QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Queensland Services, Industrial Union of Employees (for Leslie Rojas-Carranza) v Brisbane City Council [2018] QIRC 042 |
PARTIES: | Queensland Services, Industrial Union of Employees Applicant v Brisbane City Council Respondent |
CASE NO: | D/2017/33 |
PROCEEDING: | Arbitration of a Notice of Dispute |
DELIVERED ON: | 3 April 2018 |
HEARING DATES: | 13 February 2018 |
HEARD AT: | Brisbane |
MEMBER: | Vice President Linnane |
ORDERS: |
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CATCHWORDS: | INDUSTRIAL LAW – arbitration of a Notice of Industrial Dispute – relief outlined in a Statement of Claim sought payment of sick leave for employee – no power in Commission to order payment of wages unpaid in such an application – application to be made under s 477 of Act – no merits in the claim by the employee for payment of sick leave – found on medical evidence to be fit to return to work and perform duties. |
CASES: | Industrial Relations Act 2016 Brisbane City Council Certified Agreement 2013 Australian Workers' Union of Employees, Queensland v State of Queensland (2013) 301 ALR 457 Re Dingjan; Ex parte Wagner and Anor (1995) 183 CLR 323 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 |
APPEARANCES: | Ms K. Johnstone and with her Ms R. Girard for the Queensland Services, Industrial Union of Employees. Ms A. Treston and with her Ms E. Smith for the Brisbane City Council. |
Decision
"1. The matters in dispute concern the way in which the respondent has handled a grievance lodged by our member Ms Leslie Rojas Carranza in relation to workplace harassment which she has experienced during her employment with the respondent's library service.
2. The issues are summarized in a letter from the applicant to the respondent dated 9 January 2017.
3. In that correspondence the applicant sought to deal with the matter without raising a formal grievance however after the informal approach did not progress the applicant requested that the matter be treated as formal and made the subject of investigation.
[3] On 9 August 2017 Commissioner Thompson in a Memorandum to the Industrial Registry said that the question to be determined was:
"Whether the Brisbane City Council has met its obligations in respect of sick leave entitlements (Schedule 5: Personal Leave and rehabilitation procedures - 2 Personal Leave (Sick and Carer's) of the Brisbane City Council Certified Agreement 2013 (EBA8) as it relates to Leslie Rojas Carranza and the ceasing of payment for such leave."
[4] In seeking to ensure that the Commission and the Brisbane City Council (BCC) were aware of the exact nature of the QSU's claim in this arbitration, I issued, on 21 August 2017, directions for the further conduct of the matter. The first such direction was as follows:
"The Queensland Services, Industrial Union of employees (QSU) file in the Industrial Registry and serve on the Respondent, Brisbane City Council, a Statement of Claim in respect of the matter to be arbitrated. That statement to include the factual basis relied upon by the QSU to support its claim and the relief sought by the QSU. The Statement of Claim is to be filed and served by close of business on 31 August 2017."
[5] The QSU filed its Statement of Claim on 8 September 2017 and outlined the relief it was seeking as:
"The Applicant claims the following relief for Ms Rojas Carranza, being that Brisbane City Council pay her personal leave entitlements that have been unpaid from 15 July 2017, to be quantified at the time of a decision."
[6] The Directions Order of 21 August 2017 also sought a Response from the BCC to the QSU's Statement of Claim to be filed by 14 September 2017. The BCC filed that Response and took issue with the Commission's power to grant the relief sought by the QSU. The QSU was thus aware, as at this time, of the BCC's position and took no steps to vary the relief it was seeking in this arbitration.
[7] As it appeared that the whole matter could be heard in one day, I decided to hear the BCC's argument on the Commission's power to grant the relief sought and the merits and the QSU's claim at the same time.
Brief Outline of Factual Position
[8] Ms Rojas-Carranza is employed by the BCC in the position of flexible permanent part time Library Assistant, Band 2 for 10 hours per week. She is also employed by the BCC in the position of Casual Customer Support Officer where she also performs duties. The issue the subject of this decision relates to her employment as a Library Assistant.
[9] Ms Rojas-Carranza applied for Personal Leave as and from 5 December 2016. Ms Rojas-Carranza's entitlement to Personal Leave is outlined in Schedule 5 to the Brisbane City Council Certified Agreement 2013 (EBA 8) which relevantly provides as follows:
"Schedules - Procedures
Schedule 5: Personal Leave and rehabilitation procedures
1. Overview
1.1 Paid Personal Leave is provided to support employees through periods of personal illness/injury and in the rehabilitation process. Personal Leave is not an alternative to Workers' Compensation for workplace illnesses or injuries nor is it provided to be used in conjunction with income benefits from a private insurer to create individual financial benefit.
1.2 The following procedures have been agreed to establish the Personal Leave arrangements and to ensure effective rehabilitation processes and that appropriate arrangements are in place to manage extended and/or recurrent absence and clarify processes for people leaving Council for medical reasons.
…
2. Personal Leave (Sick and Carer's)
2.1 All employees (other than employees engaged as casuals) who are unable to perform their duties on account of illness/injury (except illness/injury covered by Workers' Compensation) or carer requirements shall have access to a paid Personal Leave entitlement, which will accumulate from year to year. Paid Personal Leave may only be accessed once an employee has worked for Council for a minimum period of six weeks of non-casual service. Accumulated Personal Leave will not be paid out on cessation of employment under any circumstances.
2.2 Employees will accrue 15 days Personal Leave (pro-rata for part-time and flexible permanent part-time employees) for each completed year of service. The accrual and credit of Personal Leave for employees engaged with Council on or before 30 June 2010 will start from 30 June each year. The accrual and credit of Personal Leave for employees engaged after 30 June 2010 will start from the commencement of employment date.
2.3 Personal Leave will be reflected as equivalent hours and calculated using the employee's relevant ordinary hours of work. The ordinary hours of work for a full-time wages employee shall be 38 hours per week and 36.25 hours per week for a full-time salaried employee. The actual time absent by employees will be recorded and deducted from the employee's entitlement. Personal Leave is calculated on a pro-rata basis for part-time and flexible permanent part-time employees.
…
2.6 Personal Leave is available to employees in the following instances:
(i) where the employee is unable to perform their duties on account of illness or injury
(ii) where the employee is the primary care giver and is required to care for or support a member of their immediate family* or household.
…
3. Procedure requirements
3.1 Taking of Personal Leave
3.1.1 Council will approve all reasonable requests for Personal Leave. Requests for Personal Leave due to personal illness or injury will require a medical certificate from a registered medical practitioner* or other evidence to the satisfaction of the employer in the following circumstances:
(i) for any period of paid Personal Leave which exceeds two working days
(ii) after five or more absences of up to two days on paid Personal Leave without a medical certificate have been taken within 12 months from the employee's Personal Leave accrual start date. In this situation a medical certificate or other evidence will be required for every day of paid Personal Leave requested during the remainder of that particular 12 month period.
3.1.2 Council requires that the medical certificate or other evidence provided is to include the nature of the medical condition, however acknowledge an employee's right to patient confidentiality as defined by the Medical Board of Queensland policy on issuing of medical certificates. Where confidentiality of medical information on the particularised medical certificate is a concern, employees may provide the medical certificate directly to their manager.
…
3.2 Notification of inability to attend work to assist in making arrangements for replacing an absent employee, employees who are unable to work due to personal illness or injury should notify their immediate supervisor as soon as practical when they become aware of their inability to attend for work, including the reason they are unable to work and the estimated duration of the absence. Failure to do so may result in the non-payment of Personal Leave for that absence.
…
3.7.1 Paid Personal Leave is designed to support employees with the capability, intention and desire to return to work in their substantive role. Council has a responsibility to rehabilitate ill or injured employees and to assist those employees to return to work. Rehabilitation processes support access to accurate and relevant medical information from the treating doctor and assist a productive return to useful work as soon as practical. To benefit from these arrangements, employees have a responsibility to cooperate with the rehabilitation process, including the provision of necessary and reasonable information to allow the rehabilitation process to operate effectively.
3.7.2 Employees can be referred to a rehabilitation consultant* when they have:
(i) absences of greater than ten consecutive working days due to illness/injury
(ii) provided a certificate or notified their supervisor that they will be absent for more than ten days
(iii) recurrent or patterns of absence.
…
3.7.4 The rehabilitation consultant will make an initial assessment on the appropriateness of rehabilitation. When rehabilitation is considered appropriate or if further information is required, the rehabilitation consultant will contact the employee to:
(i) develop a rehabilitation plan to be commenced; and
(ii) obtain the employee's cooperation in advising their treating doctor to complete and return a standard advice form regarding work capacity and limitations, to enable development and commencement, when appropriate, of a rehabilitation program and return to work; and/or
(iii) obtain the employee's consent for the rehabilitation consultant to contact the employee's treating doctor to clarify the information sought and discuss rehabilitation if required.
3.7.5 The requirement for the employee to support the provision of the above information is necessary to enable Council to meet its obligation to rehabilitate ill employees. Where the employee does not support the provision of this information or otherwise does not comply with rehabilitation, including attendance at medical reviews and participating in support programs, without reasonable excuse, paid Personal Leave will be suspended. In the event of any suspension, the employee and the employee's union will be notified that suspension will take effect 14 days from the date of notice. Where an employee subsequently complies with their rehabilitation responsibilities, access will be reinstated but not backdated.
3.7.6 An employee may be required to undergo a medical review where:
(i) no information is provided by the employee's treating doctor
(ii) the information provided by the employee's treating doctor is insufficient
(iii) the information provided by the employee's treating doctor is conflicting.
3.7.7 The medical review may be undertaken by a Council doctor+ or an independent specialist nominated by Council, or by the employee's treating doctor, with the intention to gain information regarding the employee's work capacity and to clarify the information that is required for Council to support the employee's return to work.
3.7.8 In addition to Clause 3.7.6 employees may be required to undertake an independent medical review on a quarterly basis (e.g. 3, 6, 9, 12 months and so on from date of illness/injury).
3.7.9 Council's responsibility to provide rehabilitation ceases once the employee's injury/illness is medically certified as stable and stationary, or if medical advice indicates that the employee is no longer able to perform the inherent requirements of their substantive role.
* Rehabilitation consultants possess qualifications and experience in rehabilitation case management and are engaged by Council to manage rehabilitation.
+ Council doctor refers to any registered medical practitioner appointed and paid by Council."
[10] Under clause 3.7.2 of the Personal Leave and Rehabilitation Procedures in EBA 8, an employee may be referred to a rehabilitation consultant where the employee has:
[11] On 12 January 2017, in accordance with the Personal Leave and Rehabilitation Procedure in EBA 8, Ms Rojas-Carranza was referred to a Rehabilitation Consultant.
[12] On 27 January 2017 (according to the Notice of Industrial Dispute) Ms Rojas-Carranza lodged a formal complaint with the BCC alleging workplace harassment.
[13] On 22 March 2017, due to Ms Rojas-Carranza's treating General Medical Practitioner providing insufficient and conflicting information regarding her rehabilitation, Ms Rojas-Carranza was referred for medical review pursuant to clause 3.7.6 of the Personal Leave and Rehabilitation Procedures in EBA 8. This medical review was undertaken by Dr Therese McGrath on 4 April 2017. I will deal with Dr McGrath's evidence later in this decision.
[14] Having reviewed Ms Rojas-Carranza, Dr McGrath issued a written report. In that written report Dr McGrath opined that Ms Rojas-Carranza was fit to return to work and entirely able to perform the duties of her substantive role as a Library Assistant subject to an adjustment that Ms Rojas-Carranza not work in the same environment as the Manager against whom she had lodged a grievance. As that Manager did not work in the same environment or directly with Ms Rojas-Carranza, Dr McGrath opined that she was able to return to work as a Library Assistant.
[15] The BCC accepted the advice of Dr McGrath and on 11 July 2017 directed Ms Rojas-Carranza to return to work on 18 July 2018 in her position as a Library Assistant. When Ms Rojas-Carranza refused to return to work, the BCC ceased the payment of Personal Leave to Ms Rojas-Carranza as and from 18 July 2017. Ms Rojas-Carranza has not returned to work as at the date of this hearing although she has remained working in her other position as a Casual Customer Support Officer for the BCC. She has also continued to work in her employment with Virgin Airlines as a guest service agent. Ms Rojas-Carranza is currently on unapproved leave without pay from her position as a Library Assistant.
[16] As mentioned previously the QSU seeks, in this arbitration, payment of Personal Leave for Ms Rojas-Carranza as and from 15 July 2017.
Evidence
[17] The QSU relied solely on the evidence of Ms Rojas-Carranza. The BCC relied upon the evidence of the following witnesses:
Fellow of the College of Occupational and Environmental Medicine;
Bachelor of Medicine;
Bachelor of Surgery;
Master of Medical Science in Clinical Epidemiology; and
Graduate Diploma in Occupational and Environmental Health; and Fellow of the College of Occupational and Environmental Medicine which is part of the Royal Australian College of Physicians.
[18] Evidence of Ms Rojas-Carranza: Ms Rojas-Carranza commenced working in the BCC's Library Service in 2001. Her substantive role in the BCC as at September 2016 was as a Library Assistant working 25 hours per week at Brisbane Square Library. For a two-year period prior to early October 2016, Ms Rojas-Carranza had been seconded to work as a Community Leasing Officer in the BCC's Community Facilities area. Ms Rojas-Carranza was advised in 2016 that the secondment would come to an end and she would then be returning to Library Services. Whist Ms Rojas-Carranza was seconded to Community Facilities she commenced employment with Virgin Airlines working 22 hours per week as a guest services agent.
[19] Ms Rojas-Carranza did not wish to return to Library Services working 25 hours per week given that she then had the Virgin Australia work. Instead of the 25 hours per week that was her substantive contractual hours she sought to reduce those hours to 15 hours per week. The only BCC employee who could authorise such a reduction in hours was Ms Sharon Robertson, the BCC's Senior Co-ordinator Operations in the Library Services.
[20] Ms Rojas-Carranza approached Ms Robertson about returning to work in Library Services whilst still seconded to Community Leasing. It is clear, although not from Ms Rojas-Carranza's evidence, that an agreement was reached whereby Ms Rojas-Carranza would return to Library Services in the Flexi-pool area working 10 hours per week on a trial basis. Ms Rojas-Carranza forgot to mention the trial that she had agreed to prior to returning to Library Services. The details of the trial are outlined in Ms Harvey's evidence
[21] Ms Rojas-Carranza returned to Library Services in early October 2016 on the trial basis. As part of this trial, Ms Robertson sought from Ms Rojas-Carranza details of her work roster at Virgin Australia. Ms Rojas-Carranza generally supplied those rosters. According to Ms Harvey's evidence, Ms Robertson wished to ensure that there was no conflict in Ms Rojas-Carranza working for Library Services and Virgin Australia and to ensure that Ms Rojas-Carranza had sufficient breaks between shifts in both arenas.
[22] Ms Rojas-Carranza apparently provided the rosters until she was asked to provide rosters for the week commencing 27 November 2016. Ms Rojas-Carranza had sought to work on Sunday 4 December 2016. The employee dealing with the rosters for Sunday sought advice from Ms Robertson about whether Ms Rojas-Carranza should be rostered for Sunday 4 December 2016. Ms Harvey's evidence was that Ms Rojas-Carranza had been off work sick in that week and was then asking to pick up an extra shift on the Sunday. Ms Rojas-Carranza produced e-mail correspondence between her and her Team Leader on Tuesday 29 November 2016 to show that she was at work on the Tuesday of that week.
[23] No actual records of employment in that week were produced by the QSU or Ms Rojas-Carranza so I am unable to determine whether or not Ms Rojas-Carranza was absent from work sick during that week. In any event Ms Robertson had an entitlement to seek the roster from Ms Rojas-Carranza given the trial that Ms Rojas-Carranza was then working under.
[24] On 2 December 2016 Ms Rojas-Carranza attended her general medical practitioner, Dr Raymond Chan and his Progress Notes record the following:
"History
feel bully by mgr at work at centrel [sic] library
want to loddge [sic] complaints at her
seen by psh [sic] at work, told to take time off
still in contact with early preg
also work at Virgin
will have another bHCG next week
Examination
Anxious, crying
Management
Supportive, counselling.
…”
[25] Dr Chan issued Ms Rojas-Carranza a Medical Certificate on 2 December 2017 saying that she was "unfit to attend work (at BCC libraries) for the period" 5 December 2016 to Thursday 15 December 2016 inclusive. On 5 December 2016 Ms Rojas-Carranza again attended on Dr Chan where his Progress Notes state as follows:
"History
feel nausea
no pain or bleeding
still dealing with union
told to get Qcomp
Examination
bHCG: 530, falling
Management:
discuss options
Actions:
QLD Workers' Compensation Medical Certificate: printed
Pathology requested: Bhcg (QUANT)
Prescription added: PRAMIN TABLET 10mg 1 t.i.d.p.r.n
Prescriptions printed".
[26] By the time Ms Rojas-Carranza visited Dr Chan on 14 December 2016 she had had a miscarriage. Clearly the reference to "feel nausea, no pain or bleeding" and the medication in the Progress Notes of 5 December 2016 related to Ms Rojas-Carranza's pregnancy. This was apparently Ms Rojas-Carranza's first pregnancy. Dr Chan's Progress Notes for the 14 December 2016 notes stated:
"History
seen by mater ED and early preg clinic
had few clots
had vaginal u/s
didn't lodge Q comp yet
told by union to leave it till next march
will have new work bullying rule soon
will see psychologist at work
Examination
miscarriage
depression
Management
r/v by work psychologies
Actions
Letter Created – re 1 Medical Certificate WORK to
Letter Printed – re 1 Medical Certificate Work to …"
[27] Dr Chan issued Ms Rojas-Carranza with a Medical Certificate on 14 December 2016 stating that she was "unfit to attend work (at the BCC library)" for the period 5 December 2016 to 15 January 2017 due to a "medical condition (confidential nature)".
[28] Clearly, in the week commencing 29 November 2016, Ms Rojas-Carranza was pregnant and was having difficulties with her pregnancy. On 11 December 2016 she suffered a miscarriage.
[29] Ms Rojas-Carranza has not returned to work at the BCC Library Services since 2 December 2016. It is not in dispute that Ms Rojas-Carranza has sought and obtained medical certificates from Dr Chan for the period and that these medical certificates have been provided to the BCC. Nor is it in dispute that Ms Rojas-Carranza has kept her Team Leader informed of her absences from work.
[30] Throughout the period 2 December 2016 until 18 July 2017 Dr Chan issued medical certificates stating that the nature of Ms Rojas-Carranza's medical condition was "confidential nature" or "confidential". As and from 18 July 2017, Dr Chan issued medical certificates to Ms Rojas-Carranza indicating that her medical condition was "depression and anxiety". All medical certificates enabled Ms Rojas-Carranza to work elsewhere in the BCC and at Virgin Australia. The medical certificates simply stated that she was unfit to work in BCC libraries.
[31] Ms Rojas-Carranza was referred by her Team Leader to the BCC Rehabilitation Unit on 4 January 2017 in accordance with the Personal Leave and Rehabilitation Procedures contained in EBA 8. In correspondence dated 21 March 2017 Ms Rojas- Carranza was notified by Ms Harvey to attend a medical examination with Dr McGrath on 4 April 2017. Ms Rojas-Carranza attended that medical examination. Dr McGrath issued a medical report in respect of that medical examination on 4 April 2017.
[32] On 11 July 2017, Ms Rojas-Carranza met with Ms Harvey and Ms Sharyn Hine from Human Resources. At the meeting, Ms Rojas-Carranza said that she was advised of the outcome of the rehabilitation process and that she was fit to return to work. She was further advised that she was to return to work commencing 18 July 2017. At that meeting Ms Rojas-Carranza was provided with correspondence signed by Ms Harvey notifying her of the outcome of the Occupational Health Review (Exhibit 1). Ms Rojas-Carranza said that she advised Ms Harvey that her general medical practitioner had not cleared her to return to work.
[33] Following that meeting Ms Rojas-Carranza logged on to her BCC e-mail service and received the allocation of work from Ms Michelle Chapel. On 18 July 2017, when Ms Rojas-Carranza did not return to work, Ms Cleland contacted her concerning her non-attendance at work. Ms Rojas-Carranza has been rostered to work in Library Services on each week since 18 July 2017. She has not attended for work in that time.
[34] In the period since 18 July 2017, Ms Rojas-Carranza has received only four weeks of sick leave as a result of suffering a broken foot.
[35] Ms Rojas-Carranza admitted that Dr McGrath's qualifications exceed those of Dr Chan but said that Dr McGrath did not have knowledge of her medical history. Dr McGrath did have, when undertaking her medical examination of Ms Rojas-Carranza, the Progress Notes and medical certificates issued by Dr Chan.
[36] Ms Rojas-Carranza also informed the Commission that she had lodged a complaint of bullying against Ms Robertson early in 2017. The BCC had investigated that complaint and found that her allegations of bullying were not substantiated. Ms Rojas-Carranza was advised of the outcome of this investigation in "May or June 2017". Her evidence was that she had not challenged that finding to date.
[37] Whilst acknowledging to Dr McGrath that she had no past history of anxiety or depression, Ms Rojas-Carranza said in evidence that she and Ms Robertson had a "history of a few years".
[38] As at the date of hearing this application Ms Rojas-Carranza had a Personal Sick and Carers Leave balance of 1,379.30 hours.
[39] Evidence of Dr Therese McGrath: I have outlined Dr McGrath's qualifications earlier in this decision. Dr McGrath works in private practice and has a contract with the BCC on one morning a week to undertake assessments. She met Ms Rojas-Carranza on 4 April 2017 after she was referred to her by Mr Christopher Massavelli, a BCC Rehabilitation Consultant. Dr McGrath issued a medical report (Exhibit 7) on 4 April 2017 in connection with her examination of Ms Rojas-Carranza. That medical report relevantly provides as follows:
"Summary and assessment
Ms Rojas Carranza is a Library Assistant whose substantive role is permanent part-time 10/15 hours per week in the relief pool. She has been on sick leave since 5 December 2016, related to work stressors of perceived bullying from her Manager and she also had a miscarriage on 11 December 2016.
Currently, there is no indication of a significant medical condition.
Ms Rojas Carranza is demonstrating a fitness for work, functioning in a different environment at Virgin Airlines working in Guest Services. She reports only experiencing anxiety related to working with the Manager and she has lodged a grievance against this Manager.
Specific questions:
Ms Rojas Carranza has asthma which is well controlled. She experiences anxiety relating to return to work with her previous Manager. Current evidence does not suggest that there is a current psychological condition considering that Ms Rojas Carranza is able to function well in a different work environment, and at home and socially.
…
There is no indication of a medical condition requiring workplace rehabilitation. She should continue with some psychological counselling when she returns to work.
…
6. What is the employee's current work fitness and timeframes to return to work?
Ms Rojas Carranza is currently fit to return to work, and she is now entirely able to perform the duties of her substantive role. The restriction is working with the Manager with which she has experienced difficulties in the relationship.
7. Please identify the potential for the employee to return to their full-time role in a sustained manner and the timeframes to commence a return to work in this role.
Ms Rojas Carranza is currently fit to return to work her normal hours, with the above restriction.
8. What are the significant barriers impacting on the employee's recovery and the ability to return to work and how may these be overcome?
Barriers for return to work are Ms Rojas Carranza has reported anxiety symptoms related to working with a particular Manager and refusing mediation with this Manager.
9. Are there any permanent restrictions on the type of environment, work or duties in which the employee could perform?
There are no permanent work restrictions medically based.
10. Please advise of any reasonable work-related adjustments that would assist with the employee's recovery and return to work, and timeframe for these to be implemented.
Adjustments for return to work are not working in the same environment as the Manager against which she has lodged a grievance.
…
ADDITIONAL QUESTIONS AS APPROPRIATE:
…
2. What is the level of risk of exacerbation of the condition, if the employee were to encounter the Team Leader or other colleagues from the work area in the course of a general work day?
Ms Rojas Carranza said that she has no difficulties with her interactions with her team leader and work colleagues. It is her interactions with her Manager which causes anxiety symptoms. There would be a significant risk of onset of a psychological condition if she is required to work with this Manager."
[40] Dr McGrath said that she still holds the opinion that she expressed in her medical report of 4 April 2017. In relation to question 10, Dr McGrath was asked what sort of interaction she was referring to and she said it would be "in the same physical environment, sort of face to face direct contact".
[41] Under cross-examination Dr McGrath said that the purpose of her assessment of Ms Rojas-Carranza was to assess her fitness for work. In that assessment she is required to establish whether there is a medical condition impacting on Ms Rojas-Carranza's fitness for work. It is looking at the medial factors that affect her work capacity. Dr McGrath said that when assessing Ms Rojas-Carranza on 4 April 2017 she was assessing her fitness to work at that time. Dr McGrath further stated that Ms Rojas-Carranza did not report any current symptoms, she was not having any treatment and she did not have any medical condition at the time.
[42] Dr McGrath, under cross-examination, confirmed that her reference to Ms Rojas-Carranza being "required to work with this Manager" was a reference to Ms Rojas-Carranza having direct face to face interactions with her Manager. She indicated that she would not include e-mail communication in that phrase. So, in Dr McGrath's opinion e-mail communication between Ms Rojas-Carranza and Ms Robertson would not be a problem.
[43] Ms Rojas-Carranza, at the time of Dr McGrath's assessment, was working in her other job with no difficulties. When asked to address the issue of risk, Dr McGrath said that given Ms Rojas-Carranza's perceptions, there could be a risk of her developing some anxiety symptoms if she was required to have direct, face to face, daily interaction with Ms Robertson.
[44] Evidence of Christopher Massavelli: Mr Christopher Massavelli is a Rehabilitation Consultant with the BCC. In that role his duties are to support sick and injured workers to return to their substantive role within the BCC. Ms Rojas-Carranza was referred to him by her Team Leader given the extended periods of leave that she had taken. In the course of his employment, Mr Massavelli said that, at times, he requires employees to be subject to medical reviews and the power to compel employees to undergo such medical reviews is found in Schedule 5 of EBA 8. Mr Massavelli said that Ms Rojas-Carranza's medical practitioner had provided the BCC with insufficient and conflicting information on Ms Rojas-Carranza and therefore he required the medical review.
[45] It was Mr Massavelli who provided the letter of referral to Dr McGrath and it was he who received the medical report from Dr McGrath.
[46] Under cross-examination, Mr Massavelli said that Ms Rojas-Carranza did not comply with the rehabilitation instructions (e.g. returning the authority for the BCC to contact Dr Chan) and did not give him any authority to contact Dr Chan until 9 March 2017. Dr Chan provided him with a short form which contained insufficient and conflicting information.
[47] Evidence of Ms Sharan Harvey: Ms Sharan Harvey, the BCC's Manager of Library Services, is responsible for the overall strategic direction and the operations of the BCC's library network. Library Services employ 322 full-time equivalent staff which amounts to about 400 employees. There are 33 Branch Libraries, a mobile library, a pop-up library and a branch support team that supports that network. The Branch Libraries are divided into four regions.
[48] The structure has Ms Harvey at the top, then under her are two Senior Co-ordinators and another eight Co-ordinators of specialised areas. One of those Senior Co-ordinators is the Senior Co-ordinator Operations and each team leader of all the Branch Libraries, the relief pool that supports those libraries, report to that Senior Co-ordinator Operations. The Senior Co-ordinator Operations has approximately 35 direct reports. Each of the team leaders then have library employees report to them.
[49] The Senior Co-ordinator Operations is, and was at all relevant times, Ms Sharon Robertson. Ms Harvey stated that Ms Rojas-Carranza is employed in the relief pool as a flexible permanent part-time library assistant for the west region i.e. she can be called upon to relieve in any of the eight libraries in the west region. As a Library Assistant, Ms Rojas-Carranza would provide customer service, answer inquiries out on the floor, shelve, help with children's programs and support people with technology inquiries. There would also be a small amount of work back of house i.e. processing holds and other administrative or transactional work.
[50] Ms Rojas-Carranza applied for sick leave on 5 December 2016 and was granted that leave. She has not returned to work since that date. On 11 July 2017, Ms Harvey directed Ms Rojas-Carranza to return to work by personally handing Ms Rojas-Carranza correspondence which is now Exhibit 1 in the proceeding. That correspondence relevantly provided as follows:
"Outcome of Occupational Health Review
The purpose of this letter is to advise you of the outcome of your Council Medical Officer (CMO) review and to provide you with further information in relation to this advice.
On 4 April 2017, you attended a medical appointment with Dr Therese McGrath for the purpose of providing advice regarding your current work capacity and to clarify the information required to support a return to work. You were required to undergo this medical review with the CMO due to information provided by your treating doctor being insufficient to adequately support you through Council's rehabilitation process.
A summary of Dr McGrath's advice is as follows:
Consideration of the Current Medical Advice
I have carefully deliberated on this advice from Dr McGrath, and in doing so, I have taken the entire advice that was provided into consideration. I also sought further clarification from Dr McGrath regarding her suggested adjustment for returning you to the workplace. Dr McGrath confirmed this adjustment refers to you working directly with the Manager, not about you seeing the Manager in the workplace. Dr McGrath also concluded that given your position in Council in relation to the Manager, there is no reason you can't return to your role.
After considering the adjustment suggested by Dr McGrath, I have determined that due to the current management structure and delegations, such an adjustment already exists within your workplace. I am accepting Dr McGrath's advice that you are fit to return and perform the functions of your substantive role
I have reached the decision that you will return to work on 18 July 2017. Your first week will be at Brisbane Square Library, after which you will undertake shifts as needed by the relief pool. I understand your current medical certificate covers your current absence until the 15 July 2017.
Council will work with you to assist in your return to work. Dr McGrath has indicated that you are currently accessing Council's Employee Assistance Program (EAP) and have found the service helpful. Dr McGrath has recommended that you should continue to use this service to assist in your return to work. I am therefore offering you an additional five sessions with EAP. This service provides a professional and confidential counselling service to assist with work and other issues that can affect your quality of life. The EAP is a free, voluntary service which can be contacted on 1300 360 364.
In accordance with Clause 3.8.4 of Schedule 5 of EBA8, you are required to provide medical certification for all future requests for paid personal leave. The medical certificate provided must include the nature of the medical condition in line with requirements outlined in EBA8. I remind you, failure to provide a compliant medical certificate may result in the non-payment of paid personal leave for that absence.
If you wish to apply for annual leave upon your return to work, in accordance with EBA8 and the Leave procedure (HRP022), all reasonable requests for annual leave will be considered by your team leader.
A copy of this letter will be placed on your personal history file."
[51] Under cross-examination, Ms Harvey was asked whether she could guarantee that Ms Rojas-Carranza would not see Ms Robertson at work. Ms Harvey could, of course, not offer such a guarantee and nor is she required to do so by Dr McGrath's medical report. Ms Robertson and Ms Rojas-Carranza work in the same building. Ms Rojas-Carranza works in the podium area and Ms Robertson works on level 8. Ms Harvey's evidence is that Ms Robertson would not normally be interacting with a Library Assistant. Ms Rojas-Carranza, in re-examination, also said that "officially I generally shouldn't have to" have any interaction with Ms Robertson. Ms Rojas-Carranza said that she has a Team Leader that she reports to.
[52] The reason for Ms Robertson's interactions with Ms Rojas-Carranza in the period leading up to 5 December 2016 is that Ms Rojas-Carranza wanted a change to her working conditions. Ms Robertson was the person who could approve that change. Ms Rojas-Carranza was on a trial to see whether the arrangement that she wanted would work. Ms Rojas-Carranza initiated the interactions with Ms Robertson. It was Ms Rojas-Carranza who wanted to reduce her hours and not Ms Robertson who was wanting to reduce Ms Rojas-Carranza' hours or work.
[53] Ms Harvey said the adjustment referred to by Dr McGrath was in place as at 18 July 2017 and continues to be in place. It was Ms Rojas-Carranza who decided not to recommence work as at 18 July 2017 and therefore Ms Rojas-Carranza has been unable to determine whether the adjustment was successful or otherwise. Ms Harvey said that Ms Rojas-Carranza has never been asked to work in the same environment as Ms Robertson. She simply was asked to agree to a trial when she commenced back at Library Services given that she had commenced working for Virgin Airlines since her previous period of employment at Library Services. That trial was for a three-month period but Ms Robertson required only a two-month trial before advising Ms Rojas-Carranza on 7 December 2016 that the trial had concluded and the arrangement that Ms Rojas-Carranza had sought was confirmed.
[54] At no time during her evidence did Ms Rojas-Carranza make mention of the trial that she had agreed to. It was only when Ms Harvey was being cross-examined that the trial came to light. Ms Harvey, whilst under cross-examination, was provided with correspondence dated 1 September 2017 which made reference to the trial, to suitable performance measures and that the trial would be about Ms Rojas-Carranza moving into the relief pool for ten hours per week.
[55] The correspondence asked Ms Rojas-Carranza whether it was okay "for you to move into the relief pool at 10 hours per week on a three-month trial basis only". Ms Rojas-Carranza then responded to Ms Robertson as follows:
"I am in total agreement that I cannot hold a 25 hour per week role as well as another at Virgin. As discussed I am more than happy to reduce my hours. I look forward to returning to my role and catch up on all of the changes. I'm confident that the two will not clash as I've been managing quite well. I will be sure to organise my work shifts around my library roster. I want to clarify what happens at the end of the three-month trial."
[56] Ms Robertson then responds as follows:
"Yes, this is a three-month trial in the relief pool. If all is okay Sharan can then make the decision to make it permanent. Yes, she would transfer at your substantive level. I think you would need to keep your Brisbane Square position for three months. If the decision is, it isn't working for you after three months, then you would have a decision about which job you held. Once the paperwork is signed off I will let Cheryl and Michelle know."
[57] Whilst this correspondence exchange was not tendered by the QSU, the cross-examination of Ms Harvey on that correspondence makes it clear that Ms Rojas-Carranza came back to Library Services on a three-month trial basis. As part of this trial that "suitable performance measures needed to be agreed" to ensure that Ms Rojas-Carranza had "sufficient breaks" and that her hours of work were "reasonable".
[58] The issue of the trial only arose with the evidence of Ms Harvey. The abovementioned correspondence only came to light after Ms Harvey raised the issue of the trial. The QSU and/or Ms Rojas-Carranza had this correspondence in their possession. This correspondence cast great doubt on the bona fides of Ms Rojas-Carranza in the evidence she gave in re-examination. That evidence was irrelevant to the matter I had to determine in this matter.
[59] Ms Rojas-Carranza either deliberately sought to mislead the Commission by failing to mention she returned to Library Services on an agreed trial basis and the terms of that trial, or she forgot that she returned to Library Services on that basis. Ms Rojas-Carranza had a considerable time within which to prepare to give evidence in this matter. Her failure to refer to the agreed trial also casts doubt on her allegations against Ms Robertson - an issue that I do not have to consider.
BCC Contention that the Commission does not have the Power to grant the relief sought by the QSU
[60] At the hearing of this application, Ms Johnstone for the QSU submitted that the matter before the Commission related to "the interpretation of the sick leave provisions contained in the legislation and the industrial instruments applicable to" Ms Rojas-Carranza's employment. If an interpretation of the sick leave provisions was sought then the Commission has a specific power under Subdivision 5 of Chapter 11 of the Industrial Relations Act 2016 (Act) to deal with such matters. The requirements of such an application is dealt with in Subdivision 5. No application was made by the QSU for an interpretation of Schedule 5 of EBA 8. On a later occasion, Ms Johnstone submitted that the "case of [Ms Rojas-Carranza] is that all of the provisions contained in either the award, the Act or the agreement" have been met and that once those conditions have been complied with the BCC is required to pay sick leave and the BCC cannot challenge Ms Rojas-Carranza's entitlement to sick leave.
[61] The QSU submits that Ms Rojas-Carranza has made a valid application for sick leave and that it was supported by the relevant medical certificates. It is not disputed that she supported her claim for sick leave with medical certificates. The issue is whether it was a "valid" application in that was she "unable to perform her duties on account of illness or injury".
[62] The BCC in its Response to the QSU Statement of Claim and in its final submission contends that the application requests the Commission to exercise judicial power in the guise of exercising arbitral power. The BCC submits that the matter is before the Commission by way of a notice of industrial dispute filed pursuant to s 261 of the Act on 3 May 2017. The matter was the subject of conciliation pursuant to s 262(3) of the Act and, when unable to be resolved via conciliation, it was referred by the QSU to arbitration.
[63] The relief sought by the QSU in the arbitration is that outlined in paragraph [3] of this decision i.e. that the BCC pay unpaid wages to Ms Rojas-Carranza. The BCC further submits that, in s 477 of the Act the legislature gave the Commission judicial power to order payment of wages on an application being made under s 475 or s 476 of the Act. This is not such an application. The QSU, in this application, seeks an order from the Commission that the BCC pay Ms Rojas-Carranza's alleged unpaid wages by way of the exercise of the Commission's arbitral power. In Schedule 5 to the Act "wages" is defined to include an amount payable to an employee for leave the employee is entitled to.
[64] Ms Treston for the BCC referred the Commission to the decision of the Queensland Court of Appeal in The Australian Workers' Union of Employees, Queensland v State of Queensland[1] which considered the nature of judicial power. In particular, the Commission was referred to the following paragraphs of that decision (footnotes have been omitted):
"[69] The determination of existing rights and liabilities has been accepted as a defining characteristic of the judicial function. In that regard, Hayne J said in South Australia v Totani:
"But as decisions like R v Davison show, the absence of any dispute about existing rights and liabilities does not, of itself, entail the conclusion that there is no exercise of the judicial power of the Commonwealth. And as one writer has recently suggested, '[t]he guiding principle of rights-determination versus rights-creation has proved to be imprecise and malleable'. It is, none the less, both right and important to observe that the determination of rights and liabilities lies at the heart of the judicial function, and that the creation of rights and liabilities lies at the heart of the legislative function." (citations omitted)
[70] Kiefel J also identified "the quelling of controversies" as part of the essential function of judicial power, stating:
"In general terms, courts are understood to have an adjudicative role, the essential function of judicial power being the quelling of controversies and the ascertainment and determination of rights and liabilities. Controversies to be resolved may involve questions or issues arising under statutes. The process involved, in the exercise of judicial power, is as stated in the often-quoted passage by Kitto J in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd:…"
[71] In Attorney-General (Cth) v Alinta Ltd, 91 Crennan and Kiefel JJ said:
"The purpose of the judicial function identified by their Honours is not controversial. An adjudication is undertaken in order to resolve a dispute about the existing rights and obligations of the parties by determining what they are, not in order to determine what rights and obligations should be created. Holmes J, delivering the opinion of the Court in Prentis v Atlantic Coast Line Co said that a judicial inquiry 'investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end.'
It is both logical and necessary that the right or obligation in question exist independent of, and prior to, the exercise of judicial power. The controversy about its existence is the hallmark of a matter before the courts. The ascertainment of its existence is exclusively a judicial function." (citations omitted)…"
[65] The BCC further submits that arbitral power can involve the determination of existing rights and obligations as a step in arriving at an arbitral determination as in Re Dingjan; Ex parte Wagner and Anor[2]. Such arbitral power however is exercised where the decision is to be determined by considerations of policy as well as the application of legal principles: see Precision Data Holdings Ltd v Wills[3].
[66] In the current application, the QSU is seeking an order from the Commission that the BCC pay Ms Rojas-Carranza's alleged unpaid wages by way of the exercise of the Commission's arbitral power. The Commission thus does not have the power to make the order sought in this application.
[67] In response to the BCC's submission in this regard, the QSU contends that the Commission does have jurisdiction in that the QSU lodged a Notice of Industrial Dispute under s 262 of the Act and s 262(4) outlines what the Commission may do to settle the dispute i.e. direct the industrial action in relation to the dispute to stop or not happen, make orders, or give directions, of an interlocutory nature, exercise the Commission's powers under s 473 (whether or not application under that section has been made) to grant an interim injunction, make another order or exercise another power the commission considers appropriate for the prevention of, or the prompt settlement of, the dispute.
[68] There is no industrial action being taken in relation to this matter and thus there is no need to make an appropriate order or exercise another appropriate power for the prevention or the prompt settlement of the dispute. In s 262(4)(c) of the Act, the legislature has envisaged the need for the Commission to have a power to grant an interim injunction when dealing with an industrial dispute. If the legislature thought it appropriate to similarly deal with the specific power in s 477 to promptly settle an industrial dispute then it would have included such a provision in s 262(4) of the Act.
[69] Subdivision 9 of Chapter 11 of the Act specifically deals with recovery of unpaid wages. Section 475 sets out the power to recover unpaid wages, s 476 establishes the requirements for any such application and s 477 establishes the types of orders that may be made on such an application.
[70] Ms Johnstone for the QSU then submitted that the QSU was not seeking recovery of wages for Ms Rojas-Carranza. Rather the Commission was being asked to determine whether or not Ms Rojas-Carranza had complied with the provision for accessing sick leave. The QSU further submitted that should I make such a determination the QSU could then proceed under the recovery of wages provisions in the Act. Ms Johnstone further submitted that she was not asking the Commission for recovery of wages. Ms Johnstone further submitted that what the QSU was seeking was a determination that Ms Rojas-Carranza had complied with the requirements of the industrial instruments that govern her employment with the BCC.
[71] At this point the QSU appeared to resile from the relief sought in the Statement of Claim filed in response to the directions I issued for the arbitration of the dispute. Ms Johnstone kept submitting that the QSU was seeking a determination that Ms Rojas-Carranza made a valid application for sick leave, supported by the relevant medical documentation. That is quite a different outcome from the relief sought in the Statement of Claim.
[72] At no time prior to the QSU's final submissions in this application did the QSU advise either the Commission or the BCC that it was no longer seeking the relief outlined in the Statement of Claim. The directions order sought the identification of the relief that the QSU was seeking from the arbitration. The case outlined in the QSU's Statement of Claim is the case that the BCC responded to. If the QSU sought different relief to that contained in its Statement of Claim then it was incumbent on the QSU to advise the BCC and the Commission following the filing of the BCC's Response to the Statement of Claim. It failed to do this until the delivery of final submissions on the application. All the evidence had been adduced at this time.
[73] Ms Johnstone said that the relief the QSU was seeking was that contained in the Form 10 application. The Form 10 application is the Notice of Industrial Dispute.
[74] On 9 August 2017 Commissioner Thompson in a Memorandum to the Industrial Registry outlined the question to be determined in the arbitration and it is outlined in paragraph [3] of this decision.
[75] It was as a result of the question raised by Commissioner Thompson that I sought from the QSU to identify the exact relief it was seeking in the arbitration of this dispute. The QSU's Statement of Claim clearly articulated the relief it was seeking in the arbitration. Having heard Ms Johnstone's articulation of the relief that the QSU was seeking in this application I raised with Ms Johnstone the relief sought in the QSU's Statement of Claim.
[76] Ultimately, Ms Johnstone submitted that the QSU was "claiming that Council pay the applicant her personal leave entitlements that have been unpaid from 15th of July, to be quantified at the time of the decision. And this arises out of a determination that the applicant has made a valid application for sick leave pursuant to the requirements".[4]
[77] Any claim for wages, including personal leave entitlements, unpaid is a matter for recovery under s 477 of the Act. The Commission has been given specific judicial power to order the payment of wages that remain unpaid. Whilst issues relating to the payment of wages that remain unpaid can be the subject of conciliation of an industrial dispute, the claim for payment of such wages is one for a specific application under either s 475 of the Act. The Commission does not have jurisdiction to determine such matters via a s 261 Notice of Industrial Dispute or via the arbitration of a s 261 Notice of Industrial Dispute.
[78] I thus find for the BCC in its challenge to the QSU's claim and find that the Commission does not have the power to make an order for recovery of wages for Ms Rojas-Carranza under the current application.
Merits of Claim
[79] Having heard the merits of Ms Rojas-Carranza's application for payment of her sick leave as and from 18 July 2017 I intend to deal with that matter even though I have found no power to order any such payment of sick leave.
[80] The QSU's submission is as outlined previously in this decision i.e. Ms Rojas-Carranza has complied with the process outlined in EBA 8 and therefore the BCC has no entitlement to challenge her entitlement to payment of sick leave. The BCC deny that there are any wages payable and unpaid to Ms Rojas-Carranza.
[81] The BCC submits that the personal leave and rehabilitation procedures are those contained in Schedule 5 of EB A8. Whilst the QSU raised the Queensland Employment Standards in the Act, the BCC submits that the entitlements in Schedule 5 to EBA 8 are not inconsistent with, and are not less favourable than, the paid Sick Leave entitlements contained in the Queensland Employment Standards. Further, the BCC submits that the Personal Leave entitlements contained in Schedule 5 to EBA 8, at the material time, had application pursuant to s 998 of the Act in that the Certified Agreement was enforced by the Act and continued in force as a Certified Agreement under the Act. Whilst it is not necessary for me to determine whether or not Schedule 5 of EBA 8 or the Queensland Employment Standards in the Act apply to Ms Rojas-Carranza's employment it is apparent that the Schedule 5 to EBA 8 provisions are not inconsistent with, and are not less favourable than, the Sick Leave entitlements contained in the Queensland Employment Standards.
[82] Ms Rojas-Carranza's Conduct: The BCC submits that Ms Rojas-Carranza was paid sick leave from 5 December 2016 to 18 July 2017 and that she has not returned to her substantive position as a Library Assistant since being directed to do so as and from 18 July 2017. On either 27 January 2017 or 7 March 2017 Ms Rojas-Carranza formally lodged a complaint with the BCC that she had been subjected to workplace bullying and harassment by her supervisor, Ms Robertson. An investigation of that complaint ensued and by letter dated 26 June 2017, Ms Rojas-Carranza was informed that the investigation had revealed her allegations against Ms Robertson had not been substantiated. It is apparent that the BCC awaited the outcome of the investigation before taking any action on Dr McGrath's medical report which was provided on 4 April 2017.
[83] As indicated previously, the BCC does not take any issue with the fact that Ms Rojas-Carranza had provided the BCC with medical certificates indicating that due to a medical condition she was unfit to work in the Library Services for the period 5 December 2016 to 30 April 2017 inclusive. Pursuant to clause 3.7.2 of Schedule 5 to EBA 8, Ms Rojas-Carranza was referred to a Rehabilitation Consultant, Mr Massavellli, on 12 January 2017.
[84] On 22 March 2017 as a result of Ms Rojas-Carranza's treating medical practitioner, Dr Chan, providing insufficient information regarding her rehabilitation, Mr Massavelli referred Ms Rojas-Carrranza for a medical review pursuant to clause 3.7.6 of Schedule 5 of EBA 8. That medical review by Dr McGrath occurred on 4 April 2017.
[85] By medical report dated 4 April 2017 Dr McGrath reported, inter alia, that:
[86] On 11 July 2017 Ms Harvey met with Ms Rojas-Carranza and provided her with correspondence advising her of Dr McGrath's report. Ms Rojas-Carranza has not returned to work since that date. Ms Rojas-Carranza has, however, performed duties in the position of casual Customer Support Officer with the BCC.
[87] Clause 2.6 of Schedule 5 to EBA8 provides that Personal Paid Leave is available to employees in circumstances where the employee is unable to perform their duties on account of illness or injury. Thus, the BCC was within its rights pursuant to clause 3.7.6 of Schedule 5 to EBA 8 to have Dr McGrath undertake the medical review. The purpose of that medical review was to gain information regarding Ms Rojas-Carranza's work capacity and to clarify information that was required for the BCC to support Ms Rojas-Carranza's return to work.
[88] The evidence is that, subject to the restriction referred to by Dr McGrath that Ms Rojas-Carranza does not work in the same environment as Ms Robertson, she was capable as at 4 April 2017 and continues to be capable of returning to work. Ms Rojas-Carranza did not comply with a lawful direction for her to return to work on 18 July 2017 and she has continued to be absent from work as a Library Assistant. The BCC submits that there is thus no entitlement to paid sick leave under either EBA 8, the Award or the Act.
Finding
[89] I have great difficulty in understanding the QSU's contention that all Ms Rojas-Carranza had to do to receive paid sick leave was to provide the BCC with medical certificates covering the period of absence and notify her supervisor of that absence. It would appear that the QSU has not understood Schedule 5 to EBA 8. I refer to some of the references in that document which indicate that the primary basis for paid sick leave is the inability of the employee to perform their duties:
[90] Ms Rojas-Carranza was notified on 11 July 2017 by Ms Harvey, the BCC's Manager of Library Services, that the BCC had accepted the advice of Dr McGrath that she was fit to return to work and perform the functions of her substantive role. Ms Harvey notified Ms Rojas-Carranza on that day that "you will return to work on 18 July 2017". In the circumstances that direction by Ms Harvey was a lawful and reasonable direction from her superior officer. Ms Rojas-Carranza disobeyed that lawful and reasonable direction from Ms Harvey. At no time did she seek to obtain a specialist medical report and provide that to the BCC to support her continued absence from work.
[91] I found Ms Rojas-Carranza, in the giving of her evidence, to be disingenuous at times. I found Ms Harvey's evidence to be credible. The QSU was the party that adduced the evidence from Ms Rojas-Carranza about her interactions with Ms Robertson during the six months prior to December 2016. It was Ms Rojas-Carranza who was seeking an indulgence from Ms Robertson and the BCC. She wanted to reduce her contractual hours. She freely entered into an arrangement with Ms Robertson for a three-month trial in the Flexi-pool library area on 10 hours per week to see if her working in both Library Services in the Flexi-pool and Virgin Airlines, was able to be accommodated. Ms Robertson advised Ms Rojas-Carranza on 7December 2016 that the trial had confirmed that she could be permanently employed in the Flexi-pool area working 10 hours per week. In providing this advice on 7 December 2016, Ms Robertson had shortened the trial period from three months to two months. The BCC and Ms Robertson appear to have accommodated Ms Rojas-Carranza's request. No acknowledgement of that was provided by Ms Rojas-Carranza in her evidence. Nothing I heard during the course of Ms Rojas-Carranza's evidence and that of Ms Harvey would indicate that Ms Robertson bullied or harassed Ms Rojas-Carranza in the period leading up to 2 December 2017. She simply sought information from Ms Rojas-Carranza to ensure that Ms Rojas-Carranza could perform her role as both Library Assistant with the BCC and her role as guest services agent with Virgin Airlines. My assessment seems to accord with the outcome of the BCC's investigation of Ms Rojas-Carranza's complaint of either 27 January 2017 or 7 March 2017 wherein she alleged bulling and harassment by Ms Robertson i.e. the investigation revealed that Ms Rojas-Carranza's complaint had not been substantiated.
[92] Clearly Ms Rojas-Carranza was, as at 2 December 2016, experiencing difficulties in her first pregnancy. Dr Chan records in his Progress Notes for the visit on 14 December 2016 the word "depression" for the first time. That reference appears to be directly related to her miscarriage on 11 December 2016. In the totality of the Progress Notes of Dr Chan, tendered in this proceeding, that is the only reference to "depression" by Dr Chan. Ms Rojas-Carranza's evidence is that she visited a psychologist through the BCC program where she informed the psychologist that she was pregnant and "under threat of miscarriage". The period of time Ms Rojas-Carranza was "under threat of miscarriage" is not known but it is likely to have been prior to her visit to Dr Chan on 2 December 2016. In those Progress Notes, Dr Chan notes that Ms Rojas-Carranza had seen a psychologist at work who had told her to take time off.
[93] If Ms Rojas-Carranza wished to dispute the medical report of Dr McGrath she should have obtained a referral from Dr Chan to a specialist, who in turn then produced a medical report that disputed Dr McGrath's findings. This was not done. Nor was Dr Chan called as a witness to support his medical certificates. Dr McGrath's evidence is the only medical evidence that I can rely upon. Her evidence is clear. Ms Rojas-Carranza was fit to return to work as a Library Assistant as at 4 April 2017 provided she did not work in the same environment as Ms Robertson. She apparently has never worked in the same environment as Ms Robertson. Dr McGrath advised that it is direct face to face interaction with Ms Robertson that Ms Rojas-Carranza should avoid. According to Dr McGrath that adjustment did not extend to e-mail interaction i.e. Ms Robertson could have e-mail interaction with Ms Rojas-Carranza.
[94] In the circumstances I find that there is no basis for a claim for payment of sick leave as and from 4 April 2017 let alone from 18 July 2017. Providing medical certificates and advising supervisors of non-attendance at work is not the only criteria to be met to be entitled to sick leave. The primary criteria is that Ms Rojas-Carranza be "unable to perform" her duties "on account of illness or injury". As and from 4 April 2017 Ms Rojas-Carranza was fit to return to work and perform the duties of a Library Assistant. The one adjustment was that she not have direct face to face interactions with Ms Robertson on a daily basis.
[95] To date Ms Rojas-Carranza has continuously defied a lawful and reasonable direction from Ms Harvey for her to return to work and perform her Library Services duties. Any further defiance of that lawful and reasonable direction will place Ms Rojas-Carranza in a very difficult position as the BCC will have sufficient evidence to terminate Ms Rojas-Carranza's employment as a Library Assistant for failure to comply with a reasonable and lawful command.
[96] Ms Rojas-Carranza is now left with two options. Either she returns to work in her position as a Library Assistant in Library Services immediately or she resigns her position as a Library Assistant if she feels unable to work in the role. If she does not comply with Ms Harvey's direction of 11 July 2017 to return to work the BCC will have grounds to terminate her employment.
[97] Even if I had the power to order the QSU's claim in this application, I find that there is no merit in the QSU's claim for payment of personal leave entitlements to Ms Rojas-Carranza that have been unpaid since 15 July 2017 and thus the claim is dismissed. Ms Rojas-Carranza was, as at 4 April 2017, able to perform her role as a Library Assistant in the Flexi-pool. Ms Rojas-Carranza has no entitlement to personal leave as and from 4 April 2017 given that she was declared by Dr McGrath to be able to return to her role as a Library Assistant as and from that date.
[98] I dismiss the application and order accordingly.
[1] The Australian Workers’ Union of Employees, Queensland v State of Queensland (2013) 301 ALR 457
[2] Re Dingjan; Ex parte Wagner and Anor (1995) 183 CLR 323 360-361 per Gaudron J.
[3] Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 189 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
[4] T2-127 20
