41 On 2 June 2009 Ms Mills sent a detailed letter to Mr Markovski advising inter alia the following (Exhibit 5 - JM 15):
· That as his workers compensation claim had been declined by the insurer Employer's Mutual with effect from 17 December 2008, his manager could no longer offer unlimited access to suitable duties and/or reduced hours of work.
· His pre-injury position was still available to him i.e. day shift during the week for a minimum period of six months.
· To assist his return to the pre-injury position it was proposed that he be offered a new one month "Return to Work Programme" monitored by the Return to Work Coordinator.
· He was required to have his treating medical practitioner clarify exactly what "avoid stress at work" involved.
· Once Ms Mills had received this letter of clarification she would advise the Return to Work Coordinator to draw up a plan to be discussed with Mr Markovski and his treating medical practitioner.
· SSWAHS would only be able to hold open his position for a limited period of time and if he was unable to return to his pre-injury duties and hours he would be required to take his own leave entitlements.
· He was to undertake the full duties of the position one month after the programme commenced and would be required to provide medical certification as to his fitness to return to pre-injury duties prior to that day with a copy supplied to Mr Beard and HR Department,
· Further medical assessment might be required following his return to pre-injury duties and he would be advised in advance of such requirement.
42 Ms Mills' letter further advised Mr Markovski that "should you not return to pre-injury duties at the completion of one month an assessment of your continuing employment with Royal Prince Alfred will be made". It was indicated that should he wish to discuss the issue with Ms Mills to telephone her (phone number provided).
43 Ms Mills received no reply to the letter of the 2 June, however Mr Markovski forwarded another medical certificate stating he was "to avoid stress at work". On 29 June 2009, Ms Mills sent another letter to Mr Markovski seeking that he have his medical practitioner clarify what "avoid stress at work involves" and reiterating the previous requests outlined in the 2 June letter (Exhibit 5 - JM 16).
44 Ms Mills received no reply to her letter of 29 June from Mr Markovski and on 6 August 2009 she sent another letter to Mr Markovski requesting that he have his medical practitioner clarify what "avoid stress at work" involved. She also requested that he contact her to enable a meeting to be arranged with his manager, Mr Beard, the Return to Work Coordinator and Ms Mills. He was advised that he was able to bring a support person to the meeting. He was asked to contact Ms Mills by phone (with her direct work number provided) by close of business on 14 August 2008 and that if she was unavailable, to leave a message on her voicemail with a contact number so his call could be returned. He was reminded that SSWAHS could only hold his position open for a limited period of time and that should he not return to pre-injury duties an assessment of his continuing employment would be made. (Exhibit 5 - JM 17).
45 Mr Markovski deposed that he did phone Ms Mills on the number provided, it went through to a voice message and he left a message for her that he had rung and asked her to call him. At no time was his call returned.
46 Ms Mills deposed that at no time did Mr Markovski contact her or leave any message as she had requested him to do in her letter of the 6 August.
47 Mr Markovski maintained that he did contact Ms Mills by the telephone and left a message but was not contacted in return. This is disputed by SSWAHS.
48 On 7 September 2009, Ms Mills sent a further letter to Mr Markovski referring to her earlier letters of the 2 and 29 June and 6 August, repeating the requests made in those letters and again requesting that he contact her by phone (phone number supplied), this time by close of business Friday, 18 September 2009, to enable a return to work meeting to be arranged. He was again advised that his position could only be held open for a limited period of time. He was further advised that "should you not contact me; an assessment of your continuing employment with Royal Prince Alfred will be made" (emphasis added) (Exhibit 5 - JM18).
49 Ms Mills deposed that she received no reply or contact from Mr Markovski to her letter of 7 September 2009.
50 On the 23 September 2008, Ms Mills wrote to Mr Markovski, referring to her earlier four letters (with copies attached) and requested that he provide to her reasons, in writing, by close of business 7 October 2009, as to why she should not recommend termination of his employment. He was also advised that he had failed to provide the clarification sought from his medical practitioner as to what "avoid stress at work" involves, clarification that was necessary to assist in the implementation of a Return to Work Programme. He was further advised that "If you do not abide by this direction by the above date I will pursue your termination of employment" (Exhibit 5 - JM 19)
51 Mr Markovski deposed that he went to his medical practitioner, showed him what was asked for, and asked him if he would write a report. The Doctor gave him a report dated 28 September 2008, which he faxed to the employer on the 2 October 2009. He received no further contact from the employer until the letter of termination of 28 October 2009.
52 Ms Mills deposed that as Mr Markovski did not comply with the letter of 23 September 2009 and provide her reasons in writing why she should not terminate his employment; she received no contact from him whatsoever; he did not co-operate with any possible return to work plan and had been absent from work since 2 October 2008, she therefore recommended to the Chief Executive of SSWAHS that his employment be terminated.
53 On 28 October 2009, the Chief Executive, SSWAHS sent a letter to Mr Markovski informing him that his employment was terminated with one weeks pay in lieu of notice. The letter indicated that he had been absent from the workplace since 2 October 2008 and that the medical certificate he last supplied stated that he remained fit for suitable duties only. Since his workers compensation had been declined with effect from 17 December 2008, he had been offered numerous opportunities to return to work via a Return to Work Plan but had not chosen to cooperate with this process. He had also not responded to the show cause letter as required by 7 October 2009 (Exhibit 5 - JM 20).
54 On 29 November 2009 Mr Michael Williamson, General Secretary, HSU wrote to Mr Markovski in reply to correspondence from him concerning his termination (Exhibit 1). The letter advised as follows:
.... Ms Cowdrey confirms that you were in contact with her on 5 November 2009 and that upon checking your membership found you were unfinancial and that she would seek advice on the matter.
I confirm that Mr Hayes did contact you and provided the following advice. That upon checking your membership it was found that you were purged from the membership records due to being unfinancial. I note that the last payment prior to your termination was made in January 2009.
As a consequence of your financial status the Union wrote to you on several occasions during the period of March to August advising that you were unfinancial. However we did not receive a reply to said correspondence. The last letter that was written to you advising that you were unfinancial was dated 14 October 2009. The Union did not receive a reply or response to this final correspondence.
Given that your membership lapsed for a period in excess of six months and the fact that despite several attempts by the Union to contact you failed, Union Council resolved to purge your membership from the HSU.
I note that you rejoined the Union on 9 November and made a retrospective payment to address your lapsed membership.
I appreciate your concern in this matter however, I am of the view that several attempts were made to contact you during the course of 2009 in an effort to maintain your membership but it appears you neglected to do so until such time as you required assistance.
In view of the above series of events, in particular, that you were purged from the membership record due to becoming unfinancial and given that you rejoined the Union after you were terminated from your employment, I regret to advise that we cannot assist with the issue of your termination.
I understand that during your conversation with Mr Hayes you required reimbursement of the fees recently paid to which Mr Hayes agreed and has now progressed.
I trust that this correspondences clarifies the Union's actions in this matter
55 Mr Markovski's s.84 application was filed on the 10 February 2010, some 130 days after he was terminated by SSWAHS.
The Evidence
56 Mr Markovski deposed that he had difficulty doing the Ward duties because he had never performed them previously, had never been properly trained in them and never felt comfortable carrying them out as opposed to the work he had been employed on doing the courier duties. This resulted in him being placed under significant stress and pressure. The complaints about his performance, which related to his Ward duties, added to his distress. He strenuously denied the allegations raised about him in the July 2008 meeting with Mr Beard.
57 He was not happy with the changes to his work hours and shifts proposed by Mr Beard, as this was not only a very important change in terms of his employment, but a significant reduction in his wages.
58 Mr Markovski maintained that he was asked to attend a further meeting on 7 October but was not properly told about the meeting, that communication was given to the Union who were dealing with the issues. The meeting related to his return to work on dayshift and his altered hours of work and reduced pay which he did not agree to. It made him very angry and caused great distress. He felt he was being harassed, bullied and picked on and when he left the meeting he felt distressed, physically ill and angry. He went to see his doctor and he told him he should not be returning to work and provided him with a medical certificate. He was so distressed and angry about his employer's decision that he said he could not continue working. It made him depressed and ill and he eventually ceased work.
59 Mr Markovski continued to provide Workers Compensation Certificates and maintained that when he received 2 June 2009 letter about the return to work "at this stage" his Workers Compensation Claim was disputed and remains in dispute. He maintained he did not really understand the letter and had no idea how he was expected to obtain the information from his medical practitioner or how he was expected to communicate it to his employer. He continued to in provide medical certificates which suggested he should avoid stress at work because of his poor health. He told his doctor about the request and assumed "he would attend good" and continue to provide the certificates the doctor gave him.
60 Mr Markovski maintained that he did phone Ms Mills on 14 August 2008 and phone records were tendered (Exhibit 4) showing that for the date 14 August at 10.09, Ms Mills' phone number was contacted with a duration listed of 50 seconds. He remembered ringing and trying to contact Ms Mills and every time there was this answering machine and he would leave a message. He did not have a copy of all his phone records. He didn't think 14 August was the earliest time that he tried to contact Ms Mills, he thought he would have rung before that.
61 Ms Mills maintained that she did not receive any message on her phone from Mr Markovski on 14 August and that if she had she would have returned his call.
62 In relation to the subsequent letters Mr Markovski again maintained that he had difficulty understanding what he was being asked for and had not been contacted by the employer with any clarification of what was being sought.
63 He considered the termination of his employment to be completely unfair and sought to be returned to his normal job doing courier duties throughout the hospital and was ready willing and able to carry out that work. He was aware that other people were still engaged by the Hospital in that position.
64 After he was terminated he went to the HSU and gave them details and understood they were representing him. He was subsequently told they were not representing him and he would have to attend to the matter himself and he then filed this application.