Social worker sues NSW Health for unpaid entitlements

A part time social worker at Queanbeyan Hospital has successfully sued NSW Health for underpaid long service leave entitlements in a case her lawyer said could have implications for thousands of workers.

Because when it came to defending the claim Australia's largest public health provider said the payment made to Gwen Bartlett was "based on a calculation that has been applied equally across NSW Health".

Gwen Bartlett and her husband Michael at home. Photo: Dion Georgopoulos

Gwen Bartlett and her husband Michael at home. Photo: Dion Georgopoulos

"In other words, the payment calculation is no different to that received by anyone else in the NSW Health Service," the defence said.

NSW Health lost the suit and has paid Ms Bartlett the money she is owed. It has also now denied any broader implications arising from the suit.

In 2016 after more than 10 years employed at Queanbeyan Hospital Ms Bartlett became entitled to a period of long service leave.

She took that leave the following year.

She believed that as per her award and as a permanent part-time worker she was entitled to be paid the average, or pro rata, number of hours that she had worked during her first 10 years of employment.

On figures supplied by NSW Health that worked out to be just over 17 hours per week.

But when Ms Bartlett questioned NSW Health about for how many hours she would be paid while on leave, the numbers she received did not seem to accord with that figure. They were lower.

Her husband Michael took up the fight on her behalf and sued the government, alleging NSW Health was ignoring the award terms and paying Ms Bartlett’s long service leave according to policy.

Mr Bartlett said that policy was a long standing and detailed departmental policy about leave entitlements which in some parts does not accord with the award.

Late last year, a magistrate in the NSW Small Claims Court in Goulburn found for the social worker and ordered NSW Health pay Ms Bartlett the roughly $1600 she was owed including costs and interest.

"Our interpretation of the award was accepted by the court and NSW Health's claim that the award allowed their calculated payment was rejected by the court," Mr Bartlett said.

He said the amount owed was small in the scheme of things, and cost more in time and effort to win back than the final amount won, but he could not let the matter rest.

“I suppose it is a small victory for a small claimant over a powerful employer,” he said.

“It is fairly poor state of affairs that a part-time social worker has to sue her NSW Government employer to receive her lawful award entitlements.”

He said an interesting twist to the case arose when NSW Health defended the claim by arguing it had applied the same formula to every employee’s long service leave.

Mr Bartlett said the magistrate found that admission was not a defence to the claim.

He said the magistrate also found a departmental policy can not override an award.

“The fact that my wife was awarded the amount of underpaid long service leave claimed means, on the admission of NSW Health, that every part-time worker for NSW Health is being underpaid for long service leave.

"This practice has, apparently, been going on for years. I would have thought thousands of people have been underpaid and the total amounts involved would run into millions.”

In a statement NSW Health denied the suggestion the case had broader implications.

“This decision related to a technical calculation for an employee regarding their employment history," a spokesman said in a statement. "The decision did not have broader implications, nor was it a basis to conclude that other staff members had been underpaid. NSW Health provides long service leave to staff members, including part-time staff, in accordance with their statutory entitlements."

The spokesman said employees are free to raise any concerns about leave calculations.

The Bartletts say that frustratingly, the department continues to underpay Ms Bartlett even after the magistrate found in her favour last year.

Mr Bartlett said he was anecdotally aware of other NSW Health employees upset and perplexed they did not receive full pay on long service leave.