Carey to see if she can bundle some up.
PN3237
THE SENIOR DEPUTY PRESIDENT: All right.
PN3238
MR JAUNCEY: Otherwise if your Honour wishes me to take five minutes, I can try and bundle some up.
PN3239
THE SENIOR DEPUTY PRESIDENT: We can take a short adjournment. Mr Lever, you may leave the witness box and I think that this would shorten things if we do it that way?---Yes, it certainly would.
**** RON LEVER XXN MR JAUNCEY
<SHORT ADJOURNMENT [12.29PM]
<RESUMED [12.44PM]
PN3240
MR JAUNCEY: Mr Lever, perhaps if I provide you with a bundle of documents?---Thank you.
PN3241
And Mr Lever, you will see that these are all Centrelink medical certificates signed by Dr Pead running from the area 01.09.06 to 01.12.06?---Yes.
PN3242
01.12.06 to 01.03.07 and 01.03.07 to 01.06.07, 01.06.07 to 01.09.07 and 01.09.07 to 30.11.07?---Yes.
PN3243
And in every one of these certificates Dr Pead has, in answer to the question, "Can the patient do any other work for eight hours or more per week and Dr Pead has crossed the box, "No"?---Yes.
PN3244
And you provided all of the certificates to Centrelink, did you?---I did, I did.
PN3245
Yes, and you were aware of what the certificate said at the time that they were provided to Centrelink?---Yes.
PN3246
And Mr Lever, you now say that the way that Dr Pead has answered that question is wrong?---Or inaccurate, yes.
PN3247
And Mr Lever, over the period 1 August '06 to 30 September '06?---Sorry, what was that again?
PN3248
In fact, ever since August 2006 Dr Pead has been writing certificates or WorkCover certificates which have certified you as fit for
suitable duties?
---Sorry?
PN3249
Ever since 1 August '06 Dr Pead has been writing certificates which certify you as fit for suitable duties?---Are you talking about the Comcare certificates?
PN3250
Yes?---Yes, sorry. Well, yes.
PN3251
And you would have known that ever since 1 August 2006 the Centrelink certificates were saying something quite different from the WorkCover certificates?---Yes.
**** RON LEVER XXN MR JAUNCEY
PN3252
Mr Lever, I put it to you that both you and Dr Pead have been prepared to fill out certificates saying quite different things to quite
different people in order to get what you - or if you thought that it would assist you to get what you wanted?
---What do you mean by what I wanted?
PN3253
Well, that you were prepared to say things in certificates if you would have thought that it would assist you, get what you wanted from the person to whom you were submitting the certificate?---What do you mean what I wanted? I'm going to say no to that because that's too broad.
PN3254
Well, I put it to you that you have been - that you have knowingly provided certificates saying quite different things to quite different people?---Well, the evidence speaks for itself. They're the documents.
PN3255
You have knowingly provided certificates saying quite different things to quite different people?---Yes.
PN3256
And you were prepared to tell Centrelink one thing in order to try and get what you wanted, which was sickness allowance, and you were prepared to tell ANTSO something completely different in order to get what you wanted, which was a transfer to a different position?---These weren't the only communications with Centrelink.
PN3257
Well, you were prepared to tell Centrelink one thing to get what you wanted and you were prepared to tell ANTSO something quite different, weren't you?---If you looked at the medical certificates, yes, but generally, no.
PN3258
Mr Lever, I put it to you that nothing that Dr Pead writes on the certificate can be trusted?---Well, I've had him for 30 years, he looks after my family. I trust him.
PN3259
Mr Lever, I put it to you that you have been fit to resume full duty at all times since at least late February 2005?---No.
PN3260
Mr Lever, since 21 February 2005 you have not had any psychological or psychiatric treatment, have you?---Yes. Sorry, what did you say?
PN3261
Since 21 February 2005?---Okay then.
PN3262
You have not had any psychological or psychiatric treatment, have you?---Well, I'm on medication. I still am.
PN3263
Well, you haven't seen any psychologist or psychiatrist, have you?---I've seen the psychiatrist, Dr Teo, I've seen the psychiatrist Dr Don Hurst.
PN3264
You have not seen any psychiatrist or psychologist for treatment?---No, that's right, yes.
**** RON LEVER XXN MR JAUNCEY
PN3265
Mr Lever, you were, as part of - I withdraw that. Mr Lever, while the assessment with Dr Mayne was being progressed you were sent security forms to complete on or about 23 August 2007, weren't you?---They were sent after my appointment with Dr Mayne, yes.
PN3266
Well, they were sent out around about 23 August?---My appointment was 20 and 21 August with Dr Mayne. It was after.
PN3267
They were sent out around about 23 August?---They were sent out on 23 August.
PN3268
And you would have got them a few days later?---I think I actually acknowledged I got them on the 27th or 8th.
PN3269
And on 4 September 2005 you wrote a letter back to ANTSO in which you refused to complete the forms?---Yes.
PN3270
And you maintained that refusal at all points thereafter?---Yes.
PN3271
And even after the hearing before her Honour on 19 September 2005 where her Honour made certain comments to you, you continued to refuse to complete the clearances, didn't you?---I did.
PN3272
Yes. You never submitted the clearances, the forms in the end?---I submitted an update.
PN3273
You never completed and returned the forms sent to you by ANTSO?---No. No, I didn't.
PN3274
Now, Mr Lever, over the course of September and October 2007 you were sent various pieces of correspondence regarding allegations that you may have breached your duty?---Yes.
PN3275
And from reading that correspondence you understood the allegations that ANTSO were putting against you even if you did not agree with them?---Yes.
**** RON LEVER XXN MR JAUNCEY
PN3276
Now, Mr Lever, in I think it was 28 November 2005 there was a hearing before her Honour in relation to a dispute notified by ANTSO
in relation to
whether - well, in relation to the ability - the interpretation of certain provisions of the enterprise agreement dealing with when
ANTSO could require a fitness for duty assessment?---In the context of a return to work program.
PN3277
But there was a hearing on that day and that's what it was about?---I can't remember the date. I think you asked me that question before. It was put down as October/November.
PN3278
And that dispute was between ANTSO and the CPSU?---That's correct.
PN3279
And on that day the CPSU was represented by Mr Adrian Barwick?---Correct.
PN3280
And you were not summonsed as a witness on that day and you didn't have to give evidence, did you?---No.
PN3281
And in - there was the hearing in April 2006 again in front of her Honour which went into conciliation and again the CPSU was represented by Mr Barwick, wasn't it?---I think so, yes. Yes, it was at that time.
PN3282
And you weren't summonsed as a witness or called to give evidence on that day?
---No, I wasn't.
PN3283
Nothing further, your Honour. Your Honour, your Honour had asked me to just identify the disputes to which particular issues related
and I should just say that those last few questions just related to the dispute about the accrual of entitlements. That dispute
is really just a legal question. I don't think the
evidentiary material behind it is in dispute.
PN3284
THE SENIOR DEPUTY PRESIDENT: Thank you?---Can I ask one question in relation to this? Was this tendered into evidence?
MR JAUNCEY: Your Honour, if I have not, I do.
EXHIBIT #ANTSO8 BUNDLE OF MEDICAL CERTIFICATE DOCUMENTS
PN3286
THE WITNESS: Does that include 4, 5 and 6 or are we going to keep them separate?
PN3287
THE SENIOR DEPUTY PRESIDENT: No, they're already tendered.
**** RON LEVER XXN MR JAUNCEY
PN3288
MR JAUNCEY: And as I said, your Honour, I will seek to go and get better copies of those certificates to the extent that I can and I will provide them.
THE SENIOR DEPUTY PRESIDENT: Thank you.
<THE WITNESS WITHDREW [12.57PM]
PN3290
THE SENIOR DEPUTY PRESIDENT: How's your witness going, Mr Lever?
PN3291
MR LEVER: Struggling. He's struggling. He's written a draft statement in reply and he's edited it this morning on the way up here, so I thought if we could probably get his original statement into evidence and I might have to read out his statement in reply.
PN3292
THE SENIOR DEPUTY PRESIDENT: Okay. What do you think about all that, Mr Jauncey? I think it would be better to have Mr Lever's evidence completed today.
PN3293
MR JAUNCEY: It would be a lovely thing to have it completed. I do not know how long Mr Bloom will take. On his existing statement I expect my cross-examination to be quite short, but it really depends on how much more - - -
PN3294
THE SENIOR DEPUTY PRESIDENT: Well, wouldn't it be better to finish Mr Lever today, which is my preference, and just do Mr Bloom at commencement on the 15th?
PN3295
MR JAUNCEY: Look, certainly I was remaining hopeful that we might get through Mr Lever - - -
PN3296
THE SENIOR DEPUTY PRESIDENT: Well, if we leave him out there working, he may finish, but I thought if we go straight ahead with Mr ANTSO[sic] rather than cobbling together a solution - - -
PN3297
MR JAUNCEY: I'm more than happy with that approach, your Honour.
PN3298
THE SENIOR DEPUTY PRESIDENT: 2 o'clock. Will you be making your notes?
PN3299
MR LEVER: I've got three days of this. Can I comment on this re-examination because I've obviously never done it before.
PN3300
THE SENIOR DEPUTY PRESIDENT: Well, re-examination would usually be you sitting there and your counsel asking you some questions.
PN3301
MR LEVER: Yes.
PN3302
THE SENIOR DEPUTY PRESIDENT: But what I'm going to allow you to do is to resume your seat at the bar table and address me on those matters, give your reply, evidentiary reply, not to make submissions, and say what your evidence is in reply to those matters raised by Mr Jauncey. It's an awkward process, but there it is, and in that regard you'll be limited to those matters about which Mr Jauncey asked you and what you say arises from those questions and that would sometimes involve you saying, "You asked me about X and I replied, 'Yes', because that was the short answer but another relevant fact is." So that's how it has to proceed. If you would like - you might take, I think, at least an hour to do that, maybe a bit longer.
PN3303
MR LEVER: I think probably even a little longer than that.
PN3304
THE SENIOR DEPUTY PRESIDENT: So I'm happy for you to take, you know, if you wanted to take an extra 15 minutes over lunch to prepare your notes, maybe we could start at 2.15, that would help.
PN3305
MR LEVER: That would help, your Honour.
PN3306
THE SENIOR DEPUTY PRESIDENT: But I want to get you finished this afternoon.
PN3307
MR LEVER: I'd like to finish it too, but see how I go. I'm going to read through the notes over the break and I've tried to - - -
PN3308
THE SENIOR DEPUTY PRESIDENT: Yes, but this isn't - - -
PN3309
MR LEVER: I've tried to group things together so I don't repeat myself.
PN3310
THE SENIOR DEPUTY PRESIDENT: Yes, but this isn't start again, that's the important thing. This is response.
PN3311
MR LEVER: Yes, I know. I'm not going to go all over the material. I'm trying to group things.
PN3312
THE SENIOR DEPUTY PRESIDENT: All right. 2.15 then.
<LUNCHEON ADJOURNMENT [1.00PM]
<RESUMED [2.27PM]
PN3313
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Lever?
PN3314
MR LEVER: I'm not sure if I'm going to have a difficulty here or not, but Mr Jauncey asked me questions in relation to Mr Crackenthorp and Mr Crackenthorp - well, they were questions, I believe in relation to credit but Mr Crackenthorp has not been called as a witness and I don't know how I would go about explaining Mr Crackenthorp's involvement - - -
PN3315
THE SENIOR DEPUTY PRESIDENT: Not been called by a witness by whom?
PN3316
MR LEVER: By ANTSO.
PN3317
THE SENIOR DEPUTY PRESIDENT: Well, you can give your view of what it is that you want to say about it and they can do what they like about that. It's their problem.
PN3318
MR LEVER: Thank you, your Honour. I won't do that just yet, but I just wanted to ask that question. Another question I have is that there are some transcripts and affidavits from the Federal Court proceedings. Do I have to formally tender those to be considered as part of the evidence even though I won't be - - -
PN3319
THE SENIOR DEPUTY PRESIDENT: If you want them to be before me you have to tender them. They're not before me.
PN3320
MR LEVER: Okay, and the opportunity to do that would be when I'm cross-examining ANTSO witnesses?
PN3321
THE SENIOR DEPUTY PRESIDENT: If they're matters that you want to put to them that conflict with what is their evidence here, if you want to put matters and cross-examine them about any inconsistencies in that material, then you have to put them to them in cross-examination. I don't know what matters you're talking about, but that's generally the proposition. Mr Jauncey was putting to you matters that were inconsistent about what you say. You can do the same, but I'm not making any general ruling about that material till I know what it is you're doing, but that's generally how it works. Mr Jauncey, I see you hovering. Is there something - - -
PN3322
MR JAUNCEY: Your Honour, I was just going to say if it's of any assistance obviously the transcripts of the Federal Court, your Honour asked me when I tendered one, whether it really needed to be tendered. Court decisions and court transcripts I think are a matter of public record. I don't think that they necessarily need to be tendered. I would be content that if either party felt the need to just hand up the documents that that would be satisfactory, but of course, if questions were to be asked about them, then of course that should be put.
PN3323
THE SENIOR DEPUTY PRESIDENT: Yes, but I'm not taking the general tender of all of the transcript. Even though you've handed up transcript before me, the only part of it of which I'm taking any notice that the small extract to which you took to and should Mr Lever tender the transcript of the Federal Court the only part I'm going to take any note of is the part to which he draws my attention. The same with the exhibits. I'm not having a vast amount of material before me which for some reason I'm supposed to read. I'm only going to pay attention to those matters to which my attention is drawn.
PN3324
MR JAUNCEY: I'm not suggesting that your Honour should do otherwise.
PN3325
MR LEVER: And nor am I, your Honour.
PN3326
THE SENIOR DEPUTY PRESIDENT: Excellent then.
PN3327
MR LEVER: Just, I don't know the process, so I have to ask the question. I've got no one else to ask. I'll start with a small point. Mr Jauncey asked me about treatment. I did seek psychological treatment initially, but I had to stop that treatment simply because I couldn't afford it. As I said in cross-examination, I'm on medication and I'm still on medication. Mr Jauncey talked at length about Centrelink. Mr Jauncey summoned Centrelink and was informed that my records were by legislation private or words to that effect.
PN3328
I've reviewed the transcript of 10 March. The Centrelink medical certificates I have provided Mr Jauncey came from Dr Pead's produced documents of 20 February 2008. I have forwarded them and he has used them in ANTSO's evidence. Coming back to this point. In relation to the transcript of 10 March in paragraph number 320 your Honour said, "It's not easy to find these files kept by other members. Everyone's idiosyntric[sic] about how they file things."
PN3329
THE SENIOR DEPUTY PRESIDENT: I'm sorry, I don't know what you're talking about.
PN3330
MR LEVER: I'm just reading out that paragraph in full, your Honour. It's just a comment but it's in relation to my cross-examination as to me misinforming or misleading the Commission on medical certificates from Centrelink and I'm just starting from the beginning because it needs to be all read in context, unfortunately. "Mr Jauncey, without hearing from Mr Lever" - and this is still your Honour speaking - "I am not prepared to order any production material in relation to the payments by Centrelink. I don't think it's appropriate. There is a process by which Mr Lever has an obligation to report to Centrelink. He's obliged to follow that process. Whether he does or not is a matter between him and the Commonwealth. It is in fact an offence not to. But that's a matter for him."
PN3331
Your Honour then asked me a question, "In relation to the medical reports though, I will hear from Mr Lever as to why he should
not produce them," and I
think - me, said, "Yes." "I'm sorry, Mr Lever." And now my name appears, "In relation to the medical
reports, your Honour, Mr Jauncey has already acknowledged that he has summoned Dr Pead's medical file and that medical file contained
copies of all the medical certificates that Dr Peat" - that's what it says here - "has written out on behalf of Centrelink."
Your Honour asked me the question, "Do you know that?" and I said, "Yes, your Honour, I do." "It contains
all of them?" And my response was, "Yes, your Honour." "Do you have any copies in addition?" And I said,
"No, not with me, your Honour, but the
file" - and then, "No, but generally do you have any?" and my response was, "No."
PN3332
But during that exchange the context of the conversation changed from medical reports to medical certificates and what I was saying is all the medical certificates I had were from Dr Pead's file and Mr Jauncey had access to the very same file. Centrelink do have medical reports on me because I was separately assessed by them and I had never got them. I've never received those, so I couldn't produce them, I never had them.
PN3333
THE SENIOR DEPUTY PRESIDENT: I don't - - -
PN3334
MR LEVER: That's what I was referring to when I said, "No, I don't have them." Mr Jauncey was attacking me on a credit point that I had told the Commission I didn't have them when in fact I did. I had the certificates, but I didn't have the reports and I'm just clarifying that point, your Honour.
PN3335
THE SENIOR DEPUTY PRESIDENT: All right, yes, thank you.
PN3336
MR LEVER: I certainly didn't mean to mislead, if I did mislead the Commission, your Honour. I'll talk further on that point in regards to Centrelink independently assessing me. On each occasion when I brought one of these certificates in to Centrelink, from memory I think nearly on all occasions I was interviewed and the story of me and ANTSO was explained. So they knew at the time they received these what my particular circumstances were and their records should show notes taken by them indicating that I informed them of such.
PN3337
In relation to the medical reports and the assessment, Centrelink's assessment by their psychologist of me, it was talked about in full and they were fully aware that my circumstances in regards to my return to work was that I was possible to return to work outside my hostile environment, but not into my hostile environment and Centrelink have accepted that and they continued to pay me right up to my termination with sickness benefits.
PN3338
I have told Centrelink in relation to my difficulties with ANTSO, including my hostile environment and my attempts to be returned
outside that environment. I have not contacted Centrelink re my medical reports and I don't know if I can do this or not, but I
would like to seek leave to make a request of Centrelink to provide me with copies of those medical reports that they had me assessed
under.
If Centrelink will release the reports I will then tender them in evidence. Your Honour, if I'm able to obtain those reports I would
prefer that you review them first and decide what Mr Jauncey is allowed to have. I have not seen them and I am not sure how much
detail is contained within them. I consider the information to be private. In addition to my Centrelink medical reports that I
have not seen, there were forms that were sent to ANSTO from Centrelink that ANSTO were required to complete prior to a certain deadline.
I know of these forms as I was informed about them by Centrelink. On several occasions I was told by Centrelink that they were
going to cut off my benefits because ANSTO had not completed the forms in the required timeframe.
PN3339
I have never seen those completed forms by ANSTO. I will also ask if those completed forms can also be provided.
PN3340
THE SENIOR DEPUTY PRESIDENT: I don't know why you think any of this will assist me in determining this matter.
PN3341
MR LEVER: It just purely goes on credit, your Honour. The inference was made that Dr Pead and myself deliberately defrauded Centrelink in regards to payments and he used the medical certificates from Centrelink and compared them with the ones from Comcare in relation to the ones I was given to ANSTO and then make inferences from that and I’m just trying to address those so that there's no confusion as to the fact that I had informed Centrelink of everything and the difficulties that I was having and they continued to make those payments with that information.
PN3342
The next one I want to take you to is a fairly small one. In relation to Ms Esme Nasser's psychological report, Mr Jauncey read a sentence from that report and from that he concluded that Dr Doherty victimised and harassed me and my evidence was that I never considered Dr Doherty to have victimised or harassed me at any time. Unfortunately there is an error in this report and at the top of page 3 and I would like to read this into transcript, it's the second line on page 3:
PN3343
During the time Mr Lever was seen for therapy and later reassessment he described a history of victimisation, harassment and bullying in his workplace beginning from 3 November 2004.
PN3344
Dr Doherty was not at ANSTO in November 2004 -
PN3345
He states that he has not returned to his workplace since 27 December 2004 at which time he took holiday leave for one month and then sick leave for a short while.
PN3346
That error in this report has cost me dearly and I believe and Mr Jauncey may correct me, but he has summonsed document from Esme Nessar in these proceedings which are in the registry and if she has complied with those orders, which I believe she would have, she would have also supplied her clinical notes. Now, I had some clinical notes at home but they were in worse condition as that as far as readability is concerned and in that report I can describe it and I would like to read it and put it on - - -
PN3347
THE SENIOR DEPUTY PRESIDENT: Have you looked at the clinical notes in the registry?
PN3348
MR LEVER: No, I haven't been there yet to do that.
PN3349
THE SENIOR DEPUTY PRESIDENT: When were they produced?
PN3350
MR JAUNCEY: Months ago, your Honour, is my understanding.
PN3351
MR LEVER: I can't remember when it was produced.
PN3352
THE SENIOR DEPUTY PRESIDENT: Well, if you want to refer to the clinical notes you need to look at them. I'm not going to hear you on what might be in them.
PN3353
MR LEVER: I haven't got anything to read from, your Honour, but my copy was so poor and as I said, it was poorer than that because it was a scanned copy, so the intention was to go to the registry and get them and then I'll read from them and then tender those clinical notes and it's quite clear to see how that error was transcribed from the clinical notes into this report.
PN3354
THE SENIOR DEPUTY PRESIDENT: All right, thank you.
PN3355
MR LEVER: I would like to tender the report if I could, your Honour. I know Mr Jauncey has one. I only have the one copy.
PN3356
THE SENIOR DEPUTY PRESIDENT: All right.
PN3357
MR LEVER: And possibly with regards to the clinical notes if I could have a five or 10 minute break, not necessarily just now, but to go down - - -
PN3358
THE SENIOR DEPUTY PRESIDENT: No, Mr Lever, not mid address. If you want to reopen for a short period to say something about those clinical notes I'll give you leave to do that but I think you should just keep going.
PN3359
MR LEVER: Thank you. That's fine, thank you, your Honour. Another major point in cross-examination was deleted areas and I've asked - - -
PN3360
THE SENIOR DEPUTY PRESIDENT: Deleted areas?
PN3361
MR LEVER: Yes, the deleted user areas when they use the - - -
PN3362
THE SENIOR DEPUTY PRESIDENT: Yes, sorry, yes.
PN3363
MR LEVER: A picture is better than 1000 words so I'd like to try and draw up a picture to explain what happened.
PN3364
THE SENIOR DEPUTY PRESIDENT: Certainly. I think, Mr Lever, you'll need to put the microphone near you.
PN3365
MR LEVER: Sorry. Okay, I'm going to draw this box and this represents
the - - -
PN3366
THE SENIOR DEPUTY PRESIDENT: Why don't you just draw it all up and then use the microphone to speak to it.
PN3367
MR LEVER: Okay. I may need to draw a bit more than that. That's ..... the top box is a project area. Beneath the project area we have directories and this directory is the user directory. Now, in normal systems if a user deletes a file it's gone so it actually gets removed from the directory. Some systems are able recover by doing a restore on the computer. That's what people do on their PC, they can restore a file. Now, the design of this particularly directory structure - I'll just need to grab some notes - was designed this way to allow users to protect their documents without anyone being able to alter them. So any documents that are found here and these are user IDs, user directories, no other person could alter those documents unless the project manager has specifically requested it and it was an option but by default it wasn't, could alter any of the documents in there.
PN3368
But that presented us with a problem and users wanted this. They want to protect their documentation and what they had contributed to a project or whatever else as their material. So they were quite keen on having that and this was a design structure that I came up with and presented to all of the divisions across site and received feedback, so there were some modifications made from those consultations. They actually controlled what they published so what they would do is they would work in here and if they wanted a document to be published they would take it out of here and they would put it there or in another project somewhere else similar that they had access to but it would only become published once they did that.
PN3369
The downside was when they left. Because the administrators couldn't alter the documents there means they couldn't also delete the documents that were there. So what happened to be done then is we had to come up with a scheme to allow that to delete anything that's in there once the user had left the project or the organisation. This is where the deleted area came from so what would happen is this user would leave and that directory would be taken away and now becomes this directory over here. But now the difference is the project leaders could access anything under here, delete, manage, move, whatever they like to do. Now, over here we have a back up unit and this unit was backing up this directory structure daily, weekly and monthly.
PN3370
Users came and went from projects all the time so there was always a significant amount of data contained in these directories over the whole site and every day it would be backed up and if it stayed there for a week, each week it would be backed up and if it stayed there for a month, each month it would be backed up. If you know anything about data storage and everything else they state that statistically that only 20 per cent of the data that is generated in these servers is reusable data. The rest of it is working data used maybe to create and that reviews is only about 20 per cent. The problem being with providing this additional functionality of being able to put this directory over here for a period of time to allow the project administrators to decide what to do with that material put another load on the server in regards to space and also cost to back up on a daily, weekly and a monthly basis.
PN3371
So periodically, particularly when we're running short of space, one or two things would happen, one of two. One, it would be just deleted, or the other is, particularly if you were in a hurry, you would pick that up and dump it over there, I'll come back to that later when I get some time to do some work but at the moment I'm doing other things. That's a process I used a lot and I had three computers, I had other servers with more space, if that was coming close I think the limit at the time was 80 per cent. Anything over 80 per cent I had to do something or the administrators has to do something. But we were sent emails to do something from the system because it was close to filling up.
PN3372
So now the deleted area can be there or here and that whole thing would moved over in one go because that's the quickest way to get rid of it, stop the back ups and create some space very quickly. The anomalies document is a document that was in a deleted area. In the Federal Court proceedings I gave evidence as to how long I believed - sorry, I gave evidence as to how I came across the document. At the time I also stated it was a deleted directory. ANSTO have confirmed this. At the time, from my memory, I believed it had been deleted in the deleted area for around 12 to 18 months. ANSTO have independently confirmed this.
PN3373
The fact that the document was in a deleted area and the time it had been there was critical to my decision to print the document. Sorry.
PN3374
THE SENIOR DEPUTY PRESIDENT: Did you get the previous part? Just difficult. Yes. It's better now?
PN3375
MR LEVER: Sorry, I didn't think about it.
PN3376
THE SENIOR DEPUTY PRESIDENT: That's all right.
PN3377
MR LEVER: If the document had not been in a deleted area then I would not have printed it or retained a copy. Mr Jauncey tried to provide an analogy of a filing cabinet in human resources area. This analogy is not consistent as to how I recall the events. The document was taken, and using his analogy, the document was taken from the filing cabinet by someone in human resources and thrown into a waste paper bin. The bin was then collected by the cleaning staff and thrown into the dumpster. I found the document into the dumpster before it was taken away for disposal. As I said, this system is unique. I don't think you will find any other organisation that has something like that and it provided another level of functionality for the users of ANSTO.
PN3378
The critical thing about it was that that area had to be managed and the system administrators were given that role if the project
managers didn't do what they had to do. I believe the deleted directory where that document was located by me in my search was here
and not there. The reason I believe that is because
Mr Jauncey provided me with a printout which he asked Mr Glacjar which I don't seem to have here at the moment, and it showed the
results of his search and it included documents from a person by the name of Linda Haussman. I know Linda Haussman and I did not
and I do not remember that document there. So if it was in the HR area that document would have come up as well and I just don't
recall that document very well.
PN3379
THE SENIOR DEPUTY PRESIDENT: I'm sorry, I don't understand that submission. You'll have to explain that again.
PN3380
MR LEVER: Okay. ANSTO have agreed, and I'll just see if I can find it because I think it was in his affidavit, his supplementary affidavit, is that right?
PN3381
THE SENIOR DEPUTY PRESIDENT: Who, Mr Glacjar's?
PN3382
MR LEVER: Yes, Mr Glacjar's supplementary affidavit. Here it is. The directory structure that ANSTO agreed, Mr Jauncey can disagree, he can stand up and make his own submissions, but my understanding of what we agreed with is "\deleted vvl\admin\anomalies.xls".
PN3383
THE SENIOR DEPUTY PRESIDENT: Dot what?
PN3384
MR LEVER: "xls".
PN3385
THE SENIOR DEPUTY PRESIDENT: Yes.
PN3386
MR LEVER: I'm just looking at Mr Jauncey if agrees that we are in agreement with that part of the directory path.
PN3387
MR JAUNCEY: No.
PN3388
THE SENIOR DEPUTY PRESIDENT: No. Mr Jauncey doesn't have to agree with you, Mr Lever.
PN3389
MR LEVER: I know. The document says it.
PN3390
THE SENIOR DEPUTY PRESIDENT: Do you want to show that to
Mr Jauncey?
PN3391
MR LEVER: Yes.
PN3392
MR JAUNCEY: I accept that deleted vvl admin with a document of
anomalies - - -
PN3393
MR LEVER: You agree with that part?
PN3394
MR JAUNCEY: I agree that the last words on the document identified in
Mr Glacjar's affidavit are "deleted\vvl\admin" and that the document itself was called anomalies, misspelt with an "i"
and I agree that it was an xls file.
PN3395
MR LEVER: So the disagreement is the path of the directory path going this way. Now, in Mr Glacjar's example he stated that he restored this from a tape backup and it includes the full path filed somewhere up here, the directory structure down to HR. I say that document was here somewhere, or there, or there, I don't know where. Now, Mr Glacjar said if you did a search directly for this document from the HR directory it would take two minutes. He also said, and correct me if I'm wrong, that if you did a search of the whole file server on this it would take over two hours. My evidence was that I started the search and I went and made a cup of coffee. I don't know who I spoke to on the way up, I don't know who spoke to on the way when I was there and I don't know if I spoke to anyone on the way back, but there was a big period between two minutes and over 2 hours. I've never had a cup of coffee for two hours and if I started a search and didn't get what I want I wouldn't be walking away after two minutes.
PN3396
So my search took somewhere in between here. I would submit that it does somewhere in there and these other storage areas where I dragged files to were accessible from my network or my PC. So I believe it was in one of those. I don't know which one it was because I don't remember my search string. I accepted what Mr Jauncey said as to what it possibly would have been and I just don't remember. It was something that I did in around or about 2004 to mid 2004, I'm not sure exactly when. As I said, ANSTO have independently verified for themselves not only the path that I told them it was but also the age of that deleted area.
PN3397
My recollection I believe is correct as I've accepted there is a possibly it could have been there. But to do that it would have had to come up as one of those time factors and it just didn't. Some of what Mr Jauncey has covered in regards to cross-examination I also intend to try and dealt with it by cross-examination of other ANSTO witnesses and by making formal submissions. Peer review was also mentioned. Mr Jauncey made reference to a process known as a peer review. When I was having difficulties with my classification dispute Mr Davies suggest that I request a peer review. At that point in time Mr Davies and I worked fairly closely together in the JCC. PMC wasn't formed at that time, but as a union delegate and Mr Davies is an industrial relations adviser, we worked reasonably close at that point in time.
PN3398
On his advice I requested a peer review in January 2003. In April, three months, four months later which I believe was at the beginning
of January, Mr Davies informed me a peer review would only look at my current assessment period.
Mr Davies was fully aware that my dispute with ANSTO with regards to my classification went back to 2000/2001 and to be only be able
to look at the period of the current annual assessment year would not address the issues that I had.
PN3399
THE SENIOR DEPUTY PRESIDENT: And what time was this?
PN3400
MR LEVER: This was April 2003.
PN3401
THE SENIOR DEPUTY PRESIDENT: Yes, it would have given you from then on, wouldn't it? If you had been successfully reviewed by your peers and achieved your reclassification, although it wouldn't have given you a backdating of your grievance, it would have given you from 2003 onwards.
PN3402
MR LEVER: It would but my annual assessments for 2000/2001 and 2001/2002 still had not been finalised so they were still current and active.
PN3403
THE SENIOR DEPUTY PRESIDENT: Yes, I know but it would have addressed your status from 2003 on. It couldn't have done anything about the past two but it could have done something about those, could it not?
PN3404
MR LEVER: Possibly, yes.
PN3405
THE SENIOR DEPUTY PRESIDENT: Well, if the outcome had been good it could have.
PN3406
MR LEVER: Yes.
PN3407
THE SENIOR DEPUTY PRESIDENT: It definitely could have if the outcome had been good. If the outcome had not been good, well, it wouldn't have fixed it but that was possible.
PN3408
MR LEVER: But the peer review process and yes, I accept what you say, your Honour, because that's correct, but the peer review process wasn't a competency based process that Ms Linda Haussman was using to assess staff and staff were being assessed on. It was a different process and in fact I have email communications from Dr Doherty who was a division director and I suggested to him that if we didn't come back to a mediation session to resolve the dispute then I would be forced to seek a peer review. He asked me what a peer review was. He didn't know what it was. I was only acting on the advice of Mr Davies. I didn't know exactly what it was either.
PN3409
I then spoke to a Dr Lawrie Aldridge and Ms Karen Wolf, both at the time were acting as representatives for me in my dispute. Karen Wolf I believe sent an email to Mr Davies and said that we didn't want to do the peer review any more but we would be putting in its place a grievance which was an internal dispute resolution process involving a reference panel. So that grievance was put in. The peer review was cancelled and Mr Davies then drafted a letter on behalf of the then executive director, Helen Garnett and denied access to the reference panel on the basis of time.
Now, the cancellation of the peer review and the putting in of a grievance was within days. I have some emails from Dr Doherty and myself. I'd like to tender those, your Honour.
EXHIBIT #LEVER13 REPORT OF MS NASSER
PN3411
MR LEVER: Sorry, I forgot to do that.
PN3412
THE SENIOR DEPUTY PRESIDENT: That's all right, I've done it. Do you want them as a bundle?
PN3413
MR LEVER: Yes, I'm putting them together as one. I won't have to read them. Well, I'd like you obviously to read them but do we need to read them into transcript?
PN3414
THE SENIOR DEPUTY PRESIDENT: No.
PN3415
MR LEVER: I might also say that at this time Dr Doherty had invited me to his home for a barbecue with a number of other IT staff and I believe we are still friends today.
PN3416
MR JAUNCEY: Your Honour, I'm asking is relevance, this is November 2002.
PN3417
THE SENIOR DEPUTY PRESIDENT: To what does this go, Mr Lever?
PN3418
MR LEVER: During cross-examination Mr Jauncey put it to me that I could not have any contact with Dr Doherty and I said, well, that's not true. He then produced the error from Ms Nasser's medical report to - - -
PN3419
THE SENIOR DEPUTY PRESIDENT: If that is the only purpose for which you're tendering it this hardly seems objectionable, Mr Jauncey. Whether it's useful to me or not is another matter.
PN3420
MR JAUNCEY: The question was about his relationship with Dr Doherty in 2005, not 2002.
PN3421
THE SENIOR DEPUTY PRESIDENT: I know that. I'll allow it.
MR LEVER: I can speak - - -
EXHIBIT #LEVER14 BUNDLE OF EMAILS
PN3423
MR LEVER: Thank you, your Honour. For the record though, Dr Doherty left ANSTO in I believe June 2003. Mr Cullen became the new division director for the IT division in January 2003. So that's only a month or so prior to - - -
PN3424
THE SENIOR DEPUTY PRESIDENT: Yes. It just makes it all less relevant though, doesn't it, Mr Lever?
PN3425
MR LEVER: No, because actually Dr Doherty did come back to ANSTO as a contractor.
PN3426
THE SENIOR DEPUTY PRESIDENT: When?
PN3427
MR LEVER: I'm not sure when but he was in the Federal Court proceedings and Dr Doherty and I were having a conversation while our solicitors and the judge were discussing something, I can't remember what it was - actually, no, it was some of my witnesses were - - -
PN3428
THE SENIOR DEPUTY PRESIDENT: Right. Well, I don't need to know all that
PN3429
MR LEVER: Yes.
PN3430
THE SENIOR DEPUTY PRESIDENT: I'll allow it. 14, thank you. Yes.
PN3431
MR LEVER: The other thing that was mentioned was a reference panel. My representatives for the reference panel later in 2003 were
Mr Paul Stuthers and
Ms Karen Wolf and Dr Hammerton was on the panel as the union representative and a Mr Sam Marika was management's representative on
that reference panel. I prepared a folder of similar size to one of those folders I believe for that reference panel and it was
prepared in conjunction with Ms Wolf and Paul Stuthers. I had to provide with Mr Davies and Mr Sam Marika with a copy of those documents
for my reference panel. I don't have that folder today but I say that folder did not contain the anomalies document.
PN3432
THE SENIOR DEPUTY PRESIDENT: Why do you say that?
PN3433
MR LEVER: Because I didn't have it then.
PN3434
THE SENIOR DEPUTY PRESIDENT: All right. No-one is saying you had it then though, are they?
PN3435
MR LEVER: Yes, your Honour. There was a contention that I did.
PN3436
MR JAUNCEY: The suggestion was put to the witness that he had it then, he denied it and I proceeded by saying, well, you asked for it beforehand and they told you that you couldn't have it.
PN3437
THE SENIOR DEPUTY PRESIDENT: All right then. Yes, I understand. I just wanted to make sure what point you were making.
PN3438
MR LEVER: Yes. And that's a point I raise now that Mr Jauncey has raised that. The anomalies document is not the document that Mr Davies said I could not have in the JCC I think of March 2003, or in our exchange of email communications leading up to my reference panel. Mr Jauncey knows and it's - - -
PN3439
MR JAUNCEY: Well, I object to that, attributing what I know and don't know.
PN3440
THE SENIOR DEPUTY PRESIDENT: Well, we don't know what it is he thinks you know yet.
PN3441
MR LEVER: ANSTO tendered a document in the Federal Court proceedings. It's exhibit O, which is the document that Mr Davies had said that we weren't allowed to see and which we did not see and the first time I saw that document was in the Federal Court proceedings and it's a totally different document to that document. I'd like to tender it but I have to pull it out of there.
PN3442
THE SENIOR DEPUTY PRESIDENT: Out of where?
PN3443
MR LEVER: It's one of my folders here. I just want to show you it's chalk and cheese as far as the - - -
PN3444
THE SENIOR DEPUTY PRESIDENT: All right. Well, show it to me. Pull it out.
PN3445
MR LEVER: It's always the way, it's the last folder.
PN3446
THE SENIOR DEPUTY PRESIDENT: Yes.
PN3447
MR JAUNCEY: May I see the document?
PN3448
MR LEVER: Sorry. There's more to it, your Honour, sorry. In this part here, your Honour, it's marked at the top Confidential.
THE SENIOR DEPUTY PRESIDENT: Thank you. So the document you say was attached to the Federal Court proceeding is this document you handed me first, exhibit O from the affidavit of Ron Lever tendered in the hearing on 14 December 2006.
EXHIBIT #LEVER14 EXHIBT O FROM THE AFFIDAVIT OF MR LEVER TENDERED IN FEDERAL COURT PROCEEDINGS ON 14/12/2006
PN3450
THE SENIOR DEPUTY PRESIDENT: And the document that you've just handed me now, how will I identify that?
PN3451
MR LEVER: Sorry, that's part of O. I've never seen that document before besides the Federal Court proceedings but I believe those two are together.
PN3452
THE SENIOR DEPUTY PRESIDENT: They're one and the same thing?
PN3453
MR LEVER: Yes.
THE SENIOR DEPUTY PRESIDENT: All right.
EXHIBIT #LEVER15 FOUR PAGE DOCUMENT FROM FEDERAL COURT PROCEEDINGS
PN3455
THE SENIOR DEPUTY PRESIDENT: Yes.
PN3456
MR LEVER: Fitness for work, I'll just touch on it briefly. My position has always been that I was fit to return on a graduated basis outside my hostile environment. Approaches were made to ANSTO facilitate that. ANSTO didn't use the process they were supposed to and essentially ignored it. Once my doctor realised that they were not going to assist me in returning to work he started to certify me unfit for work on the basis that he felt I was unfit to go back to my hostile environment and he wanted to protect me from further injury. In the discussion with Dr Hall on 15 July from memory, Mr Jauncey took me through a number of medical certificates.
PN3457
During my discussion with Dr Hall he questioned Dr Pead's medical certificates and asked me why they were specifying totally unfit and I explained it to him and I even gave him a letter telling him what it was. I also told him that I would speak to Dr Pead and get a medical certificate to say I was fit to work outside my hostile environment and Dr Pead agreed to write that certificate out and that appears in annexure 4, page 19. I don't think I need to tender it again, do I, your Honour? But it says:
PN3458
Anxiety, stress, depression, psychotherapy with clinical psychologists. Resumption of work possibility if he were moved into an alternate position at work.
PN3459
And that's all my doctor was trying to say and that's all we said to Centrelink as well. Sorry, I'm just reading through this, your Honour. I might be able to deal with these in other ways. I recorded two meetings.
PN3460
MR JAUNCEY: Three.
PN3461
MR LEVER: I was thinking of the ones that you were cross-examining on in regards to Mr Hall and Ms Risby. Three in total. I did that to protect myself. That's the only reason I did it. It also gets us accurate transcript of what actually happens in those meetings. I'd like to tender those recordings.
PN3462
MR JAUNCEY: Well, I object. It should have been done in-chief and I say that the material was obtained unlawfully.
PN3463
THE SENIOR DEPUTY PRESIDENT: I'm sorry, I thought you were getting something else to address me. You say it's a breach of .....
PN3464
MR JAUNCEY: Yes.
PN3465
THE SENIOR DEPUTY PRESIDENT: Are the accounts of the conversations different?
PN3466
MR JAUNCEY: Well, Mr Lever has not given anywhere in his affidavit an extensive account of the conversation on 30 July - sorry,
30 November 2005.
Mr Lever's evidence about that conversation is relatively scanty for an hour and a half conversation and if he wants to lead a huge
amount of additional evidence about that conversation then it should have been done in-chief. In relation to the 16 July 07 conversation,
yes, there are some differences in the accounts although there are also substantial similarities.
PN3467
THE SENIOR DEPUTY PRESIDENT: Mr Lever, why should I let the tapes in? They've not been presented before now despite opportunities to do so. They have been obtained in breach of the Act and a full transcript of what you say taking place even if you're relying on the tapes has not been presented to date. You say you've already said what's on them to the extent that you wanted to and now you want to tender the lot. Why is that so? I sound like a Cadbury's ad, didn't I, why is that so. I just have to take that phrase out of my speech I think.
PN3468
MR LEVER: I think I would suggest that.
PN3469
THE SENIOR DEPUTY PRESIDENT: You understand the point? You haven't put the full transcript to date.
PN3470
MR LEVER: Yes.
PN3471
THE SENIOR DEPUTY PRESIDENT: And now you want to put the full tape which contains a full transcript or a full, what you say is a full account of the conversation. Well, you're in reply. Your case in-chief is over.
PN3472
MR LEVER: I'm not a lawyer, your Honour.
PN3473
THE SENIOR DEPUTY PRESIDENT: I know all that but you know you've been putting the things you've had to rely on and you didn't put it.
PN3474
MR LEVER: No, I know I didn't do that and I was unsure because I'm not sure whether I could or couldn't put it in so I erred on
the side of safety. But
Mr Jauncey has made rather vigorous animated response to the fact that they were recorded and - - -
PN3475
THE SENIOR DEPUTY PRESIDENT: Well, it says that it was some improper conduct, it's that improper conduct that the employer relies to some extent on to terminate your employment. That's what he says.
PN3476
MR LEVER: Well, yes, that may be true but in the Federal Court proceedings there were no adverse findings in regards to me making that recording and my advice by the solicitor and I subsequently yesterday spoke to another solicitor and it's not a formal written advice, saying that in my particular circumstances and we have a block of 11 people with their affidavits saying one thing and I'm saying something different, the recordings will give your Honour an opportunity to hear it warts and all what prompted me to lose my temper, what prompted me to say what I said, how the meeting finished, what was supposed to happen and you will see that what was agreed to happen and what did happen are different things and the accounts given - - -
PN3477
THE SENIOR DEPUTY PRESIDENT: Mr Lever, I think at this stage of the proceedings I'm not prepared to let you tender the tapes or take them into account, unless of course you want to provide them to Mr Jauncey for him to listen to and then he might in fact agree that that's case, then I'll reconsider the matter.
PN3478
MR LEVER: That's fine, your Honour. The other question I was going to ask is whether I could use them in cross-examination of the other witnesses. I didn't know if I could put them in then or not.
PN3479
THE SENIOR DEPUTY PRESIDENT: No. In either case the ground of objection would be the same.
PN3480
MR LEVER: Okay.
PN3481
THE SENIOR DEPUTY PRESIDENT: They're illegally obtained and I don't think it's appropriate in these circumstances for you to rely on them without having set out the transcript of their contents beforehand or advise Mr Jauncey that you intended to do so. However, I don't think there would be anything preventing to giving him the opportunity to hear them. In the meantime there might be no objection but that's what I think for the moment.
PN3482
MR LEVER: Fine, your Honour, thank you.
PN3483
THE SENIOR DEPUTY PRESIDENT: How are you going for time?
PN3484
MR LEVER: Well, I'd like to get Ms Nasser's clinical notes and have them tendered.
PN3485
THE SENIOR DEPUTY PRESIDENT: And what's Mr Bloom doing all this time?
PN3486
MR LEVER: When we spoke at lunch we had completed Dr Hall's and
Ms Risby's.
PN3487
THE SENIOR DEPUTY PRESIDENT: All right. Well, we're not going to get to him. I quite frankly wouldn't mind a break so I think I'll let you go down to the registry and have a look at the clinical notes and bring them up.
PN3488
MR LEVER: Thank you, your Honour.
PN3489
THE SENIOR DEPUTY PRESIDENT: We'll go off the record for that purpose. Thank you.
<SHORT ADJOURNMENT [3.28PM]
<RESUMED [3.53PM]
PN3490
THE SENIOR DEPUTY PRESIDENT: Reporter, that question was that "perform work was employers other ANTSO as second jobs". He said he didn't now and he'd find out.
PN3491
MR JAUNCEY: Yes, your Honour. I'm instructed that ANTSO's code of conduct and ethics includes a provision outside employment while working at ANTSO and that provision provides that the Executive Director's approval is needed before employment can be accepted outside ANTSO. This work should not conflict or interfere with the work performed for ANTSO. ANTSO's money, property and facilities are to be used with appropriate care and for official purposes only.
PN3492
THE SENIOR DEPUTY PRESIDENT: Thank you. Is that consistent with your understanding, Mr Lever?
PN3493
MR LEVER: Yes, we discussed it in the break, yes.
PN3494
THE SENIOR DEPUTY PRESIDENT: Good, thank you.
PN3495
MR LEVER: I just couldn't remember who the authority had come from, the Division Director or the CEO.
PN3496
THE SENIOR DEPUTY PRESIDENT: Could you provide me with a copy of that at some other stage, Mr Jauncey?
PN3497
MR JAUNCEY: Yes, your Honour.
PN3498
THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Lever?
PN3499
MR LEVER: I'd just like to read on to transcript part of Ms Esme's clinical notes and explain where the error arose. On page 1, and I would like to hand this up as a bundle, because I give context to the report and everything else. I'll start off at the middle, "Two years ago in July 2002 was supposed to get promoted but didn't. After six months of negotiations had been working at the higher level, worked very hard. They pulled the pin out at the last minute. Everyone in his" - I think it's "GP", I don't know what that means, "were working" - "group" - "at the higher level, promoted nobody. Therefore of dispute they cut out" - "because of the dispute they cut out my overtime. The appeal, the new Division Director, Mr Cullen, and industrial relations adviser, Mr Davies, and Operations Manager, Russell Tuckwell are harassing him." And what I think she's done, your Honour, is just taken that pre-history and added it to there and Mr Cullen did not start at ANTSO until January 2003 and Mr Tuckwell did not start at ANTSO around October 2003.
PN3500
THE SENIOR DEPUTY PRESIDENT: Okay. Do you want to tender that document?
PN3501
MR LEVER: Yes, thank you.
MR JAUNCEY: No objection.
EXHIBIT #LEVER16 BUNDLE OF DOCUMENTS SUPPLIED BY ESME NASSER
PN3503
MR LEVER: One other point that the recordings, before I move on to my next point, Mr Jauncey pointed out that Dr Hamilton was present at two of the meetings and Mr Bloom was present at another. It's one thing to have employees take notes. It's another to ask them to give evidence in proceedings against their employer. Again, your Honour, I'm just going through and see if I can deal with in other ways. Is it at all possible, your Honour, that we have an opportunity to review and possibly put a supplementary to this beginning on 15 September, just - - -
PN3504
THE SENIOR DEPUTY PRESIDENT: Supplementary to what?
PN3505
MR LEVER: Well, I think I've covered everything and I just want to make 100 per cent sure that I can cover - - -
PN3506
THE SENIOR DEPUTY PRESIDENT: If there is some small matter that you haven't addressed, you can have an opportunity to do that on the 15th.
PN3507
MR LEVER: Thank you, your Honour.
PN3508
THE SENIOR DEPUTY PRESIDENT: There's Mr Bloom to go as well.
PN3509
MR LEVER: Sorry, your Honour?
PN3510
THE SENIOR DEPUTY PRESIDENT: There's Mr Bloom to go as well.
PN3511
MR LEVER: Yes, your Honour, sorry.
PN3512
THE SENIOR DEPUTY PRESIDENT: So - - -
PN3513
MR LEVER: Yes, I think re-examination - - -
PN3514
THE SENIOR DEPUTY PRESIDENT: You're saying you're finished?
PN3515
MR LEVER: Yes, your Honour.
PN3516
THE SENIOR DEPUTY PRESIDENT: All right.
PN3517
MR LEVER: Subject to a double check.
PN3518
THE SENIOR DEPUTY PRESIDENT: Well, Mr Lever, there's other things that you need to, I think I should point out to you, you need to explain what you've been doing since termination of employment. There are matters about your employment otherwise, if you've had any other work, if you've done anything in mitigation, et cetera. They're all matters that are set out in - I was going to say 170CG(3), but they're not, of course.
PN3519
MR LEVER: It's changed, has it?
PN3520
THE SENIOR DEPUTY PRESIDENT: It has. Matters that I am obliged to have regard to and such as mitigation.
PN3521
MR LEVER: Yes, your Honour.
PN3522
THE SENIOR DEPUTY PRESIDENT: So I don't know what work you've been doing, if you've been doing any, what steps you might have taken to mitigate your loss, but I think I'll let you address those on the next occasion.
PN3523
MR LEVER: Thank you, your Honour. There's just a couple of other little things that I need to be able to do before I cross-examination ANTSO's witnesses and I appreciate this has been raised previously, but unfortunately I feel the need to raise the issue once again. I don't think you made a ruling on this, your Honour, or not or whether it's just sitting there waiting for - anyway, I don't know if there's been a decision made. ANTSO have provided specific details to what ANTSO's respondents and have produced and when. ANTSO produced documents and there are documents in that production that I want to use and I don't know whose it is to cross-examine on and it's going to create a difficulty for me in having to ask each of the witnesses is this their document.
PN3524
THE SENIOR DEPUTY PRESIDENT: Well, you'll just have to do that, I think, at this stage. It will make it a bit longer, but I don't see any alternative.
PN3525
MR LEVER: Yes, and ANTSO is not prepared to identify the sources of those documents.
PN3526
THE SENIOR DEPUTY PRESIDENT: Well, Mr Jauncey doesn't actually know until you've produced the document and show it to the witness which one it is or whose it is, and quite frankly, given the number of documents in this matter, it's probably better if the witness identifies them themselves for accuracy, I think.
PN3527
MR LEVER: And the other question is, I know I've got leave to add a little bit more if I need to on the 15th and Mr Bloom will be here on the 15th. ANTSO's witnesses, is there any way we can work out - - -
PN3528
THE SENIOR DEPUTY PRESIDENT: In which order they'll be called?
PN3529
MR LEVER: Yes, your Honour.
PN3530
THE SENIOR DEPUTY PRESIDENT: I'm sure that Mr Jauncey will have some idea of the order. I think he indicated that before to me.
PN3531
MR JAUNCEY: Your Honour, it may change slightly mainly just due to scheduling with other commitments. I will seek to provide a general list to Mr Lever of the order in which I propose to call those witnesses, but there may need to be some changes to just take account of people's other commitments. I've made it clear before that Mr Davies is going on leave at the end of the first week and I shall call him early on to make sure that there are - we don't find him half finished.
PN3532
MR LEVER: I can't ask any more, your Honour.
PN3533
THE SENIOR DEPUTY PRESIDENT: No, that's fine. I think it might be a good idea if Mr Davies is quite early in the list.
PN3534
MR JAUNCEY: That was certainly the intention other than just scheduling reasons, but certainly it will be early on.
PN3535
THE SENIOR DEPUTY PRESIDENT: Thank you, all right. I wouldn't expect, Mr Lever, that the things you might want to say in addition to the matters you've dealt with will take longer than a half an hour, do you think?
PN3536
MR LEVER: I'm hopeful I've caught the major things that I wanted to capture, and the rest I'll be able to do other ways.
PN3537
THE SENIOR DEPUTY PRESIDENT: Thank you. The Commission is adjourned.
<ADJOURNED UNTIL MONDAY 15 SEPTEMBER 2008 [4.03PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
RON LEVER, ON FORMER OATH PN2865
CROSS-EXAMINATION BY MR JAUNCEY, CONTINUING PN2865
EXHIBIT #ANTSO4 MEDICAL CERTIFICATE PN2903
THE WITNESS WITHDREW PN2965
RON LEVER, ON FORMER OATH PN2980
CROSS-EXAMINATION BY MR JAUNCEY, CONTINUING PN2980
EXHIBIT #ANTSO5 MEDICAL CERTIFICATE FOR PERIOD 01/12/2005 TO 01/03/2006 PN3198
EXHIBIT #ANTSO6 MEDICAL CERTIFICATE FOR PERIOD 01/03/2006 TO 30/06/2006 PN3213
EXHIBIT #ANTSO7 MEDICAL CERTIFICATE FOR PERIOD 02/02/2006 TO 02/09/2006 PN3224
EXHIBIT #ANTSO8 BUNDLE OF MEDICAL CERTIFICATE DOCUMENTS PN3285
THE WITNESS WITHDREW PN3289
EXHIBIT #LEVER13 REPORT OF MS NASSER PN3410
EXHIBIT #LEVER14 BUNDLE OF EMAILS PN3422
EXHIBIT #LEVER14 EXHIBT O FROM THE AFFIDAVIT OF MR LEVER TENDERED IN FEDERAL COURT PROCEEDINGS ON 14/12/2006 PN3449
EXHIBIT #LEVER15 FOUR PAGE DOCUMENT FROM FEDERAL COURT PROCEEDINGS PN3454
EXHIBIT #LEVER16 BUNDLE OF DOCUMENTS SUPPLIED BY ESME NASSER PN3502
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