Industrial Relations Commission of New South Wales CITATION: Leonila Pilli and DG NSW Dept. of Health SESIAHS [2010] NSWIRComm 1050 APPLICANT Leonila Pilli PARTIES: RESPONDENT The Director General, NSW Department of Health in respect of the NSW Health Service (South Eastern Sydney and Illawarra Area Health Service) FILE NUMBER(S): 1570 of 2009 CORAM: Tabbaa C CATCHWORDS: Unfair dismissal; Procedural unfairness; No reason provided for dismissal; excessive approved sick leave, sick leave within entitlement range; Poor sick leave record; bullying/harassment by fellow workers; failure to provide authority to speak to treating doctor. Industrial Relations Act 1996 LEGISLATION CITED: Health Employees' Administrative Staff (State) Award Health Employees' Conditions of Employment (State) Award CFMEU v Northern Sydney Area Health Service Asset Services Group [2004] NSWIRComm 251 Finch v Sayers (1976) 2 NSWL R540 CASES CITED: Hilton Hotels of Australia Ltd v Pasovska (2003) 122 IR 428 New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89 Duggan v BlueScope Steel (AIS) Pty Limited 89 [2005] NSWIRComm 1155 HEARING DATES: 08.04.2010 09.04.2010 DATE OF JUDGMENT: 17 September 2010 APPLICANT Mr D O'Sullivan - Counsel Instructing Solicitors: Turner Freeman, Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms S Price Solicitor Bartier Perry Pty Ltd DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: TABBAA, C. 17 September 2010 Matter No IRC 1570 of 2009 Leonila Pili and The Director-General, NSW Department of Health in respect of the NSW Health Service (South Eastern Sydney and Illawarra Area Health Service) Application by Health Services Union on behalf of its member, Leonila Pili, re: unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. JUDGMENT [2010] NSWIRComm 1050 1 The Applicant, Ms Pili, was employed with the Respondent's predecessor, Eastern Sydney Area Health Service, at Strickland House from 7 December 1987 until it amalgamated with the Illawarra Area Health Service on 9 December 1990. Ms Pili's employment continued with the amalgamated organisation, the South Eastern Sydney and Illawarra Area Health Service until her alleged unfair dismissal on 15 September 2009. 2 The Respondent maintained two different accounting systems - one each for the organisations subject to the amalgamation. 3 In 2006, there was a restructure in the Billing Services Department. A vacancy arose in relation to the position of Senior Overdues Processing Officer (Reporting), an Administrative Officer, Level 4 position. She was disappointed when her application was unsuccessful. However, that was remedied on 17 March 2007 following a successful appeal to the Government and Related Employees' Appeals Tribunal (GREAT). 4 The Billing Services Centre was divided into five sections, including the Overdues section. Mr Colin Owers was the Applicant's direct supervisor when he was Manager of the Overdues Section. In March 2009 he became Acting Manager for the Billing Services Centre as a whole having taken over the role from Mr Mario Nayna. 5 Ms Pili agreed that the Senior Overdues Processing Officer (Reporting) was a specialised role. She also agreed that an essential criteria for the position was completing daily, weekly and end of month reports. Sometimes there were two separate end of month reports required because of the accounting system used. She further agreed that the key performance areas of the role were completing the reporting tasks on time and in a timely manner in addition to her end of month duties. 6 Ms Pili had no staff to manage. She had access, through her computer terminal, to all of the financial data for the accounts she was looking after - eg Lions Bone Bank, the Eye Bank, and so on. If she was absent on unscheduled leave there was no-one else available to undertake her duties. Her duties fell on Mr Owers, who was her direct Supervisor until his promotion to the position of the overall Manager of the Billing Services Area, to perform. Ms Pili contended that she was never told that she was not meeting any of the essential criteria or key performance areas of her role. Prior to proceeding on periods of scheduled leave, she would train someone else to undertake her duties. 7 Ms Pili contended that issues regarding her work performance commenced to be raised with her following her successful appeal to GREAT. She pointed out that a formal grievance she submitted concerning bullying and harassment in the workplace was resolved in her favour albeit not in a timely fashion. 8 The Respondent contended that Ms Pili's allegations of bullying and harassment had not been substantiated. 9 The Health Employees Conditions of Employment (State) Award provides for 10 days sick leave per annum. However, as a transferring public servant, Ms Pili's contract of employment provided for 15 days sick leave per annum. 10 Each episode of sick leave was counted as one day. One episode could be one day or a number of days. Ms Pili was entitled to 15 episodes per annum. 11 Ms Pili suffered from chronic asthma which, she alleged, was exacerbated in recent times by the conditions at the workplace. She said she continually requested the Respondent to investigate the presence of dust mites or other occupation which caused her medical condition to worsen. It was alleged that rather than protecting her health and wellbeing, the Respondent put her at risk and took disciplinary action against her. 12 A claim by Ms Pili for workers' compensation for psychological injury for work related issues was declined. She contended that, in assessing her increased access to sick leave, the Respondent failed to take into account the fact that she continued to take medication for hypertension and for depression. 13 The Respondent stated that the Applicant's attendance was managed, since September 2007, in accordance with the NSW Health Sick Leave Management Policy. 14 Ms Pili had taken 23 sick leave days on 14 occasions in the 12 months to 30 June 2008 and 42 sick leave days on 20 separate occasions in the 12 months to 30 June 2009. 15 Ms Pili's medical practitioner certified her as fit to perform her full duties on 29 January 2009 and invitations to update that advice had not been taken up by Ms Pili. 16 Nevertheless, she was absent on 19 occasions in the 12 months to 30 June 2009 and a further 22 occasions in the 12 months to 30 June 2009. 17 It was not disputed that Ms Pili had a sick leave accrual balance of 145.63 hours at the time of her termination. 18 Ms Pili contended that the Respondent chose to terminate her employment for reasons of a poor sick leave record rather than address concerns she had raised in relation to environmental issues at the worksite. 19 Ms Pili filed a claim pursuant to section 84 of the Industrial Relations Act 1996 on 6 October 2009 stating that she had been unfairly dismissed by the Respondent on 15 September 2009. She had been employed pursuant to the terms and conditions of the Health Employees' Administrative Staff (State) Award and the Health Employees Conditions of Employment (State) Award. 20 Conciliation proceedings held on 10 December 2009 failed to resolve the claim and the matter was listed for hearing at which time Mr D O'Sullivan, of Counsel, entered an appearance on behalf of the Applicant and called evidence from Ms Pili. Ms S Price, Solicitor, entered an appearance on behalf of the Respondent and called evidence from: Colin John Owers Acting Manager, Billing Services Cathryn Hellams Manager, Workforce Services THE APPLICANT'S EVIDENCE 21 Ms Pili gave evidence that she was employed by the Respondent on a full-time basis working from 8 am to 4 pm daily. Prior to the restructure in 2006, she had not received any warnings or counselling as to her performance, she maintained a good working relationship with her managers and colleagues, had a good service record and she did not take a great deal of sick leave. 22 She said that she attended a meeting in 2006 during which her then Manager, Mario Nayna, advised all the staff in her section that there was going to be a restructure of the Revenue department and they were required to re-apply for their restructured positions. 23 She said she formed the view that she had performed well in the subsequent interview for her level 4 position but was advised a week later that she had lost it to a level 3 employee from another section, Mrs Del Castillo. Her appeal to GREAT was upheld on 13 March 2007 and she was offered a permanent position as the Senior Overdues Processing Officer. 24 She deposed that she found the appeal process both difficult and distressing in that the work environment became uncomfortable. She felt that her relationship with her Manager and co-workers had deteriorated, and substantially so with those co-workers who were friends with Mrs Del Castillo. 25 She said that in the year following her successful appeal, she had two run ins with a co-worker, Ms Sharma, who was a close friend of Mrs Del Castillo. While neither of the incidents were of a serious nature, she perceived them as attempts to make her uncomfortable at the workplace. She said that the concerns she raised about bullying and harassment by fellow workers were ignored by management and the Service generally. She said she felt victimised. She contended that management took a long time to investigate her complaints and eventually dismissed the incidents following a very short and cursory investigation. She was distressed that the meetings held with management produced no satisfactory outcome. 26 She agreed that although the first incident with Ms Sharma occurred on 1 April 2008 and the second incident occurred on 8 April 2008, she did not record the incidents on the AIMS reporting form until 4 June 2008 and did not log the complaints into the system until 5 June 2008. 27 She agreed during cross-examination that she had formally logged those complaints into the system on the advice of Mr Peter Hudnall. However, during re-examination, she clarified that she took that step after speaking to Mr Hudnall but it was not he who advised her to make the formal complaint. 28 Ms Pili agreed that the Respondent had investigated her complaints but pointed out that the investigations had taken too long. She explained that because it took 10 months to deal with her complaint, her sick leave had escalated. 29 She noticed that her asthma had worsened over the previous couple of years. She discussed the level of dust in the work area with her colleagues. She kept a window that was next to her work station slightly ajar, off and on, for many years as she found that doing so reduced the likelihood of her suffering an asthma attack. She noted that the open window did not become an issue until after her GREAT appeal. Her manager advised her that a complaint had been received that the open window interfered with the air-conditioning. She provided a medical certificate from Dr Viola Rizk, dated 12 January 2007, directly to Colin Owers in relation to her need to have the window open. She denied the assertion that Mr Owers had offered her the opportunity to move her work station closer to his where there was no air conditioning and she could open a window. Once again, she felt ignored and felt dissatisfied with the way in which management dealt with her complaint as to the handling of the window issue. 30 In 2008, she escalated the matter by complaining to more senior management. Ms Sharma moved on from Billing Services in around July 2008. The response she received from Gerard Rooney, Director Workforce Development, dated 9 January 2009, confirmed that there were shortcomings in the way that management had handled her concerns in that a resolution of the issue was delayed. Nevertheless, it was held that there was insufficient evidence to prove the allegation of bullying against Ms Sharma and the allegation that she had been targeted in relation to the open window. The correspondence advised of the following findings: I am writing to advise you that the Professional Practice Unit has concluded its investigation of allegations of bullying and harassment .... I have considered the evidence gathered and reached the following conclusions: Allegation One – That Ms Pili has been unfairly targeted by management in relation to minor matters that should have been directed to staff in the Department more broadly with specific reference to the opening of windows. This allegation was not sustained. There was evidence from a number of staff that there had been a general directive to all staff not to open the windows. This was in response to concerns that the air conditioners were not heating or cooling evenly. It is understood that following consultation with OH & S staff and advice from your doctor that there is no longer an objection to you having your window opened slightly. Allegation Two – That Ms Sharma did things to deliberately upset Ms Pili and that this conduct represents targeted bullying and harassment including: · Reporting to a supervisor about windows being left open (management only raised this by email with Ms Pili despite other staff leaving their windows open). · Ms Sharma leaving the fire exit door open. · Ms Sharma slamming the fire exit door. · Ms Sharma verbally abusing Ms Pili after she asked Ms Sharma to close the door to the fire exit. · Ms Sharma physically struck Ms Pili and bumped into Ms Pili while she was running down a corridor, waving her arms and laughing. · It was also alleged that Ms Sharma's verbal abuse of Ms Pili had been heard by staff, including a supervisor and that no one intervened. There was insufficient evidence to reach a conclusion that Ms Sharma's conduct towards you represented targeted bullying and harassment. However, feedback will be provided that practical jokes and running down narrow corridors is not appropriate. Allegation Three – That there has been a failure on the part of local and senior managers to take appropriate action to address Ms Pili's complaints. I have sustained this allegation, in part. I have considered the manner in which your grievance was managed and concluded that there have been some shortcomings that have unnecessarily delayed this matter being concluded. The relevant managers will be required to undertake training in managing workplace grievances. I am satisfied that the matter has been properly investigated and concluded. I am aware that there is a degree of acrimony between yourself and Ms Sharma. Notwithstanding any personal ill feeling that may exist, it is my expectation that you both conduct yourselves in a professional manner and give consideration to each other so as to ensure that the services provided continue to be our primary focus.... 31 Ms Pili gave evidence that, despite having raised with management on several occasions that her asthma attacks were triggered by stress and dust, she had not observed anyone conducting a workplace assessment nor had she seen any document purporting to be a risk assessment of that workplace. 32 She contended that no attempt was made by management to mend the fences within that section and she felt like an outcast. She said that the workplace environment became more difficult to work in. Her anxiety and distress increased during the period March 2007 to 2009 as a result of her concerns and grievances being consistently ignored. She consulted her doctor who advised her of a rise in her blood pressure. 33 Ms Pili stated that that prior to the restructure, she had provided 15 years service during which she had not taken "a great deal of sick leave". She admitted that she had taken more sick leave over the previous couple of years than she had in the previous 16-17 years of employment with the Service because she had not felt physically capable of attending work. She provided varying reasons for her absences. She said that, in addition to the usual reasons, the anti-depressants she had been prescribed during 2008 made her feel drowsy at times and unwell at other times until she became more accustomed to them during 2009. Another reason she provided was that she was suffering from work-related stress. 34 She pointed out that all of her sick leave had been notified to her employer, were supported by medical certificates and were taken from her sick leave accruals. She pointed out that, despite the sick leave she had used up over the previous couple of years, she still had approximately 3.5 weeks in accruals at the time of her dismissal. All of the sick leave she had taken, between the period 2 August 2007 and 29 June 2009 had been authorised and had been paid leave. 35 She acknowledged receipt of the letters indicating to her that the Respondent considered that the amount of sick leave she was taking was excessive. She pointed out, however, that she was never advised what the Respondent considered to be an acceptable level. She was entitled to 15 days sick leave per annum cumulative. 36 Ms Pili pointed out that the letters she had received from the Respondent advising that her sick leave had reached excessive levels did not, at any time, suggest that her performance, when she attended work, was unsatisfactory. Nor did the Respondent assert that she was not genuinely entitled to the sick leave she had taken. She pointed out that she had to take sick leave to attend appointments with her Psychologist because no effort was made by the Respondent to alleviate the major contributor to her sick leave – the on-going harassment she was suffering. 37 Ms Pili acknowledged that she had received a letter from the Manager of the Area on behalf of the Revenue Department at Randwick Hospital dated 26 November 1999 although she had no specific recollection of it. The letter, which was about her sick leave absences, reminded her about the sick leave policy pertaining at that time. 38 Ms Pili acknowledged the letter sent to her by the Manager of her Department, Mario Nayna, dated March 2006, for sick leave she had taken up to 27 March 2006, prior to the restructuring. She was invited to discuss her unsatisfactory sick leave absences (7 separate occasions in 12 months) with him. She stated that they held a meeting on that day when she advised that she was an asthmatic, was stressed and had to prepare for the GREAT appeal. 39 She acknowledged receiving a letter dated 31 August 2007 - after the GREAT decision and after winning her position. Ms Pili agreed that she had been invited to take a support person to the meeting and had been informed that the process was being undertaken in accordance with the Respondent's Sick Leave Management Policy which was able to be accessed through the intranet or the Human Resources department. She was also advised of the availability to her of the Employee Assistance Program, a confidential service for use by any employee with concerns about their employment. She had a meeting with Mr Nayna during which they talked about the contents of the letter. 40 She recalled receiving another letter from Mr Nayna after that meeting which once again referred to the Policy and advised that her sick leave would be monitored over the next six months. The letter stated in part: It is appreciated staff can have recurring illnesses of short durations and if your medical history is one which involves this aspect, you are invited to discuss this matter with a human resources consultant or with me. She acknowledged it receipt by signing the bottom of that letter. She said that she raised her asthma with Mr Nayna but not with Human Resources and chose not to respond to it in writing. 41 She acknowledged receipt of the follow up letter to the one above by signing it at the bottom. It advised her that she had two further occasions of sick leave since the last occasion. She was advised that she was required to provide medical certificates albeit she was already providing medical certificates for each occasion she went on sick leave. She acknowledged that she was aware that her sick leave record had become a serious matter because the letter warned: I regard unsatisfactory sick leave record as a serious matter and will consider firm disciplinary actions, including dismissal, should there not be an immediate and sustained improvement. She confirmed that the letter had once again offered the services of the Employee Assistance Program and she had actually begun to participate in it. During re-examination, she said that she spoke to Eva Rollinson twice - the first time being in May 2008 and the second being either May or June 2008. She paid Ms Rollinson another visit as she was not satisfied with the first visit because, instead of receiving advice, Ms Rollinson merely heard her out. 42 The next letter was from Colin Owers who had replaced Mario Nayna as the Manager of the Billing Services Centre. The letter also sought an immediate and sustained improvement in her sick leave. She was aware that her sick leave record was a serious matter and that the Health Service was considering disciplinary action, including dismissal, if improvement was not forthcoming. She stated that she had signed that letter without thinking properly because she was depressed and on medication. She was aware that it was about her sick leave because it had her sick leave account in it but was too stressed and was on medication which had side effects. During re-examination, she clarified that she was suffering from side effects of both her antidepressants and blood pressure tablets. Both medicines were later replaced. 43 She confirmed receipt of the letter from the Chief Financial Officer, Peter Hudnall, in January 2009. She understood that he required her to provide her job description, which he attached, to her GP and to obtain advice regarding her fitness to perform the duties attached to her role. That was because she had taken a further 20 occasions of sick leave. She explained that because she was stressed she did not consult Dr Rizk straight away regarding that requirement. She eventually consulted her on 21 January 2009 and obtained a certificate certifying her as fit to perform the duties set out in the job description. She confirmed that Dr Rizk was her treating doctor for some time and was aware of her asthma and her concerns about the workplace. She provided that certificate to the Respondent on 30 January 2009. 44 She recalled receiving another letter from Peter Hudnall in which he noted that her GP had stated that Ms Pili was fit to perform her role. An attempt was made to organise a meeting with her for 10 February 2009. The meeting was postponed as a result of her contact with the Health Services Union (HSU). She emailed Kerrie Seymour from the HSU asking her to attend with her and provide her with assistance as she was distressed and was suffering from stress and anxiety, depression and high blood pressure. To the best of her knowledge Ms Seymour contacted the Respondent and advised of the Applicant's inability to attend the meeting. 45 A rescheduled meeting for 17 February 2009 was also called off because she sent Peter Hudnall a note advising that she was unwell. During re-examination, she stated that the meeting did not go ahead because Ms Seymour was not available. 46 Ms Pili explained that she had not made any effort to reschedule the meeting as she was taking medication for high blood pressure and was suffering from its side effects. That medication was also changed. 47 She agreed that she had received another letter from Peter Hudnall. In response she had gone to see Colin Owers as it included reference to four unscheduled absences. She agreed that the letter advised her that her attendance would be reviewed monthly and that "a failure to improve will result in a review of your continued employment". She did not make any suggestions regarding reducing her hours of work to assist her with her asthma stating that she was stressed out at the time of that discussion. She pointed out that Colin Owers could have taken the opportunity to discuss the letter with her. She argued that management did not provide her with any assistance in managing to reduce her sick leave. She agreed that she did not make any attempt to contact Catherine Meharg, the Deputy HR Manager, following receipt of that letter. 48 She remembered attending a meeting on 5 June 2009 with Kusum Lal as her support person. She met with Catherine Meharg and Jennifer Hill from HR and Colin Owers. She agreed that she had not included any mention of that meeting in her affidavit. She pointed out that Ms Meharg was not aware, prior to that meeting, that Ms Pili was an asthmatic. She acknowledged that Ms Meharg handed her a letter which authorised Ms Meharg to speak to her doctor. Ms Meharg told her that if she did not hear from her by the next day, she would write to Ms Pili to follow up on the permission to speak to Dr Rizk. She agreed that it was clear to her that the Respondent wanted to talk to Dr Rizk about her. She agreed that they "probably" suggested the following to her: # the purpose of the meeting was to ascertain whether she could attend work regularly; # an option to help her manage her attendance at work was a reduction in her working hours; # her sick leave would be monitored monthly; # her employment would be reviewed in three months. 49 She recalled that she was overstressed and therefore insisted that she had said at the meeting that if there was a work problem they could call her Solicitor to discuss it. During re-examination, she pointed out that she had consulted a Solicitor because of all her grievances, stress, work problems. In addition to that, she had filed a workers' compensation claim. She contended that the stress was a result of management raising with her its concerns about her unsatisfactory sick leave. 50 Her responses to questions in cross-examination about that meeting were prefaced with the following qualifications "I wasn't really participating on (sic) that meeting" and "I wasn't paying attention" although she was quite clear that the Respondent wanted to write to Dr Rizk about her. She agreed that she had not, at any time, given permission for Kathryn Meharg or anyone else to speak or write to Dr Rizk. During re-examination, she stated that she had never stopped the Respondent from contacting Dr Rizk. 51 She denied receiving the letter dated 17 June 2009. 52 She confirmed that she consulted Dr Rizk on 31 July and she had provided her with a certificate in which she noted that the Applicant was "fit to resume full duties on 1 August 2009". She argued that it was not in response to the request made at the meeting on 5 June: A. The reason why I went in there, because I am suffering from my asthma, so while I am in there at the same time, I ask her to wrote this for me, so I don't need to go back and take another sick leave. 53 Ms Pili pointed out that the Respondent never sought to have her examined by a nominated medical practitioner nor did it take any steps to work with her to deal with the causes of her illness. She said the letters from the Respondent to her in relation to her excessive sick leave only served to exacerbate her level of stress. 54 Ms Pili was invited to attend a meeting at 3 pm on 7 August 2009. She said she was not told what the meeting was about nor was she provided with an opportunity to take a support person in with her. Mr Owers had a second Manager in attendance with him. She recalled that Mr Owers said to her words to the effect: I have been told to tell you that you are required to leave the building now or else I am to call security. In response to her query, he advised that he could not tell her the reason but she would be sent a letter to her home. She denied that he had asked her if she wanted a support person in the meeting with her. Initially, she agreed that she had said she wanted Terry Clout. In the next breath she stated that she could not recall asking for him to attend. She agreed that she had the opportunity to speak to Kusum Lal after the meeting before she went home. 55 She said she received a letter dated 7 August 2009 the following week in which she was advised by Mr Terry Clout, Chief Executive, that he was inclined to accept a recommendation that her employment be terminated. She was stood down effective on the same date. The correspondence relevantly stated: I refer to correspondence dated 17 June 2009 regarding ongoing absences on sick leave and your unsatisfactory attendance pattern as documented in the attached leave reports. I note your General Practitioner, Dr Rizk, certified you fit to perform your Job Description on 29 January 2009. However, as your sick leave continued to be unsatisfactory, you were provided the opportunity to update Dr Rizk's advice. This has not been received. You were advised in correspondence emailed to you on 2 April 2009 that an immediate and sustained improvement in your attendance was required. For the three month period 1 April 2009 to 30 June 2009, you have been absent on five occasions totalling eight days. It has been recommended that your services be terminated on the basis of failure to attend duty in accordance with your employment contract. I am inclined to accept this recommendation. You now have the opportunity to provide in writing by close of business within seven (7) days from the date of this letter, reasons as to why your employment should not be terminated....At that time your response will be reviewed should you choose to make one. You will not be required to attend duty until further notice. You are encouraged to make contact with the Employee Assistance Programme ... should you need assistance in dealing with this matter. If you have any questions regarding this process, please do not hesitate to contact Ms Kathryn Meharg, Acting Human Resources Manager .... Terry Clout Chief Executive 56 Ms Pili forwarded an email response on 17 August 2009: ...... Firstly may I point out, that the correspondence dated the 7/8/09 was provided to me via my personal email, following a request from Lead Organiser Kerrie Seymour of the HSU. At the time of writing, I have still not received any correspondence via the post as indicated in M/s Meharg's email of the 11th August 2009 and also hand written on the correspondence. I would also like to draw your attention to manner in which I was treated by management, regarding my suspension from work on Friday, the 7th August 2009. I was called by Mr Collin Owers in Marios' office, around 3.00pm on Friday the 7th August 2009 and asked to leave the premises immediately without being given the reason. When I asked for the reason, I was told that the letter from Area Management was being delivered to my home address and that Collin could not tell me the reason. Colin told me that if I did not step down and leave, he will get a Security Officer to remove me. This was extremely distressing for me as I was unaware that I had done anything wrong and was just seeking clarification as to why I was being suspended. My support person was Kusum Lal who can verify what had occurred. I was unaware at that time that I was being stood down with pay until I had contacted Lead Organiser Kerrie Seymour from the HSU who contacted the area health service to enquire as to why I had been stood down from work and also to ensure that I would be paid. I do have a medical condition (Asthma) which I have advised, and is supported by medical certificates. I have raised, on several occasions with management, that my asthma is triggered by stress and dust. My workplace/department is very dusty and I have previously asked for a risk assessment to be done, however to my knowledge this has not occurred. My original grievance with M/s Nutan Sharma took an excessive amount of time to be processed and dealt with by management which inevitably caused me much anguish and stress and only exacerbated my illness and led to me having to seek medical assistance for hypertension. My medical practitioner prescribed medication which caused me to have an allergic re-action (coughing fits), which again just exacerbated my asthma. I was also prescribed with medication for depression which has taken some time to adjust to, affecting my ability to work cohesively within the workplace. In my view, Management's failure to act promptly in resolving the workplace grievance has had a significant effect on my rehabilitation and did not assist in providing me with a safe and healthy working environment. All of my sick days have been backed up by a medical certificate as requested by management and I had provided Mr Owers with an updated certificate to advise that I am fit to return to work for full duties from the 1st August 2009. I personally feel that I have been targeted since I took the issue of appealing an appointment to the position advised in my original grievance to G.R.E.A.T. I have been employed by Health for some 20/22 years and believe that I am hard working and competent in my job and that my current history of employment will support this claim. That it has only been in recent times that my sick leave has escalated and I believe that I have outlined the reasons for this. I am the main breadwinner in my family and I have a mortgage to pay and by having my services terminated will cause me extreme financial stress. It is my desire to put the whole grievance issue behind me and move forward in a positive manner. I would however ask that the situation with the dust in the department be revisited and a risk assessment be done and/or that the unit has a thorough clean in order for me to have less of an opportunity to have a re-occurrence of Asthma. I am also happy to seek the assistance of a counsellor in order to help me deal with and move forward from the issues surrounding my grievance. The issues may have seemed trivial to management, however they have been stressful to me. I would be happy to meet with you or one of your officers with a Union Organiser with me to further expand on this correspondence and/or to set out some targets/strategies in order to manage my sick leave for the future. I would like to thank you for giving me the opportunity to put forward my case and just hope that you will give this matter due consideration.... 57 Ms Pili's employment was terminated on 15 September 2009 by letter of the same date. It relevantly advised: ...... I have considered your written response and determined that the information you have provided does not dissuade me from accepting the original recommendation. Your contract of employment will therefore be terminated from the date of this letter in compliance with provisions of Clause 20, Termination of Employment of the Health Employees' Conditions of Employment (State) Award . In accordance with this Clause, you will be paid one week's pay in lieu of notice. ... 58 Ms Pili denied ever being advised by the Respondent that her employment was terminated for failure to provide consent to the Area Health Service to contact Dr Viola Rizk or any other doctor. She kept repeating that her stress prevented her from responding to the issues raised by the Respondent. Nevertheless, she pointed out that she had never advised the Respondent that it could not approach/speak to her doctor for an assessment as to whether she was fit to return to work. Dr Rizk has been her treating practitioner for about 15 years. 59 The Applicant advised that she remained unemployed and found it difficult to obtain alternative employment since her termination following 19 years of service. She was still feeling shocked, distressed and depressed by what had happened. She stated that she enjoyed her job and wanted to return to her former position. She indicated that if that was not possible, she would be willing to work in a different hospital. 60 The Applicant produced a doctor's certificate from Dr Rizk dated 7 April 2010 which certified her as "fit to perform full duties as per position description. The asthma and stress levels have settled". THE RESPONDENT'S EVIDENCE 61 Mr Owers gave evidence that he had worked with the Applicant over a period of 12 years. Initially, as Manager of the Overdues section, he was the Applicant's direct supervisor. He deposed that they had enjoyed a good relationship and if she ever wanted to raise any concerns with him, she would do so and they would discuss them. He was not aware that, apart from the following matters, that she had found the workplace generally difficult. 62 During cross-examination, he agreed that he had never questioned the quality of her work although, during the latter stages she had made "some silly mistakes". However, she had not been issued with any formal warnings regarding her work performance. 63 He explained that the role the Applicant held as Senior Overdues Processing Officer was an important role as she had responsibility for managing a number of overdue accounts for: Lyons Club Eye Bank (operated by St Vincent's Hospital) Inter-hospital accounts; and Bone Bank (operated by St George Hospital) Her main functions included: (a) Completing daily processes; (b) Performing weekly functions such as processing reports, checking balances, consolidating daily information; (c) Monthly functions; (d) End of financial year functions; (e) On-going role of cleaning up the system and storing data onto CD roms to create space on the server; and (f) Assisting other areas if she had capacity. 64 In relation to the end of month processes, she had two significant functions – diagnostic pathology bills were required to be completed three or four days before the end of each calendar month and hospital bills were required to be completed by the last day of the month unless the last day fell on a weekend in which case it had to be by the last Friday of the month. The Service operated two different types of billing systems. 65 Mr Owers pointed out that the nature of her work required her to be reliable, particularly at the end of the month and at end of financial year processes. The Service was able to work around her planned, authorised absences but found it extremely difficult to cater for unplanned absences particularly at those critical times. He stated that the work would usually fall back on him to perform if she was having an unplanned absence. Incident One 66 He recalled that on April Fool's Day in 2008 he received a telephone call from Mario Nayna, the Billing Services Centre Manager, asking him to attend a meeting with himself, Ms Pili and Kusum Lal. Ms Pili alleged at the meeting that Nutan Sharma had collided with her. He pointed out that unless there were witnesses to the incident, then it was her word against Ms Sharma. Ms Pili insisted that she wanted "disciplinary action taken". Ms Sharma was interviewed and she denied the Applicant's allegations and version of events. He met with the Applicant and advised her that, in the absence of any witnesses to the alleged incident, the matter could not be taken any further. Incident Two 67 Ms Pili made a further allegation that, on 8 April 2008, Nutan Sharma had pushed her in the back while passing her on the stairs at Central Station. He said that he discussed the complaint with Mario Nayna and they decided that it was not the Respondent's responsibility as the incident happened outside of the workplace. He advised the Applicant to report the matter to the Police if she felt that she had been assaulted. 68 Mr Owers said that he and Mr Nayna noted that the Applicant had not lodged either of the above complaints through the formal channels. She was asked to lodge formal complaints through the Incident Information Management Systems (AIMS) so that they could be properly managed. She logged both complaints on 4 June 2008. He was aware that the Professional Practice Unit investigated both complaints because he participated in an interview conducted by that unit. The complaints were not sustained. 69 Mr Owers denied the Applicant's suggestion that there were many meetings held without an outcome being achieved. He believed that the Applicant's complaints had been dealt with in a reasonable manner. He pointed out that Ms Pili and Ms Sharma did not work together after 14 July 2008. Incident Three 70 Mr Owers conceded that the Billing Services section worked out of an old building on the Randwick campus and, because it was a non-clinical area, it did not receive priority for cleaning albeit it was cleaned regularly and at appropriate intervals. The Respondent's records indicated that the vents, blinds, fans, partitions and window sills were cleaned in February 2009. Air-conditioning was installed some five or six years previously but there were some ongoing issues in relation to adjusting the temperature to satisfy everyone's needs. As a result, a direction was issued to all staff that windows were to remain shut. Nevertheless, he did not enforce that direction in relation to Ms Pili. Instead, he invited her, on a number of occasions, to see him if she had a problem. 71 He denied the allegation that she never got a response and was ignored. He pointed out that around the period April/May 2008, when the issue of the open window and air-conditioning was raised, he had offered the Applicant the opportunity to relocate her work station to a location closer to his office where there was no air-conditioning and where she was free to open a window. She had declined the offer and responded with words to the effect, "Why should I have to move?" During cross-examination, Mr Owers stated that he had not made the offer himself but was present when Mario Nayna made the offer to the Applicant. He also confessed that he was not aware, prior to Ms Pili's employment being terminated, that she allegedly requested a risk assessment to be done in the workplace regarding dust. He was aware that Mario Nayna had a risk assessment done because of the complaints regarding the air conditioning. He confirmed that no risk assessment was undertaken, that he was aware of, after 17 August 2009 and before 15 September 2009. 72 Mr Owers provided details of the management of the Applicant's sick leave absences. He pointed out that she had declined to attend meetings scheduled on 10 and 17 February 2009 to discuss the Respondent's attendance expectations, impediments to satisfactory attendance and options to assist her to attend regularly. In April 2009, Mr Peter Hudnall, Chief Financial Officer, wrote to the Applicant advising that in view of the fact that her doctor had certified her fit to perform her duties, her attendance was going to be reviewed monthly and a failure to improve would result in a review of her continued employment. 73 Mr Owers stated that he held a meeting with the Applicant and her support person, Kusum Lal, on 5 June 2009. Also present at that meeting were Ms Kathryn Meharg from Human Resources and an observer, Ms Jennifer Hill, Acting Deputy Human Resources Manager. The purpose of the meeting was to explore the reason for the excessive sick leave and ways in which the Respondent could accommodate it. During cross-examination, he conceded out that he was not aware, until recently that, as a transferred public sector employee, she was entitled to three weeks' sick leave per annum. Nevertheless, his lack of knowledge was not fatal as the process had already been commenced by his predecessor (who left in June 2008) in that two letters had been issued to her. He said he was not aware of the existence of the second letter from Ma Nayna and that was why continued the process by sending another letter to the Applicant. Had he been aware, he would have forwarded the matter direct to the Chief Financial Officer. He was aware that a workers' compensation claim she had filed had been rejected and she was appealing that decision. He recalled that he asked the Applicant if they could do anything to assist her as she was still taking a lot of sick leave. Her response was to the effect that she had received legal advice to make no comment at the meeting. He recalled Kathryn Meharg asking whether he would accommodate the Applicant working reduced hours to which he replied that it was "certainly something we would try to do". However that option could not be pursued because the Applicant would not participate in discussions. He further recalled that Kathryn Meharg asked Ms Pili to provide authorisation, by 9 June 2009, for the Respondent to contact her GP to update the advice regarding fitness to undertake the duties attached to the position. She also advised the Applicant that her sick leave would be reviewed on a monthly basis and her continued employment would be reviewed in three months. He kept contemporaneous notes of that meeting which he tendered in the proceedings. He recalled that the Applicant responded to virtually every question with words to the effect that her lawyer told her to say nothing - he did not deduce from that response that Ms Pili was suggesting that the Respondent contact her lawyer to seek permission to talk to her GP. 74 Mr Owers said that Ms Meharg wrote to Ms Pili on 17 June 2009 pointing out that she had failed to provide written authorisation for the Respondent to write to her GP to seek updated advice on her fitness to perform her role. Ms Pili was asked to obtain and submit such advice by 26 June 2009. 75 Mr Owers stated that after consulting with Ms Meharg, it was decided that Ms Pili would be asked to show cause why her employment should not be terminated in view of the fact that she had failed to provide the authorisation to speak to her doctor. In the interim, he decided that she would be stood down with pay. He explained that he believed that a disgruntled employee was capable of deleting or corrupting significant data. In view of the fact that the Applicant managed an important role, he could not take that risk. He rang the Applicant on 7 August 2009 and invited her to a meeting with him. He did not tell her the purpose of the meeting as he wanted the discussions to remain confidential and he did not want her to discuss the issue with her colleagues in the section. 76 Ms Kiah Tan, the Financial Controller, attended the meeting on 7 August 2009 as an observer. Mr Owers said that he invited her to have a support person at the meeting. She responded that she required Terry Clout, the Chief Executive of the Service to attend. He instructed her not to attend the Centre on the following Monday and asked her to return to her desk and gather her personal belongings. He warned that if she did not do as she was instructed and go quietly, he would get security to escort her off the premises. A Human Resources staff member supervised the Applicant as she collected her belongings and left the premises. Mr Owers kept contemporaneous notes as to what was said at that meeting. Those notes were tendered in the proceedings. 77 The Chief Executive wrote to Ms Pili and forwarded the letter by post on 7 August 2009. He advised that he was inclined to accept a recommendation to terminate her services on the basis of her failure to attend duty in accordance with her employment contract. He invited her to provide, by close of business within seven days from the date of that letter, reasons as to why she should not be terminated. In the interim, she was advised that she was not required to attend duty until further notice. She was encouraged to make contact with the Employee Assistance Programme if she needed assistance. 78 Ms Cathryn Hellams, Manager Workforce Services was engaged in March 2008 to oversee the Human Resources function for the Service. She had access to the records relating to the Applicant for the period during 2008 and 2009 when Kathryn Meharg was acting Human Resources Manager, Southern Hospital Network. Ms Meharg's responsibilities had included the human resources function for the Billing Services Centre at Randwick. Ms Meharg left for the United Kingdom at the end of November 2009. Ms Hellams commenced employment with the Service in March 2008 at a time when action had already commenced in relation to Ms Pili's sick leave. Her involvement came towards the end of the process when they were moving into more active management of Ms Pili's attendance at work. 79 Ms Hellams confirmed that the procedure was for the employee's immediate manager, in Ms Pili's case Mr Mario Nayna, to either produce a document himself or ask the Human Resources Department or Payroll Department to produce a report from the payroll system of sick leave taken by the relevant employee. If the report indicates that eight occasions of sick leave had been taken (an occasion being one or more days), it would trigger the process for unacceptable levels of sick leave. A staff member who has had eight separate absences unsupported by medical certificates in any period of 12 months is considered to have an unsatisfactory sick leave record. 80 She pointed out that even if an employee's sick leave was supported by medical certificates it may still fall into the category of unacceptable sick leave record. She pointed out that the policy requires managers to monitor sick leave taking by staff members within their work units. 81 One of the functions Ms Hellams performed was the signing off on briefings prepared for the Chief Executive. On 3 July 2009, she signed off on a briefing prepared by Ms Meharg in which the latter sought that if the Chief Executive approved her recommendation for the termination of employment of the Applicant due to her unreliable attendance, then Mr Clout was required to sign the letter to Ms Pili asking her to show cause as to why her employment should not be terminated. Mr Clout approved of the recommendation and signed the letter on 7 August 2009 seeking a response from the Applicant within seven days. 82 That letter was approved by a number of management staff prior to The Chief Executive Officer signing off on it. 83 Ms Pili responded on 17 August 2009 by email advising that she had not received the letter by mail but had received an emailed copy on 11 August. Ms Pili complained to Mr Clout about the manner in which she had been stood down which she found "extremely distressing". She pointed out that she suffered from asthma and had asked for a risk assessment to be done of her workplace/department and, to her knowledge, that had not been done. She added that she had suffered "much anguish and stress" because her grievance in relation to Ms Nutan Sharma had taken an "excessive amount of time" to be dealt with by management. She alleged that it had exacerbated her illness and led to her having to seek medical assistance for hypertension. She advised that she had suffered an allergic reaction to the medication she had been prescribed for that condition. She was also prescribed medication for depression and her ability "to work cohesively within the workplace" was affected by her need to adjust to that medication over time. She pointed out that all her sick leave had been backed up by medical certificates and that she had provided Mr Owers with a certificate indicating that she was fit to resume full time duties from 1 August 2009. She advised that, in her opinion, she had been targeted since lodging a promotion appeal with GREAT. She appealed to Mr Clout to consider her position as sole breadwinner in her family and the fact that she had a mortgage to contend with. She indicated a preparedness to put the past behind her and "move forward in a positive manner" but asked that the workplace undergo a risk assessment. She said she was prepared to seek assistance of a counsellor. In conclusion, she offered with meet with Mr Clout or his representative and a union official to set out targets/strategies in order to manage any future sick leave. 84 Ms Hellams gave evidence that Ms Meharg had prepared a further briefing on 27 August 2009 in which she pointed out that the original letter of 7 August was forwarded to Ms Pili by express post and was delivered via Nepean Post Office on 17 August 2009. She had checked Mr Owers' notes and determined that, at the time he stood down the Applicant, the discussions were held in private with the only additional person in attendance being the Billing Services Manager. It was at the request of the Applicant that an HSU representative joined the meeting. Ms Kusum Lai had advised the Applicant to comply with the direction and to "go home". In relation to Ms Sharma, it was noted that the grievance had been resolved and had included two appeals requested by the applicant and one by the Manager, Professional Practice Unit, in January 2009 despite the fact that Ms Pili and Ms Sharma have not worked together since 14 July 2008. Ms Meharg also noted in the briefing that Mr Owers had acted on the request for cleaning of the Applicant's work area in that he had contacted Randwick Campus Domestic Services and recorded that the work needed to get done. However, it was noted that cleaning of clinical areas were given priority over areas included in the usual project cleaning plan. Finally, Ms Meharg noted that Ms Pili's unsatisfactory attendance had spanned a period of two years during which she had produced two medical certificates which certified her as fit to resume full-time duties - 24 February 2009 and 1 August 2009. In conclusion, Ms Meharg recommended the termination of the Applicant's employment and appended a letter addressed to the Applicant advising her of that decision for his signature. The internal briefing document was assented to by seven senior staff members, including Ms Hellams, prior to being forwarded to the Chief Executive for his approval. 85 Ms Hellams stated that she had reviewed the briefing, its attachments and the email response from the Applicant dated 17 August 2009. She stated that she did not consider that the email response justified the Applicant's continued employment given her excessive level of sick leave, whether supported by medical certificates or not, particularly in view of the fact that her treating doctor had certified her fit for work. Ms Hellams pointed out that the Respondent's payroll records indicated that the average number of sick days taken per person per annum was 7 days. That figure was 7.5 days in relation to Corporate Services staff. 86 Ms Hellams was aware that contact was made by Mr Owers and others with the domestic service in relation to improving the cleaning of the area in Randwick campus in order to address the dust issues and complaints made by Ms Pili. When it was raised by Ms Pili in response to the letter of intention to terminate, no workplace assessment was undertaken as she was not at the workplace. 87 Ms Hellams agreed that neither of the briefs referred to the fact that Ms Pili had given 21 years of service to the Respondent nor that her work performance/ competence had been unchallenged throughout that period. As far as she was concerned, those issues did not feature in her discussions with Ms Meharg about the Applicant. She confirmed that the sole criteria for the termination of Ms Pili's employment was the number of occurrences of sick leave and the general poor attendance associated with the sick leave. 88 Ms Hellams admitted that, at the relevant time, she was not aware that as an ex public servant, Ms Pili was entitled to three weeks sick leave under a transition arrangement. In relation to her sick leave entitlements, Ms Hellams responded that it would not have made any difference to her if she had known that Ms Pili was a transferred employee with an entitlement to three weeks sick leave per annum because, "her level of sick leave was still unacceptable even if she was a public servant". 89 She was aware that Ms Pili had an available balance of approximately three weeks sick leave at the time of her dismissal. She was also aware that all the sick leave taken by Ms Pili during the relevant period of 2007-2009 was supported by a medical certificate and that was included in the brief to the decision makers. She was also aware that Ms Pili had been paid for all that leave. She acknowledged that Ms Pili met the criteria for being paid sick leave. However, she pointed out that staff are not entitled to take all their sick leave. It is there as an insurance for when they are sick. 90 Ms Hellams pointed out that Ms Pili had taken: 23 sick days on 14 separate occasions in the 12 months period to 30 June 2008; 42 sick days on 20 separate occasions in the 12 months period to 30 June 2009; 91 Ms Hellams agreed that the decision makers made their decision as to whether to approve the action in the letter based on the material contained in the letter. She personally had not spoken to Mr Owers, the actual supervising manager of Ms Pili at the time, about the contents of the letter. She had read the brief and had also checked with Ms Meharg before signing off on the letter. 92 Ms Hellams pointed out that sick leave management was governed by the Sick Leave Management - Policy, Procedures and Eligibility [PD2006_063], the aim of which was to support employees wherever possible in order to support attendance and reduce sick leave absences throughout the organisation. Section 2.11 of the Policy Directive states: Employers must have procedures in place to actively manage cases of long-term illness/injury and serious incapacity. These should detail options for support such as the Employee Assistance Program, and, where appropriate, options for a medical assessment and a return-to-work program. Long-term absences and serious incapacity of staff have a negative effect not only on the staff member concerned, but also on management and work colleagues, who must ensure that health services continue to be provided despite reduced resources. It is therefore in the best interest of all parties that issues related to such absences are resolved in a reasonable time frame. Research suggests that, as with workplace injury, the longer a staff member remains off work, the less likely is his/her return. It is important that regular contact is maintained with the staff member, and that points are set for reviewing the staff member's capability of returning to pre-illness/injury duties, and for discussing with the staff member what action will be taken next..... Staff should also be provided with other support options, such as the organisation's Employee Assistance Program. 93 During re-examination, Ms Hellams pointed out that the Sick Leave policy related to all sick leave - whether or not it was supported by medical certificates. She referred to the Policy in order to describe the concept of entitlement as opposed to eligibility: 2.1 Employers are to develop and implement strategies an procedures for the effective and sensitive management of sick leave absences by staff. The written procedures should reflect that staff are eligible for sick leave under certain conditions as defined in Part 3, sick leave eligibility, rather than automatically entitled to it. 94 Ms Hellams pointed out that there were a number of reasons why the Respondent focused on managing sick leave. Principally, it was to ensure that staff attended for work so that the work and the service that the Respondent was required to deliver can be delivered; Secondly, continued absenteeism affected the remaining workers and imposed increased workload on them; Thirdly, certain staff cannot be easily replaced by agency staff; and fourthly, New South Wales Treasury required the Respondent to monitor and manage sick leave to reduce those levels as part of the government's overall savings strategies. 95 Ms Hellams pointed out that, given her sick leave record and the number and pattern of absences due to sick leave, the Applicant fell within the category of an employee who did not appear to be capable of carrying out the duties of her position. The usual practice of the Respondent in such situations was to contact the employee's treating doctor and seek an assessment of that employee's fitness for work. The Respondent believed that the employee's treating doctor was best placed to make an assessment as to an appropriate range of hours, activities that may be undertaken, any necessary equipment or modifications to the working environment, and the working environment generally as they were aware of the patient's medical history, in that they may be working to a particular management plan to assist in managing that patient's illness/injury. 96 In line with that practice, an approach was made to Ms Pili's treating doctor in February 2009 and the Applicant was certified as fit for work. Ms Hellams pointed out that despite receiving such certification, Ms Pili had further sick leave absences and it was therefore appropriate, in her opinion, for Ms Meharg to seek the consent of the Applicant for the Respondent to contact her doctor directly to discuss her ability to perform her job and any modifications that may be necessary. She further pointed out that absent such consent from the Applicant and in light of further sick leave absences, it was totally appropriate for the Respondent to terminate Ms Pili's employment. 97 She stated that another factor she had taken into account in reaching an ultimate conclusion that Ms Pili's employment should be terminated was the fact that her treating doctor had approved her as fit to perform the duties associated with her position but she continued to take sick leave, the amount and the occurrences of which were unsatisfactory and there was no improvement. Attempts were made to explore any other options that would improve her performance at work, however, the Applicant failed to allow the Respondent to contact her treating doctor and, in the absence of any medical advice, it was assumed that no options were available to the Respondent. She acknowledged that the letter advising the Applicant of the intention to dismiss her did not advise her that it was because of her failure to provide consent to contact Dr Rizk. Obviously, Ms Pili did not reply to that aspect of the reason for dismissal in her response. SUBMISSIONS 98 It was pointed out on behalf of the Applicant that she had 21 years and 9 months service at the time her employment was terminated. As an ex public servant, she had an entitlement to three weeks' sick leave per annum - both contractually and by virtue of Clause 6, Schedule 3 of the Health Administration Act 1982 (NSW). It was pointed out that the Applicant was never counselled in relation to the performance of her duties. Her employment was terminated "on the grounds that you are unable to fulfil your contract of employment due to unsatisfactory sick leave record" although all of the sick leave she had taken was approved, paid and within the entitlement range. 99 It was contended that whilst the causes for her illness may be debatable, they were irrelevant. It was submitted that it was unfair for an employee to be terminated for utilising an entitlement. It was argued that unless there was a positive finding that the dismissal was unfair in these circumstances, then there was a risk that employers would consider it acceptable to terminate employees for utilising their entitlements. 100 It was submitted that the Respondent had misconstrued the principle of frustration of contract thereby rendering the dismissal harsh, unreasonable and unjust. In that regard, the Applicant relied on the decision of his honour, Grayson DP in CFMEU v Northern Sydney Area Health Service Asset Services Group [2004] NSWIRComm 251: 14 I do not consider that there were sufficient grounds for the employer to conclude that the contract of employment had been frustrated at the date of the dismissal and I am of the view that such a misconception on the part of the respondent of itself renders the dismissal harsh, unreasonable and unjust. 101 His Honour, in arriving at that conclusion, had particularly noted the judgement of Wootten J in Finch v Sayers (1976) 2 NSWLR 540: The review of the authorities shows that, before one can answer the question of whether a contract of employment is frustrated, one must look at the whole of the terms of the contract, express and implied, and at all surrounding circumstances, including the provisions made for the sickness and retirement of the employee, and the general practice of the particular employer, or in similar employment. When one does this, it may well be that, in many areas of employment in contemporary society, particularly where one is dealing with an indefinitely continuing relationship, and not the performance of a specific task, there is relatively little room for the operation of the doctrine of frustration due to illness. That judgment was cited with approval by a Full Bench of the Commission in Court Session in Hilton Hotels of Australia Ltd v Pasovska (2003) 122 IR 428. 102 It was concluded that Finch establishes that an employer is required to consider the whole of the terms of the contract. It was obvious that in Ms Pili's case, the report went up a number of levels until it got to the Chief Executive Officer who was not aware of the provisions of her contract of employment. One of the terms of that contract was the entitlement to three weeks' sick leave per annum subject to various eligibility requirements. The Commission was reminded that there was no evidence that she was not entitled to the leave that she took or that it was not in accordance with the eligibility criteria or that it was for some spurious purpose. In other words, she had not exceeded the bounds of her contract of employment. An analogy was drawn with someone taking an entitlement to annual leave. 103 It was also submitted that the evidence of Colin Owers confirmed that the termination was harsh in that it was process driven. Although it was conceded on behalf of the Applicant that there were good and cogent reasons why the Respondent's policy was in place, it was pointed out that no consideration was given to the Applicant's attributes such as her age, length of service, good performance record and no issue as to the bona fides of the sick leave she had taken. The process went through a number of steps so that it was outside of the actual people who had some understanding of background of the Applicant. It went to people who did not know the Applicant, had no knowledge of her individual circumstances or the terms of her contract of employment. 104 It was further submitted that the termination was procedurally unfair in that Ms Pili was not told that another reason for her termination was her failure to provide the Respondent with the authority to speak to her treating doctor and therefore she never had an opportunity to respond to the allegation that she refused to provide such permission. 105 It was submitted on behalf of the Respondent that the matter turned on the characterisation of sick leave. The Applicant's case, at its highest, turned on the fact that if Ms Pili was on approved sick leave then there was no role for an employer to intervene in the management of the taking of sick leave. The Respondent, for its part, characterised it as an award entitlement and it was therefore entirely appropriate that an employer take steps to monitor its utilisation, whether or not it is supported by medical certificates. 106 It was submitted that the employer has an obligation to manage sick leave in the interests of both the wellbeing of the employee and the interests of the organisation. 107 It was also submitted that part of the management of the sick leave involved engaging with the employee to explore reasons for the absences, including seeking information from their treating doctors, in order to determine the reason(s) for the excessive sick leave. 108 It was further submitted that the complete failure of the Applicant to engage with the Respondent to try and manage that sick leave process was a valid reason to terminate her employment. It was pointed out that the termination was not a summary dismissal. 109 The Respondent denied that there was any procedural unfairness in the treatment of the Applicant. It was pointed out that the Applicant confirmed that she was aware of the sick leave management policy; that she received all of the letters, bar the last letter, that had been sent to her by the Respondent setting out clearly what the concerns of the Service were; that she had union assistance and had actively sought the assistance of the HSU on-site representative; that she was invited to meetings which she declined to attend; that she was given an opportunity to show cause why her employment should not be terminated; that she responded with the assistance of the union and that she was on notice that the reason for her possible termination was both the pattern and extent of her absences and her failure to provide updated advice from her treating doctor as to her fitness to perform her duties. 110 The Respondent pointed out that the Applicant had consulted Dr Rizk for a number of years and, in particular, in relation to the two issues that the Applicant said made it difficult for her to attend for work - her asthma and the stress she was experiencing. Yet, despite the fact that Dr Rizk certified the Applicant in early 2009 as fit to undertake the duties set out in her job description, Ms Pili had a number of absences. 111 It was pointed out that the Respondent's sick leave policy recognised the two competing aims of the sick leave policy - it created a balance between the organisation's requirements and the rights of its employees. The policy applied to all employees irrespective of whether the sick leave was approved, authorised and supported by medical certificates or not as the employer needed to get to the bottom of why someone was taking a number of occasions of sick leave. Mr Owers was obliged, pursuant to that policy, to monitor Ms Pili's sick leave record and manage it. 112 It was pointed out that Ms Hellams was quite correct when, during cross-examination, she pointed out that what is an acceptable level of sick leave would have to be determined on a case by case basis as someone suffering from a chronic health condition would require different considerations from someone who does not. 113 The Commission was taken through the sick leave taken by Ms Pili during the period from January 2009 to June 2009 - a total of 23 days It was pointed out that sick leave was taken in every month and the longest unbroken period worked without any sick leave was three weeks in November 2008. 114 It was noted that the Applicant took sick leave in the last week of the month on seven occasions in the 12 months leading up to her termination. It was pointed out that it was not disputed that an essential aspect of the Applicant's work included end of month function. 115 It was pointed out that, on the Applicant's analysis, the Respondent would never get to a point where it would be able to discuss her attendance with her bearing in mind she had an accrued entitlement up her sleeve, she was entitled to three weeks' sick leave per annum and an additional option of being able to request special sick leave because she was a transferred employee. It was argued that the submission simply cannot be right. 116 The analogy drawn by the Applicant with respect to annual leave and sick leave was disputed by the Respondent. It was pointed out that untaken annual leave will be paid out on termination whereas sick leave was more in the form of an insurance policy to be used up only when one was sick and therefore an Employer has every right to take action in respect of sick leave absences. 117 The Commission's attention was drawn to the fact that not all of the Applicant's absences related to her asthma or to stress. There were absences related to dental/eye care appointments for herself and her son, physiotherapy appointments and so on. The Applicant's treating doctor did not provide the Respondent on any of the certificates with any guide as to how it could accommodate her asthma or stress. 118 The Respondent submitted that the first letter provided to the Applicant which first placed sick leave on the radar was dated 30 March 2006. It was pointed out that the letter pre-dated her grievance, her workers' compensation claim and any complaint about dust in the Billing Services Centre. The second letter provided to the Applicant was dated 31 August 2007 and it referred her to the Employee Assistance Program which she said she utilised on two occasions. It was impossible to believe that the Applicant was not aware, by the time she received a third letter, dated 12 February 2008, that her sick leave was going to be monitored irrespective of the provision of medical certificates. When Mr Owers took over, it was available to him to progress the matter to the next step as there had not been any improvement demonstrated in relation to her attendance. Nevertheless, he chose to provide her with a fourth letter, dated .........., similar in substance to the previous letter. A fifth letter was provided to the Applicant. At that point the issue had gone beyond Mr Owers' sphere of authority. The Chief Financial Officer, Peter Hudnall, sought an assessment by Dr Rizk of the Applicant against the position description and job demands checklist and a comment as to her capacity. The ensuing certificate from Dr Rizk certified her as fit to undertake her role. 119 The Respondent submitted that the evidence indicated that the Respondent attempted to organise a meeting with the Applicant in February 2009 and Ms Pili must have been sufficiently concerned about it because she contacted her union for assistance. Although the meeting was reschedule at the request of the HSU, the union was unable to attend the next scheduled meeting and, in fact, a meeting never took place despite the Applicant having ample opportunity to obtain advice and assistance from her union and reschedule yet another meeting. 120 A sixth letter was provided to the Applicant on about 2 April 2009. The Commission was reminded that Ms Pili gave evidence that when she received those letters she was stressed and upset and did not pay much attention to their content. Yet, she gave evidence that she disagreed with the leave record set out in the letter and telephoned Mr Owers to correct what she perceived to be an error in that record. She obviously recognised Mr Owers as being the appropriate person to call in that regard but did not take the opportunity to talk to him about the suggested trial reduction in hours or an extended period of approved leave. 121 It was submitted that the actions of the Applicant at the meeting on 5 June 2009 highlighted the frustration experienced by the Respondent in dealing with the Applicant. Irrespective of whether she advised "You should talk to my lawyer", or on Mr Owers version as recorded in his contemporaneous note "I've got a lawyer now", the Respondent was still left with the unenviable position of being unable to manage an existing and ongoing employment relationship. 122 At the conclusion of that meeting it was quite clear that the Applicant understood that the Respondent not only wanted to speak to Dr Rizk directly to try and work out what strategies could be implemented to assist and support the Applicant's attendance at work but was also proposing to her that she consider working reduced hours. The Respondent suggested that it was disingenuous to suggest that just because the Applicant did not expressly refuse to allow the Respondent to contact her treating doctor that it was equivalent to consenting. Ms Pili was supported at the meeting by Ms Kusum Lal. 123 A seventh letter was forwarded to the Applicant. The Respondent argued that the Applicant's evidence that she did not receive it was not to be believed as she had complied with its contents and proceeded soon thereafter to her doctor and obtained certification that she was fit for work. 124 It was pointed out that the Applicant was supported by the Union, Kusum Lal, her treating doctor and her Workers' Compensation lawyer. In addition, she had been offered and hade made use of the Employee Assistance Program yet she would not talk to Mr Owers or anyone from the Human Resources Department about assistance with her sick leave record. 125 The Respondent submitted that the Applicant had agreed that in her absence Mr Owers had to perform her tasks which were specific in nature although, as Manager of that Department, his own tasks were quite substantial. It was therefore quite unreasonable to expect him to pick up the burden of completing her tasks at short notice. As the sick leave she took was unplanned, sporadic and difficult to predict, it made her ongoing situation unsustainable and it was therefore completely unreasonable to expect the Respondent to try and manage it. The Respondent reached the end of the line in June 2009. 126 It was inadequate to provide another similar certificate from Dr Rizk certifying her as fit to undertake the work. The Respondent had made it clear to her that it wanted to talk to her doctor. In fact her total response to the show cause letter had been inadequate. She suggested to the Respondent matters which the Respondent had proposed to her at the meeting in February. 127 It was pointed out that the sick leave policy had an overarching aim to minimise the negative effects of sick leave not only for the individual but also for the organisation by active management. 128 In conclusion, the Respondent submitted that there was a valid reason to terminate the Applicant's employment when one considers the nature of her role, the essential criteria she had to meet, her attendance pattern (both in the total number of days absent and the fact that many of them fell in the last week of the month), her overall attitude and her sustained unpreparedness to engage and cooperate with the Service in trying to manage her sick leave. REMEDY 129 The Applicant was seeking the primary remedy of reinstatement to her former position and an order that service to be deemed to be continuous (New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89. The Commission was reminded that it was established principle that it is only where it is impracticable to reinstate an application that other remedies should be considered (Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 at [15]). 130 It was pointed out that there was no evidence available to suggest that reinstatement of the Applicant would be impracticable or that there has been an irretrievable breakdown in trust and confidence between the Applicant and the Respondent. It was pointed out that even if the position she previously held has been filled, an organisation the size of the Respondent would be able to find her another suitable position. The Respondent had an obligation to provide a safe workplace and that did not occur. There was no evidence before the Commission that her asthma had troubled her prior to the period of time in question. 131 It was submitted that, in the alternative, if the Commission was to find that reinstatement was not practicable, then maximum compensation should be awarded given her length of service, her unblemished performance record and the fact that she was dismissed for merely utilising her sick leave entitlements. 132 It was submitted on behalf of the Respondent that, on the Applicant's own admission, reinstatement was not an option. She had provided evidence that she felt stressed in the work environment which was dusty, and she had some dissatisfaction with the senior management in the area following her grievances. 133 It was also submitted that her failure to interact with the Respondent demonstrated a complete breakdown in the trust and confidence necessary between an Employer and its employees. It was pointed out that her refusal to talk to the Respondent about managing her sick leave was a demonstration of that breakdown. 134 The Respondent pointed out that reemployment would not be an easy feat as the Applicant's role was that of a specific billing officer. 135 In relation to compensation, the Respondent submitted that if there was to be an award of compensation, then it should be at the lower end of the scale. It was pointed out that the evidence demonstrated that there were many ways Mr Pili's employment could have continued had she been prepared to engage in discussions with the Respondent to discuss options. CONSIDERATION 136 It was not disputed that: # the Applicant had given 21 years and 9 months' service to the Respondent; # there were no performance criticisms of the Applicant when she attended for work. The only issue was that she was absent so often that it made it very difficult for the Respondent to continue with her performance. # the Applicant was entitled to three weeks' sick leave per annum - 15 episodes although each episode could amount to one or more days; and # the Applicant's sick leave absences were supported by certificates, were approved, were paid and were within her accrual balance. 137 Nevertheless, I do not accept the analogy made between an entitlement to sick leave and an entitlement to annual leave. I also do not accept that just because an employee is entitled to a certain amount of sick leave they are entitled to take that leave without intervention by the Respondent if it is affecting the workplace. If one was to accept that analysis, then providing the Applicant kept within her entitlement, the Respondent would never be able to speak to her about her attendance record despite the statistics that were tendered to the Commission. 138 I accept the reasons provided by Ms Hellams for the focus the Respondent places on managing sick leave within the Service: # the Service needs to ensure that work is delivered in accordance with deadlines - the Applicant had to meet weekly and monthly schedules; # Absenteeism, in this instance, was affecting the work in that unscheduled leave meant that Mr Owers had to take on the Applicant's work in addition to his own in order to meet weekly and end of month functions. The statistics indicated that the Applicant took 23 sick days in the six months to June 2009 and in the last week of the month on seven occasions in the 12 months leading up to her termination; # the Applicant could not be readily replaced by Agency staff during unscheduled absences; and # It was a requirement of New South Wales Treasury that the Respondent monitor and manage sick leave to reduce it as part of the government's overall savings strategies. 139 In addition, I accept the submission on behalf of the Respondent that the Respondent needed to manage sick leave in the interests of both the wellbeing of the employee and the interests of the organisation. I also accept that an acceptable level of sick leave would have to be determined on a case by case basis depending on the health condition of individual employees. 140 Sick leave was managed in accordance with the policy issued by the Department of Health. Any employee who has taken in excess of eight sick episodes per annum is spoken to and issued with a formal letter requiring the production of a medical certificate for future sick leave absences. That employee's sick leave is monitored and if there are in excess of three episodes of sick leave within the next three or four months, then a second letter is issued to that employee. In relation to Ms Pili, the process was commenced by Mr Nayla and continued by Mr Ower upon his promotion to that role. 141 Ms Pili admitted that she had taken more sick leave over the last couple of years than she had in the previous 16-17 years of employment with the Service because she had not felt physically capable of attending work. There were varying reasons for her absences. In addition to common reasons, the anti-depressants she had been prescribed during 2008 made her feel drowsy at times and unwell at other times. She became more accustomed to them during 2009. Another reason was that she was suffering from work-related stress. 142 It is noted, however, that the problems associated with the Applicant's sick leave record preceded the GREAT appeal. She received a letter from Mario Nayna dated 30 March 2006 advising that a requirement to produce a medical certificate for all future sick leave absences would be imposed unless there was an immediate and sustained improvement in her sick leave record as she had been absent on sick leave on seven separate occasions during the 12-month period ending on 27 March 2006. She was invited to discuss the matter with him or with a Human Resources Consultant if her medical history involved recurring illnesses of short durations. 143 She received another letter from Mr Nayna dated 31 August 2007 inviting her to attend a meeting with her supervisor on 4 September 2007 to discuss her attendance and sick leave in accordance with the Sick Leave Management Policy PD 2006. She was invited to take a support person with her to the meeting. 144 It appears that there was no improvement in her attendance as a further letter was forwarded to her by Mr Nayna dated 4 September 2007 in which she was advised, once again, that a requirement to produce a medical certificate for all future sick leave absences would be imposed unless there was an immediate and sustained improvement in her unsatisfactory sick leave record as she had been absent on sick leave on eight or more separate occasions during the 12-month period ending on 31 July 2007. She was put on notice that her sick leave will continue to be monitored over the next six months. She was reminded of the Sick Leave Policy and its implications for poor attendance. Once again, she was invited to discuss the matter with him or with a Human Resources Consultant if her medical history involved recurring illnesses of short durations. Ms Pili acknowledged receipt of that letter on the same date. 145 On 12 February 2008, Mr Nayna wrote to the Applicant pointing out that, in view of the fact that she has had two further occasions of sick leave, henceforth and until further review in six months, she was required to produce a medical certificate for all further absences on sick leave. She was warned that unsatisfactory sick leave was considered to be a serious matter and disciplinary action would be considered, "including dismissal, should there not be an immediate and sustained improvement". The Applicant was reminded of the availability of the free and confidential service provided by the Respondent's Employee Assistance Programme. 146 Ms Pili acknowledged receipt of that letter on 18 February 2008. 147 On 5 November 2008, Mr Owers wrote to the Applicant pointing out that she had taken a further nine occasions of sick leave since 12 February and therefore the requirement to produce a medical certificate for each absence on sick leave would be extended for a further six months at which time it would, once again, be reviewed. Once again she was reminded of the consequences of maintaining an unsatisfactory sick leave record and the availability of the Employee Assistance Programme. Ms Pili acknowledged receipt of that letter on 12 November 2008. 148 Mr Owers wrote to Ms Pili on 12 November 2009 pointing out that there had been a further 20 occasions of sick leave all of which had been supported by medical certificates. She was required to produce, within 10 days, advice from her GP as to her fitness to perform her role. To that end, she was provided with a Position Description and Job Demands check list to assist her GP in assessing her capacity to perform in that role. She was, once again, reminded of the existence of an Employee Assistance Programme. There was no acknowledgement by the Applicant of receipt of that letter. Dr Rizk issued a medical certificate dated 21 January 2009 certifying the Applicant's fitness "to perform the job description". That certificate was provided to the Respondent on 30 January 2009. 149 The Chief Financial Officer, Mr Peter Hudnall, wrote to the Applicant in April 2009 pointing out that her attendance record revealed that in the 12 month period ending 28 January 2009, she had been absent on 24 occasions of sick leave totalling 44 days in addition to four unscheduled absences including FACS Leave and Annual Leave granted without notice. During those 12 months, she had attended only one month without an unscheduled absence. Mr Hudnall confirmed that the Applicant had declined invitations to attend meetings on 10 and 17 February 2009 to discuss the issue. He pointed out that the options they had intended to discuss with her at the meeting would possibly have included reducing her hours for a trial period or a period of approved leave. In view of her refusal to attend a meeting with management and in view of the fact that her doctor had certified her as fit to perform her normal duties, it was pointed out to her that had attendance would henceforth be reviewed monthly. She was warned that a failure to improve would result in a review of her continued employment. There was no acknowledgement by the Applicant of receipt of that letter. 150 In correspondence to the Applicant dated 17 June 2009, Ms Meharg advised the Applicant that despite being certified on 29 January 2009 as fit to perform her role and despite the absence of any health issues on the medical certificate, she had been absent on eight occasions of sick leave totalling 167.75 hours. She reminded Ms Pili that she had not complied with the request to provide, by 9 June 2009 written permission to write to her doctor. She was asked to obtain and submit, by 26 June 2009, updated advice from her doctor as to her fitness to perform her role. 151 The fact that the Respondent's witnesses were not aware of the fact that the Applicant was entitled to 15 days' sick leave per annum is not fatal to the Respondent's case in the present circumstances. Firstly, the witnesses were aware that she still had accrued sick leave at the time of her dismissal and, secondly, it was not argued that the reasons for her absences were spurious. Her level of absences were such that the Respondent needed to intervene in order to determine how best to work around her medical condition. 152 That was the reason for her dismissal. Had the Applicant provided an authority for the Respondent to speak to her treating doctor, it is questionable whether it would have made any difference particularly when the treating doctor had already certified her, as fit to undertake her full duties as at 1 August 2009. What was required was for the Applicant to discuss with the Respondent what the latter could have done to assist her. A couple of options were provided by the Respondent - working reduced hours and leave of absence for a period time. 153 Ms Pili advised the Respondent that she had a Solicitor or they could talk to her Solicitor. There is no evidence before the Commission that the details of the Solicitor were provided to the Respondent or the Solicitor contacted the Respondent at any stage and, in particular, when the Applicant was requested to show cause why she should not be dismissed. There is no evidence before the Commission that the Solicitor was engaged for any other purpose save the failed Workers' Compensation claim. 154 Ms Pili also sought the assistance of the Union in relation to the mounting letters sent to her regarding her unscheduled absences. The Respondent arranged two meetings with the Applicant - both of which were cancelled at the request of the Union or the Applicant or both. No attempt was made by the Applicant or the Union to reschedule the meeting. 155 Ms Pili received numerous correspondence from the Respondent in regard to her sick leave. She was reminded about the Employee Assistance Program on each occasion. She utilised the Program twice. 156 During cross-examination, Ms Pili made numerous references to the reactions she had to her medication for various ailments. The reactions she had allegedly affected her ability to respond to the letters she had received regarding her sick leave. Yet there was absolutely no evidence before the Commission confirming any of the ailments she suffered at the relevant time. 157 The Applicant gave evidence that she began to experience bullying and harassment from her fellow employees following her successful appeal to GREAT. The GREAT decision was issued on 17 March 2007. The only two incidents the Applicant was able to point to were with Ms Sharma, an alleged friend of Mrs Del Castillo who had initially obtained the position. The first incident occurred on 1 April 2008 - 13 months' later; The second incident occurred on 8 April 2008 - also 13 months' later. The latter occurred outside of work and the Applicant had been advised to lay charges with the Police as to the alleged push at Central Railway Station. There was nothing before the Commission to indicate that charges were laid by the Applicant. In any event, the Applicant did not log her complaints until 5 June 2008 following discussions with Mr Ower and, additionally, Ms Sharma left the Department on 14 July 2008. Her departure did not seem to make a difference to Ms Pili's sick leave record. 158 Ms Pili stated that the open window did not become an issue until she filed her appeal to GREAT. Her appeal was heard on 1 March and was determined on 13 March 2007. The medical certificate from Dr Rizk relating to the window was dated 12 January 2007. It certified that the Applicant was "suffering from medical review. Also has asthma – required natural ventilation through window close by". The evidence indicates that Mario Nayna wrote to the Applicant on 15 January 2007 advising her that following a conversation earlier that afternoon when she declined the alternative seating arrangement offered to her, she was being requested to "kindly leave the window closed as it will interfere with the air conditioning". In other words, the issue with the window was not brought about because of her appeal. There was no evidence that the Applicant had refuted receipt of that correspondence or its contents. 159 Having considered all of the evidence before the Commission, I consider that there has not been any procedural unfairness on the part of the Respondent. In all of the circumstances, there was a valid reason to terminate the Applicant's employment. These proceedings are concluded by dismissal of the claim. I Tabbaa Commissioner 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.