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.