Industrial Relations Commission of New South Wales CITATION : Gilbett v Mercy Care (Newcastle) Limited T/as Newcastle Mater Misericordiae Hospital [2004] NSWIRComm 308 PARTIES : Dr Heather Gilbett Mercy Care (Newcastle) Limited T/as Newcastle Mater Misericordiae Hospital FILE NUMBER: IRC 775 of 2004 CORAM: Harrison DP CATCHWORDS : Application re unfair dismissal pursuant to s84 of the Act - Long term absence - sick leave and long service leave - applicant contends long service leave approved - question of fact - avoidance of communication with employer - failure to respond to return to work program - breakdown in employment relationship. Held - Termination of employment not harsh, unreasonable or unjust. LEGISLATION CITED : Industrial Relations Act 1996 Long Service Leave Act 1955 HEARING DATES: 08/30/2004; 09/02/2004 DATE OF JUDGMENT: 10/21/2004 APPLICANT Counsel Mr G Giagios Solicitor Mr D Williams LEGAL REPRESENTATIVES: Whitelaw McDonald Solicitors RESPONDENT Solicitor Mr J Kennedy Sparke Helmore Solicitors JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Thursday, 21 October 2004 MATTER NO IRC 775 OF 2004 DR HEATHER GILBETT AND MERCY CARE (NEWCASTLE) LIMITED T/AS NEWCASTLE MATER MISERICORDIAE HOSPITAL Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2004] NSWIRComm 308 1 Doctor Heather Gilbett has worked in the Emergency ward of Newcastle Mater Misericordiae Hospital ("the Hospital") since 1991. Her employment was terminated with effect from 25 January 2004. At the time of termination of employment, Dr Gilbett was engaged pursuant to the Public Hospital Career Medical Officer's (State) Award 326 IG 811, working 20 hours per week. Dr Gilbett had not attended work since 26 November 2002. 2 Several attempts at conciliation were unsuccessful in resolving the matter and the issues were subsequently subject to arbitration proceedings. Dr Gilbett gave evidence on her own behalf. Mr M Hodgson, Human Resources Manager for the Hospital, was the only other witness. 3 Dr Gilbett deposed that she sought medical attention in December 2002 as a result of stress arising from dealings with direct supervisors, which she characterised as issues in respect to performance appraisal, discriminatory and unfair rostering, bullying and verbal abuse which in her view had been dealt with inappropriately by senior management. 4 The details of these events are set out in correspondence of 25 July 2002 from Dr Chris Geraghty, Director of Emergency Medicine at the Hospital, to Dr Gilbett (exhibit 6) which seeks an explanation in respect to complaints against her by Dr Hui; and a reply from Dr Gilbett on 15 October 2002 (exhibit 7). 5 In December 2002 Dr Gilbett lodged a workers compensation claim with GIO Workers Compensation NSW Limited, the Hospital's workers compensation insurers. The GIO exercised an option to decline provisional liability and so far as the evidence in this matter is concerned, the issue is not pressed. 6 It is Dr Gilbett's evidence that she remained unfit for duty and sought sick leave and annual leave payments which were supported by certificates issued by her treating medical practitioner. 7 Dr Gilbett's sick leave and annual leave entitlements expired in September 2003 and arrangements were made for her to be paid long service leave from 8 September 2003. 8 There is significant dispute between the parties as to the long service leave arrangements. Dr Gilbett contends that eight months long service leave at half pay was agreed and that she was not required to return to duty or have any further contact with the Hospital until April 2004. 9 Dr Gilbett's evidence is that Mr Hodgson contacted her by telephone on or about 11 September 2003. Dr Gilbett deposed that Mr Hodgson used words to the effect of: "Your entitlements have run out. You will no longer be on paid leave from 7 September 2003 unless you submit an application for long service leave. You have an option of taking four months on full pay or eight months on half pay". 10 Dr Gilbett deposed that this was confirmed in correspondence from Mr Hodgson dated 15 September 2003 (Attach. A to exhibit 1). The correspondence informs Dr Gilbett of the full pay and half pay options, detailing the extent of leave available and fortnightly pay amounts in each case. The correspondence does not afford Dr Gilbett the option of four months at full pay or eight months at half pay. The relevant part of the letter of 15 September 2003 states: As advised by telephone on 11 September, you have now exhausted your annual leave entitlements. As a result, you will no longer be on paid leave (from 7 September) unless you submit an application form for Long Service Leave (LSL). I have discussed the appropriateness of LSL with you in the past. However, as you have recently explained, you have some very pressing needs in regard to caring for your sick mother and arranging repairs to your home. I am prepared to support an application for LSL while these issues remain a problem for you. Please complete the enclosed LSL form and return it to me as soon as possible (and, to ensure payment on next pay day, definitely no later than Friday 19 September). It is important that you advise me whether you wish to access your LSL at full pay or half-pay. The Pay Office has advised me that your options in relation to the rate of payment of LSL would be as follows: Half pay (@ 25.79 hrs Full pay (@ 51.57 per fn) hrs per fn) Gross fortnightly pay $1,514.91 $3,029.82 Nett fortnightly pay $1,021.43 $1,902.34 You should also continue to provide medical certificates during your leave so we can monitor your fitness and continue to work towards your timely return to duty. 11 Mr Hodgson's evidence is that there was no discussion between himself and Dr Gilbett concerning eight months long service leave at half pay, deposing that long service leave was approved fortnightly on an ongoing basis to assist Dr Gilbett with income whilst she dealt with the ill health of her mother, repairs to her residence, and prepared herself for return to duty. 12 Exhibits 15, 16, and 17 are leave forms completed by Mr Hodgson in July, August and September 2003 approving leave on a fortnightly basis. 13 Mr Hodgson's evidence is that Dr Gilbett was difficult to communicate with, rarely taking telephone calls and randomly responding to messages left on her answering machine when it was in working order. Mr Hodgson deposed that there were periods of time when Dr Gilbett's answering machine was either full and unable to take further messages or simply not working. 14 Mr Hodgson deposed that Dr Gilbett failed to attend meetings and medical appointments arranged for her, refused to participate in a return to work plan, or provide sufficient details of her grievances to senior management in order that they be appropriately dealt with. 15 Dr Gilbett's evidence is that her mother's health and wellbeing, which were her primary concern and her sole priority during this period, required her to be away from her residence from time to time and that the letter of 15 September 2003 from Mr Hodgson quoted above became mixed up with her mother's papers and accordingly did not come to her attention until some time after she received it. 16 Mr Hodgson deposed that he had received a telephone message from Dr Gilbett on 24 September 2003 advising him that she had been in agony from a dental abscess which delayed her attention to returning the application for long service leave. 17 Correspondence was directed to Dr Gilbett on 6 November 2003 from Mr Colin Osborne, General Manager of the Hospital, advising that approval for payment of long service leave had been withdrawn, that payments would conclude from 2 November 2003, and seeking an explanation for her failure to attend scheduled medical appointments or respond to the Hospital's communications. This correspondence concludes: "…. unless you provide a satisfactory explanation by 5.00 pm on Monday, 10 November 2003 for your failure to attend the scheduled medical appointment and to respond to the Hospital's contacts, you will be regarded as having abandoned your employment and your employment with the hospital will be terminated. To avoid termination of your employment, you should telephone Michael Hodgson on (number provided) as soon as possible (and by 5.00 pm Monday 10 November 2003 at the latest) to discuss this matter". 18 There was no direct response from Dr Gilbett as required by the correspondence. The only response was submission of an application for leave of absence (exhibit 10), dated 10 November 2003, received by Mr Hodgson on 12 November 2003. This application, as completed by Dr Gilbett, did not specify the type of leave sought or the method of payment. Dr Gilbett nominated eight months as the period of leave but did not specify the commencement or concluding dates. The form was processed and long service leave approved by Mr Hodgson from 8 September 2003 to 16 November 2003 at half pay. 19 Correspondence dated 8 December 2003 from Mr Hodgson to Dr Gilbett was hand delivered by him. This correspondence (attach. O to exhibit 8), reminds Dr Gilbett to attend an appointment with Dr D L Brash on 9 December 2003 as earlier advised and concludes by advising her that: "…. failure to attend this appointment without satisfactory reason would be considered by the hospital to constitute an abandonment of your employment." 20 Dr Gilbett kept the appointment with Dr Brash and his report (attach. P to exhibit 8) concludes in the following terms: "However, the ultimate issue really comes down to her ability to work with senior staff with whom she has had clearly an acrimonious relationship. Her own somewhat rigid view is she should be able to go back to work in the Emergency Department and seems to be somewhat unprepared to look at other options. As to her current status of being on Long Service Leave I will not comment as this appears to be an internal administrative matter between yourself and Heather." 21 Mr Hodgson sought to arrange a meeting with Dr Gilbett to discuss Dr Brash's report and her return to work. Mr Hodgson wrote to Dr Gilbett on 23 December 2003 requesting that she attend a meeting on 6 January 2004 and advising that he would make a copy of Dr Brash's report available to her treating medical practitioner at her direction. The correspondence further advised that if Dr Gilbett required further information or was unable to attend the meeting, she should telephone him, and that she could bring a support person to the meeting should she so require. 22 Dr Gilbett telephoned Mr Hodgson on 5 January 2004 to advise that she would not attend the meeting of 6 January 2004. The meeting was rescheduled to 16 January 2004. Dr Gilbett attended and was accompanied by a representative of the Health Services Union (HSU), Mr Wilson. Also in attendance were Mr Hodgson and Dr Marie Jump, Clinical Director of the Hospital. All parties regarded the meeting as unproductive. 23 At the meeting of 16 January 2004 Dr Gilbett provided a medical certificate, dated 15 January 2004, issued by Dr Bridger, her treating medical practitioner, stating that she was unfit for work until 12 February 2004. 24 Mr Hodgson's evidence, found at attach. S to exhibit 8, states that Dr Jump refused to accept the certificate as it did not divulge the particular illness or state positively that Dr Gilbett had an illness or was unfit, but said no more than that Dr Gilbett was "unable to follow employment". 25 Dr Gilbett's evidence is that she is now fit to return to employment and had always intended to do so on completion of long service leave. Dr Gilbett protested that she was unable to do so due to the termination of that employment following the unsuccessful meeting of 16 January 2004. 26 The termination of Dr Gilbett's employment was confirmed in correspondence dated 16 January 2004 from the General Manager of the Hospital, Mr Colin Osborne, which gave notice of the termination of employment effective 25 January 2004. This correspondence (attach. D to exhibit 1) states: The grounds for this decision are that the employment relationship has been frustrated, originally because of medical reasons and later by your apparent inability to attend work while, at the same time, not providing satisfactory reason for your non-attendance. Until today, you have not provided any medical evidence relating to your absence from work since July 2003, despite requests for you to do so. The certificate presented at today's meeting is not acceptable because it does not indicate whether you are suffering from an illness, or whether it relates to the health issues for which you have previously taken sick leave. It also does not allow the hospital to determine your future employability. You have also declined to take the opportunity, both at today's meeting and previously, to discuss whether you are willing or able to return to work or to participate in the hospital's attempts to progress your return to work. CONSIDERATION Status of Long Service Leave 27 A primary contention put by Mr Giagios was that the employer had approved a period of long service leave to expire in April 2004 and that to intrude upon that leave or to suggest it was conditional is improper, not authorised by the Award, and in breach of the Long Service Leave Act 1955 ("the LSL Act"). Mr Giagios further contended that the employer is not authorised by the Award or the LSL Act to revoke the leave once approved. 28 This argument falls down on its first premise. I find on the evidence that the employer did not approve a period of eight months long service leave on half pay. The evidence demonstrates that in an attempt to assist Dr Gilbett long service leave was approved in periods of two weeks subject to review and further application each fortnight. It is clear that Dr Gilbett did not comprehend or cooperate with this process. She did not herself submit an application for long service leave until November 2003, and then only after receiving a written warning that her employment was in jeopardy through her failure to communicate and cooperate with the employer in resolving those matters which kept her from her place of employment. Long service leave was not approved after 16 November 2003. There is no evidence of any action taken by Dr Gilbett to pursue approval or payment of long service leave after the cessation of payment in November 2003. 29 Long service leave is available pursuant to the LSL Act which makes provision for arrangements between employer and employee for the taking of long service leave. There is nothing in the LSL Act to prevent a conditional arrangement between employer and employee. Section 4(2)(b)(i) provides for the taking of long service leave in the following terms: (b) (i) A worker entitled under this section to long service leave in respect of a period of service with an employer shall not , except in pursuance of an agreement between the worker and the employer entitling the worker to leave in the nature of long service leave in addition to long service leave under this Act, be entitled otherwise than under the provisions of this Act to leave in the nature of long service leave in respect of that period of service with that employer. [Emphasis added] 30 Dr Gilbett's entitlement to long service leave is only that provided by the LSL Act and no more. Accordingly, the giving and taking of long service leave is confined to the provisions of the LSL Act. Section 4(3) states: (3) Subject to subsection (5), where a worker has become entitled to long service leave in respect of the service of the worker with an employer, the employer shall give to the worker and the worker shall take the leave: (a) as soon as is practicable having regard to the needs of the employer's establishment, or, where the employer and the worker agree that the taking of the leave be postponed until an agreed date, as from that date, (b) in one continuous period or, if the worker and the employer so agree, in the following separate periods and not otherwise: (i) where the amount of the leave is 2 months, in two separate periods, (ii) where the amount of the leave exceeds 2 months and does not exceed nineteen and one-half weeks, in two or three separate periods, (iii) where the amount of the leave exceeds nineteen and one-half weeks, in two, three or four separate periods: 31 Correct application of the LSL Act does not allow for the fortnightly periods of leave approved by the Hospital, however motivated by an intention to assist Dr Gilbett in a period of personal and professional difficulty. 32 The LSL Act supports Dr Gilbett's presumption of long service leave in a single, continuous period, however disingenuous this proposition appears in the present circumstances. 33 I regard the long service leave issue to be less material than that of the conduct of Dr Gilbett, the unresolved issues of professional conflict and the termination of her employment at a time when she was certified medically unfit to attend work. 34 Dr Gilbett was represented at the meeting of 16 January 2004. Dr Gilbett refused to consider a return to work program and initially refused to provide the certificate from Dr Bridger. She was subsequently persuaded by her HSU representative to provide the medical certificate but refused to take part in any other aspect of the meeting. 35 I find that the Hospital acted in pursuit of a genuine and sincere motive in extending long service leave, though in a manner not available to it. The termination of Dr Gilbett's employment on 16 January 2004 arises from her unco-operative and unhelpful conduct. 36 As a matter of principle the termination of employment of an employee whilst certified medically unfit, against a background of unresolved conflict within the workplace, is, without more, an action leading to a conclusion of harsh, unreasonable and unjust behaviour by the employer. 37 Dr Gilbett's conduct and her refusal or inability to comprehend her own obligations in the employment relationship mitigate the Hospital's actions in leading to an alternative conclusion. 38 The unresolved question of Dr Gilbett's relationship with peers and superiors is disturbing. There are questions of appropriate medical treatment, records, and issues of professional conduct. The issues and allegations are raised against and by Dr Gilbett. Those matters should properly be resolved by internal mechanism and, if needs be, external enquiry involving all of the relevant professionally qualified parties. 39 The concern so far as these proceedings go is that the issues remain and are of some distress to Dr Gilbett. It is not possible, in the circumstances of this matter, to hold the employer accountable. The means exist for Dr Gilbett to prosecute her concerns both internally and externally. 40 It is not reasonable, in my view, for Dr Gilbett to leave those matters at rest for a period of over 18 months from mid 2002 to the beginning of 2004 and subsequently complain when they remain unresolved. 41 It is universally acknowledged that Dr Gilbett put personal issues above all other considerations during this period. She cannot be criticised or found at fault for adopting these matters as of paramount priority, however, the manner in which she disregarded and diminished any obligation to communicate with her employer in a timely and constructive manner amounts to a repudiation of the contract of employment. 42 The evidence leads to the conclusion that Dr Gilbett did not meet the reasonable requirements for communication and discourse with her employer despite invitation, request and ultimately warning that her employment would be terminated unless she did so. 43 The lengthy period of time involved from December 2002 to January 2004 and Mr Hodgson's attempts to assist Dr Gilbett with the issues and a return to work plan, all of which failed to attract a contribution to continuation of employment by Dr Gilbett, lead to the conclusion that the employment relationship is irretrievably broken down. An exercise of the Commission's discretionary power to reinstate the employment relationship would be neither fair, practical, nor in the best interests of either party. 44 I am unable to find the termination of Dr Gilbett's employment to be harsh, unreasonable or unjust and accordingly I decline to intervene. 45 Matter No IRC 775 of 2004 is so concluded. oo0oo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.