C3885/700, Transcript of Proceedings [2001] AIRCTrans 121 (2 March 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 5936
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS
SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER BLAIR

C NO 38857 OF 2000

APPEAL UNDER SECTION 45 OF THE ACT
BY G. ERSKINE AGAINST THE DECISION
AND ORDER OF COMMISSIONER CRIBB AT
MELBOURNE ON 12 OCTOBER 2000 IN
U NUMBER 33189 OF 1999 RE TERMINATION
OF EMPLOYMENT

MELBOURNE

10.08 AM, WEDNESDAY, 14 FEBRUARY 2001

PN1

MS K. PARKINSON: I seek leave to appear on behalf of the appellant in this matter.

PN2

MR P. HULL: I seek leave to appear on behalf of the respondent, the employer, Chalmers Industries Pty Limited.

PN3

SENIOR DEPUTY PRESIDENT WILLIAMS: Thank you. I take it leave is not opposed on either side?

PN4

MS PARKINSON: No, your Honour.

PN5

MR HULL: That is correct, sir.

PN6

SENIOR DEPUTY PRESIDENT WILLIAMS: Leave is granted. We have received, pursuant to the directions issued by the Commission, written submissions both from the appellant and the respondent. I will mark those respectively.

EXHIBIT #P1 APPELLANT'S SUBMISSIONS

EXHIBIT #H1 RESPONDENT'S SUBMISSIONS

PN7

SENIOR DEPUTY PRESIDENT WILLIAMS: The matter has been listed this morning for brief oral argument. Ms Parkinson.

PN8

MS PARKINSON: Yes, your Honour. The submissions of the applicant are contained, as was indicated in the written submissions, exhibit P1, and reference in those submissions was made to the first instance written submissions, which were filed, which contained various references to authorities together with transcript references in the proceedings. As to the matter of leave, your Honour, it is the submission of the appellant that the matters going to the question of jurisdictional error by the Commission are matters such that leave ought be granted to the appellant to appeal the decision.

PN9

In particular, it is submitted that there was a fundamental error in the Commission's decision by the failure of the Commissioner to address the question of the weight of the evidence of the respondent's witness. In light of the objections which were made to various aspects of that evidence and, in particular, the hearsay nature of the evidence of Mr Ingledew and the failure to call direct evidence on the part of the respondent.

PN10

SENIOR DEPUTY PRESIDENT WILLIAMS: Is that essentially because that witness, first of all, was not involved in the original engagement of your client and, secondly, was not engaged in any direct investigation of what work might be available for your client, in view of the fact that he was unable to drive the truck?

PN11

MS PARKINSON: Yes, your Honour. And that matter goes also to the analysis by the Commission of the question of the inherent requirements of the position because save for the evidence of the applicant as to the nature of the employment, there was no evidence from the respondent as to the terms upon which the engagement was made nor, indeed, as to the day to day activities of the applicant in the performance of the duties. Because Mr Ingledew's evidence was that - or his ultimate concession was that he did not have day to day knowledge of how the applicant performed his tasks.

PN12

Substantially the evidence that was relied upon by the respondent to seek to counter the applicant's evidence was hearsay and was second hand and, to a large extent, was evidence that was surmised on the part of Mr Ingledew rather than any evidence of actual fact. And in my submission, those matters go equally to - not only to determining the question of the remedy that may be appropriate, but also to the question of determining whether or not there was an inherent requirement in the position.

PN13

And I say that it goes to the question of remedy because the remedy has been confined to an amount of monetary compensation and there has been no awarding and, indeed, there has been a finding that an order re-instatement would not be appropriate in the circumstances, but that finding has been made in the context where there is no direct evidence from any manager who had knowledge of day to day duties of the applicant.

PN14

COMMISSIONER BLAIR: Does your client, Ms Parkinson, present the issue of re-instatement as the appropriate remedy?

PN15

MS PARKINSON: Yes, your Honour - yes, Commissioner.

PN16

COMMISSIONER BLAIR: Call me your Honour and I will give you anything you like.

PN17

MS PARKINSON: Thank you, your Honour. Yes, your Honour, the remedy of re-instatement, together with lost remuneration in the period from the time of the termination is pressed.

PN18

SENIOR DEPUTY PRESIDENT WILLIAMS: There is considerable emphasis, it appears, in the written submission on whether or not the finding as to the existence of a valid reason was correct. Whether or not that was correct, that makes no difference to the Commissioner's finding, that the termination was unfair because in any event she comes to that conclusion. Do you say it has some substantial bearing on the remedy?

PN19

MS PARKINSON: Yes, your Honour, and I will say that it has substantial bearing upon the remedy because the finding that capacity or conduct of the applicant was affected, that the reason for the termination related to the capacity or conduct of the applicant or did not relate to the operational requirements of the respondent, impacts upon the question of whether an order for re-instatement ought be made. If there was a finding that the only reason for the termination was - that all other aspects were valid and that the only invalidity related to the opportunity to be heard and the consideration or otherwise of alternative duties, that may result reasonably in a finding that re-instatement of the applicant is not appropriate.

PN20

That is, if all of the circumstances were canvassed and aired before the Commission and the Commission was fully informed about the nature of the employment circumstances, coming to such a conclusion may warrant a different remedy. But in these circumstances, it is submitted that the lack of valid reason going to - goes directly to the question of practicality and appropriateness of the re-instatement.

PN21

SENIOR DEPUTY PRESIDENT WILLIAMS: As I understand, the Commissioner, in effect, said there was a valid reason because the applicant or the appellant was unable to drive a truck.

PN22

MS PARKINSON: Drive a heavy.

PN23

SENIOR DEPUTY PRESIDENT WILLIAMS: Heavy - well - - -

PN24

MS PARKINSON: Well, drive a truck, your Honour, yes.

PN25

SENIOR DEPUTY PRESIDENT WILLIAMS: Having come to that conclusion, she uses that as the same basis for saying that re-instatement is not appropriate and you say that if the basis for the valid reason finding was incorrect, then the issue of re-instatement as a remedy could be revisited.

PN26

MS PARKINSON: The conclusion as to remedy, it would be my submission, is also incorrect and insofar as the conclusion as to valid reason is concerned, we rely upon the terms of the engagement as your Honour earlier referred to. The terms of the engagement, the contract of employment between the parties and the lack of direct evidence to counter the evidence of the applicant on those matters.

PN27

SENIOR DEPUTY PRESIDENT ACTON: Ms Parkinson, one of the issues that you raised as a ground of appeal, as I understand it, is the Commissioner's failure, as you put it, to consider any other matters pursuant to section 170CH(7)(e) in terms of considering compensation. What were those other matters?

PN28

MS PARKINSON: The other matters relate to the circumstances of the injury occurring during the course of the casual engagement. The circumstances - the ongoing nature of the injury and the ailment that would make it difficult for the applicant to obtain alternative duties or obtain employment elsewhere and the circumstances of all of the training and additional licences that the applicant has obtained during the course of his employment. They are three of the matters and the other matter relates to the circumstances in which the applicant came to be in the employment, in the permanent employment. That is, moving down to Melbourne for the permanent employment.

PN29

SENIOR DEPUTY PRESIDENT ACTON: Are you able to refer me to where you raised those other relevant matters in the case?

PN30

MS PARKINSON: All of those matters were referred to in the initial outline of submissions of the applicant, pages 1, 2 - 1 and 2 and also in the applicant's written submissions and I will find the reference for your Honour.

PN31

SENIOR DEPUTY PRESIDENT ACTON: Thank you.

PN32

SENIOR DEPUTY PRESIDENT WILLIAMS: You mean the written submissions before the Commissioner.

PN33

MS PARKINSON: Yes, the original written submissions. Perhaps you could tell me, without me referring to that, where did the applicant move from when he moved to Melbourne?

PN34

MS PARKINSON: From Castlemaine. And there is one other matter. There is another matter that was not taken into account at all in relation to the decision and I believe I did address this in the written submission, that is, the operation of the award and the enterprise agreement in the workplace. The multi-skilling provisions that operated in that award that were conceded to be of mutual benefit to both employee and employer.

PN35

The capacity of the employer to move employees around the yard and to use various employees to perform various tasks is also a matter of moment, together with the fact that the classification referred to as driver and utilised by the employer contains many and varying tasks that could be performed. And they were all matters that were relevant to the ultimate fairness and were other relevant matters, in my submission. The original submissions of the applicant were contained as to the disability and the difficulty to get other employment are at paragraphs 37 to 40 of the original submissions of the applicant. And there are some transcript - - -

PN36

SENIOR DEPUTY PRESIDENT WILLIAMS: Did those submissions become an exhibit or - - -

PN37

MS PARKINSON: They were filed after the proceedings and I do not believe that they were actually exhibited.

PN38

SENIOR DEPUTY PRESIDENT WILLIAMS: They may not have been made available, then, to my colleagues. I have it on the original file, but I will ensure that my colleagues have copies of those because they would not have formed part of the appeal book.

PN39

MS PARKINSON: I did ask my instructor to include all the exhibits. I did not think to ask them to include that. I can provide a copy.

PN40

SENIOR DEPUTY PRESIDENT WILLIAMS: They do not appear to be in my copy of the appeal book, but I can ensure my colleagues have that.

PN41

MS PARKINSON: I would be grateful. Further, as to the jurisdictional issues that it is said found the appeal and warranted the granting of leave, it is submitted that there were some fundamental evidentiary misconceptions in the decision and one of the those matters relates to the Commission's finding that the applicant refused or would not accept casual employment as an alternative to fulltime employment or permanent employment. And that finding, it is submitted, was against the evidence. The applicant gave evidence of his preference for fulltime employment.

PN42

It was never put to the applicant that he would not accept casual employment and nor was it ever suggested to the applicant that casual employment had, indeed, been offered to him in the course of the termination interviews. That matter goes to the question of the reasonableness of the alternatives considered by the respondent, together with the capriciousness as to valid reason, in a sense of - in a sense discussed in Salvachandran.

PN43

And it is further submitted that as to the application of the decision in Salvachandran as to the question of valid reason, in determining whether or not the termination of the employment was capricious on the part of the respondent, it is submitted that the evidence was the respondent took the position that if the applicant could not drive a truck, he as not to remain in the employment. And that was the evidence of the applicant in the absence of evidence from the respondent as to any other matters having been said to him by the person who - noted by him of the termination and discussed circumstances of the termination with him. And in my submission, that is evidence of capriciousness on the part of the employer in determining the employment.

PN44

SENIOR DEPUTY PRESIDENT WILLIAMS: I thought it was part of your case that, in effect, the termination was never discussed. That there was never any termination interview. I thought it was part of your case that he turned up at work, sought to return to work. Was put in a room for several hours and not given any work, told to go home, turned up the next day and was told he was going to get a letter.

PN45

MS PARKINSON: Yes, and there was also some evidence from the applicant that he was told, if you cannot drive a truck - you cannot drive a truck, so there is no work for you.

PN46

SENIOR DEPUTY PRESIDENT WILLIAMS: But that was the extent of the - you say that is the extent of the termination interview.

PN47

MS PARKINSON: Yes.

PN48

SENIOR DEPUTY PRESIDENT WILLIAMS: Insofar as could be called on.

PN49

MS PARKINSON: Yes. And that there was no discussion as to opportunities for alternatives or any other matter for the applicant. That was the applicant's evidence. That was contested by the respondent's, Mr Ingledew, but Mr Ingledew was not present at any of those discussions. Now, it is also submitted that the Commissioner was in error in making the determination that reasonable steps had been taken by the respondent, that is, Mr Ingledew in his offices, to find alternatives to the termination of the employment, in the absence of there being any direct knowledge or information as to what steps were taken.

PN50

And in the absence of evidence as to those matters and the opportunity for the applicant to cross-examine those persons who were asserting such steps had been taken, there was a failure to accord the applicant fairness in the proceedings. Finally, your Honour, there is a conclusion, in part, by the Commissioner as to the proportion of work performed by the applicant that involved non truck driving duties. In our submission, the only evidence about the work that was performed was that of the applicant and to say that he principally drove a truck, a heavy vehicle, in my submission ignored - and this is to be found at paragraph 55 of the Commissioner's decision, that finding ignored the evidence that the applicant was not a - that Mr Ingledew was not able to identify just what duties were performed by the applicant at any particular time, and was unable, in his cross-examination, to inform the Commission as to the way in which the labour of the applicant was utilised during any particular day.

PN51

SENIOR DEPUTY PRESIDENT WILLIAMS: Paragraph 55, did you say?

PN52

MS PARKINSON: Yes, your Honour.

PN53

SENIOR DEPUTY PRESIDENT WILLIAMS: That is the reference to the employment of casual.

PN54

MS PARKINSON: I beg your pardon, your Honour.

PN55

SENIOR DEPUTY PRESIDENT WILLIAMS: In paragraph 102 it says that she has reached the conclusion that the majority of the applicant's work involved driving trucks.

PN56

MS PARKINSON: Yes.

PN57

SENIOR DEPUTY PRESIDENT WILLIAMS: And then 104:

PN58

I am satisfied that truck driving constituted the major part of his work.

PN59

MS PARKINSON: Yes, and paragraph 109, the majority of the applicant's work. In my submission, on the evidence that was before the Commission, that conclusion could not reasonably have been come to. In conclusion, there are some matters as to the respondent's submissions that I may wish to address, having heard the respondent, but it is the significant part of this appeal grounds that the objections to the evidence which were made during the course of the proceedings and the indications by the Commissioner that she would, in the course of making the decision, have regard to those objections and, in particular, to the weight of the evidence, did not appear in the decision of the Commission.

PN60

There was no analysis of the respective merits of the evidence that was called for either party and insofar as there was reliance upon evidence, it is submitted that the evidence which was relied upon was largely that of Mr Ingledew, who was not qualified to give the evidence that was sought to be pressed. If the Commission pleases, subject to any questions about the written submission, they are the matters.

PN61

SENIOR DEPUTY PRESIDENT WILLIAMS: Yes, thank you, Ms Parkinson.

PN62

MS PARKINSON: Thank you.

PN63

SENIOR DEPUTY PRESIDENT WILLIAMS: Mr Hull.

PN64

MR HULL: Thank you, sir. There is very little I wish to add to the written submissions before the Commission. I mean, we do say that the Commissioner's decision was one that was a comprehensive one and examined the matters that were before her in detail and does not demonstrate any error with regard either to findings of facts that she makes or any error on any question of law. On that basis we say the leave should not be granted. The attack that has been made on the decision substantially consists of an attack on the quality of the evidence and as I have repeatedly made the point in our submissions, that really needs to be looked at in terms of the manner in which this whole issue was brought to the Commission.

PN65

This is an application where the application said in his application for relief that he was a truck driver. We put the point in our submissions - written submissions before the Commissioner that the respondent ought to be entitled to rely on that. There was no mention that he was anything other than a truck driver until the applicant at the time gave his evidence-in-chief. That came as a surprise to the respondent, but notwithstanding that surprise and an application that was made by the respondent for leave to bring further evidence was rejected. The evidence was before the Commission that my friend says was the only evidence, the evidence of the applicant. That evidence was that he was a truck driver. That the majority of his duties was driving trucks. So - - -

PN66

COMMISSIONER BLAIR: How much weight do you put on, though you say in his application that he was a truck driver, that he did not refer to anything else?

PN67

MR HULL: I do not put weight on the application by way of evidence. I do put weight on that insofar as I say our application to bring further evidence under the circumstances should have been allowed. Now, that is not an issues, however, that we believe was necessary to press following the decision, because clearly the Commissioner took her conclusion from the evidence of the applicant. The evidence of the applicant was, and this is also found in his original outline of evidence, that the majority of his - I don't think he used the word majority in his submissions, but in an answer to a question from me, he applied in the affirmative. That the majority of his duties involved driving a truck.

PN68

Now, what we say - and this goes to the question of inherent requirements and all the way through. We say - and at the outset we say that the Commissioner was entitled to, given the latitude that the Commission in the first instance has given in these matters, that she was entitled to rely on that evidence. The contest between the parties on the issue, and this is the central issue in this matter, was whether or not he was a truck driver, related to the minority of his duties. So we say in terms of whether or not there was a valid reason and whether or not, to the extent that it is relevant, that the principles with respect to the inherent requirement test, we say that they were more than adequately met on the evidence of the applicant.

PN69

But we further say that if this bench is disposed to find otherwise, then it ought to have regard to the fact that the respondent was surprised in this manner and if there was any error at all of the Commissioner, it was to deny the respondent the opportunity to bring direct evidence on these points.

PN70

SENIOR DEPUTY PRESIDENT ACTON: Where was that raised?

PN71

MR HULL: Sorry?

PN72

SENIOR DEPUTY PRESIDENT ACTON: Where was that raised?

PN73

MR HULL: It was raised - the application was raised on the second day.

PN74

SENIOR DEPUTY PRESIDENT ACTON: Can you take me to that?

PN75

MR HULL: Yes, I can. It is at the commencement of the second day, which is found at page 39 on the transcript and continues a few pages past there, where there is argument in support of that from my friend in opposition to that application. In fact, we had with us a statement from a Mr Cross, who was the individual who employed or engaged the applicant and we sought to submit that and we sought a summons for him to appear, because he had declined to appear. We were rejected on both grounds, both counts.

PN76

SENIOR DEPUTY PRESIDENT ACTON: What was the purpose of his evidence?

PN77

MR HULL: The purpose of his evidence was he actually engaged the applicant, initially, and he was the individual - he had - his employment had terminated some time just prior to the - a few months, I believe, from recollection, just prior to the termination of the applicant, but he was the immediate supervisor, if you like, up until shortly before the termination of the applicant. He was involved in discussions with the applicant with respect to his illness and the arrangements that were - well, these are matters of dispute between the parties with the arrangements that followed in one way or another which resulted in - and this is not contested - that the applicant was absent from work on leave without pay for a period of three months prior to his attempt to return to work.

PN78

SENIOR DEPUTY PRESIDENT ACTON: Prior to what, sorry?

PN79

MR HULL: Prior to his attempt to return to work and the Mr Cross that I referred to was the individual who could have provided direct evidence on those matters. Now, we simply say that had we been advised at the outset that there was a contest over the question of whether or not the employment was employment as a truck driver, and we did not call evidence in those circumstances, well, indeed, my friend would have a point. But under circumstances where the application says truck driver, where the submissions did nothing other than to refer to his employment by the respondent, that we are put in an extremely difficult position and one that we are not made aware that this is going to be issuing contest.

PN80

And then, notwithstanding the evidence of the applicant that he was for the majority, a substantial part of his duties were truck driving, which you will find in his written submission, we then find the attack - the principal attack that has been raised in this appeal is on our failure to call evidence. We say it is not necessary for the bench to go too far into that, because we say that the Commissioner - Commissioner Cribb was entitled on the evidence, of the evidence before her, but principally on the evidence of the applicant, to rely on that evidence. Even if she was strictly controlled by the rules of evidence, which she is not, the applicant's evidence in this matter was clear.

PN81

The majority of his work was driving a truck. There was no contest as to his illness. There was no contest on his evidence again that the nature of his illness meant that he would not be capable of driving a truck. He was denied the appropriate licence for driving a truck for a period of at least five years. That was his evidence.

PN82

MS PARKINSON: Well, that is not accurate. He was not denied a licence. In fact, he was still licensed. That is not accurate. He had not been ..... licence.

PN83

MR HULL: Whichever way, sir, you will find that the evidence of the applicant is that he was not entitled to drive. He was not allowed on medical advice to drive a truck for a period of at least five years. His evidence was that that period of five - - -

PN84

SENIOR DEPUTY PRESIDENT WILLIAMS: I think the highest you could put that is that the medical advice was that he should not drive a truck.

PN85

MR HULL: My understanding - - -

PN86

SENIOR DEPUTY PRESIDENT WILLIAMS: No-one was preventing him from driving a truck, I think is the point that Ms Parkinson has made, but I think on medical advice he was not to drive a truck.

PN87

MR HULL: Yes, and I had - and I most certainly apologise. It was not an intention of mine to mislead the bench, but my understanding of that was that that did go to his ability to retain a licence. But if I stand corrected on that, I stand corrected on that, but there is no question that his evidence was that he was not able to drive a truck for a period of at least five years and that was determined a period of five years since his last attack.

PN88

SENIOR DEPUTY PRESIDENT WILLIAMS: But he was able to drive a car.

PN89

MR HULL: He was able to drive a car. He was able to drive other vehicles, yes.

PN90

SENIOR DEPUTY PRESIDENT WILLIAMS: And forklifts and various other things, yes.

PN91

MR HULL: Yes, that is correct.

PN92

SENIOR DEPUTY PRESIDENT WILLIAMS: Whether or not he was employed as a truck driver and whether or not the principal purpose of his employment was as a truck driver, what do you say about the evidence in relation to attempts to find alternative employment within the employer's operation?

PN93

MR HULL: Well, at best, sir - - -

PN94

SENIOR DEPUTY PRESIDENT WILLIAMS: There seems to be a finding of the Commissioner based upon Mr Ingledew's evidence.

PN95

MR HULL: Yes, and that was we were forced to concede it was second hand. That was on the basis of what he did as a general manager, instructing the relevant subordinates to investigate that matter. And he received reports back from them regarding that investigation. Now, whilst it is not evidence at first hand, we do say, sir, that given the latitude that is permitted to a Commissioner, given the Commissioner at first instance's ability to be able to assess the credit of a witness and given that this witness was the general manager of a large corporation and this is an entirely reasonable and ordinary process in which they engage, that she was entitled to give credit to the witness's evidence in that regard.

PN96

SENIOR DEPUTY PRESIDENT ACTON: Where is that evidence?

PN97

MR HULL: That evidence is - I do not know if I can take you directly to it, but I believe it is in cross-examination from my friend. She might be able to help me there.

PN98

SENIOR DEPUTY PRESIDENT ACTON: So you did not lead any evidence-in-chief on the alternative employment issue?

PN99

MR HULL: No, no.

PN100

SENIOR DEPUTY PRESIDENT ACTON: It was raised in cross-examination, was it?

PN101

MR HULL: I believe that is correct, Ma'am. Look, I may be mistaken. I don't have a note of it in front of me and I would have to search the transcript. What we would say, in any event, is the question of the availability of alternative duties is a question that might go to a consideration of whether the termination was harsh. We say, and we say this quite clearly, that that is not a consideration in terms of the validity of the termination where there is a valid reason for it. We are talking about an employee in a fulltime job and whether or not that employee was capable of performing the duties required of him in that job.

PN102

Now, certainly looking to - we are not talking about a workplace injury here either. We are not talking about suitable alternative duties. We are talking about an injury that arose out of the workplace. Now, under those circumstances, yes, one can say, well, the proper and perhaps compassionate thing of an employer who has other opportunities available would be, under the circumstances, to consider what other opportunities were available. We say that those other opportunities were explored, except we were not able to bring direct evidence on the point, but it was certainly the evidence of the general manager that he had those inquiries undertaken and he had received a report back that there was no suitable work.

PN103

He did not investigate it himself, but in any event, the absence, even if it had not been considered at all, and it was, but if it had not been considered at all, that, at best, we say only goes to the question of whether or not the termination under the circumstances was harsh.

PN104

SENIOR DEPUTY PRESIDENT ACTON: When you say you were not able to bring evidence on it, why were not you able?

PN105

MR HULL: Well, perhaps I phrased that incorrectly, your Honour, that we were not able. That we did not. We failed to bring evidence on that point, apart from the evidence of Mr Ingledew. We failed to bring direct evidence from those individuals in the employment of the respondent, who actually undertook that inquiry as to the availability of alternative duties. You know, we failed in that regard.

PN106

SENIOR DEPUTY PRESIDENT WILLIAMS: Would not it be possible to argue that that was something that the respondent should have been aware of as being relevant, not only to the question of unfairness of the termination, but also in the event that it was found to be unfair, the question of remedy?

PN107

MR HULL: Well, not if it does not go to the question of the employee's capacity to perform duties in the position.

PN108

SENIOR DEPUTY PRESIDENT WILLIAMS: No, no, no. Certainly not. That cannot be the case, can it, Mr Hull. I mean, if someone is employed as a forklift driver and suffers an injury which prevents them from being able to work on the forklift, why is not it possible to say, well, no investigation has - notice to whether he could work as a clerk. There is a clerical position at the time available and the person, as part of his duties as a forklift driver, performs some clerical duties. He might well be quite capable of performing as a clerk. I mean, the fact that he can't do the job that he was employed to do does not prevent the - surely the investigation of alternative jobs being available, which he is also capable of doing.

PN109

MR HULL: I do mind, your Honour, that that investigation did take place. The attack is on the adequate - - -

PN110

SENIOR DEPUTY PRESIDENT WILLIAMS: But the evidence of that is the evidence of Mr Ingledew.

PN111

MR HULL: The attack is on the adequacy of the evidence and the extent to which the Commission was entitled to rely on that evidence. That is the attack, but in respect to what I had been putting to the Commission and your response to that, we do say the consideration of the contract of employment is fairly central. It is fairly central in any termination and the contract of employment goes to the duties of the employee. It is from that - it is that that is terminated. That is the - that is what the - that is the consequence - - -

PN112

SENIOR DEPUTY PRESIDENT WILLIAMS: No, he was terminated from employment. He is not terminated from a specific job. He is terminated from employment. He is an employee. He is in an employment relationship and that is what is terminated, at least for the purposes of these proceedings. It is not the job that is terminated, it is the employment that was terminated. And that is what section 170CE(1) says, termination of employment.

PN113

COMMISSIONER BLAIR: Your argument, Mr Hull, goes contrary the range of arguments and decisions of this Commission in regards to whether or not termination was harsh, unjust and unreasonable and what alternatives were available to the employer other than termination. Even in genuine redundancy cases, it goes to an issue of what alternative employment was looked at and was available.

PN114

MR HULL: I do not argue, sir, that that is not a factor that the employer ought to consider. I can only repeat that the extent to which an attack may be grounded on the case of the respondent is of the extent and adequacy of the evidence in that regard and what, again, I say is that the Commissioner, at first instance, was entitled, given the latitude that is given a Commissioner in that position, to accept the evidence that was given to her notwithstanding the fact that it was not given by individuals who were immediately involved in that exercise.

PN115

And that the reasons I believe she is entitled to do so is because of the very nature of the position of the individual who did give that evidence. He was the general manager. He issued instructions for that to occur. He knows that he was able to give evidence to that. He was able to give evidence as to the nature of the response he received. That is the evidence he gave. I think the Commission was entitled, on the basis of that, to conclude that alternatives had been canvassed and had been found to be - that there was no available alternative open for continued employment of the applicant.

PN116

I think in terms of that dialogue between us, I have probably covered all of the matters that I wish to raise, other than to repeat my submission that if the Full Bench is so disposed to grant the appeal, then it ought to be under circumstances where a direction is issued that would enable the responded to bring evidence on the nature of the employment. I do not go to the evidence on the question of alternatives. I think we had the opportunity with respect to that and do not press that point. I do press the point with respect to the opportunity that ought to have been allowed or the chance that ought to have been allowed for the respondent to bring direct evidence as to the nature of the employment prior to the termination. If the Commission pleases.

PN117

SENIOR DEPUTY PRESIDENT WILLIAMS: Ms Parkinson.

PN118

MS PARKINSON: Yes, just two matters for the Full Bench. The references that my learned friend was seeking to be - in relation to the evidence of Mr Ingledew dealing with alternatives is to be found at pages 58 to 61 of the evidence and your Honours will note that at page 58 of that transcript there was an objection recorded to the evidence of Mr Ingledew on the basis that it was hearsay. The objection wasn't seeking to exclude the evidence. The objection was that weight be taken into account and that evidence went to the question of alternatives and Mr Ingledew was cross-examined as to his direct knowledge of those matters as well.

PN119

As to my learned friend's submission that in some way the respondent has been denied an opportunity to be fully heard, might I bring to the attention of the Commission the submissions made at page 40 of the transcript in relation to the matter of the calling of Mr Cross. And they are my submissions. The application that was made by Mr Hull was made at page 39 and it is apparent at page 39 - at paragraph 35 that there had been no subpoena issued. There had been no application for a subpoena to be issued in relation to Mr Cross and, indeed, this is day 2 of the proceedings in the Commission.

PN120

And the application that was made was for him to be heard on a convenient occasion into the future. The application was opposed by myself on the basis that the respondent had not complied with the directions of the Commission at first instance. Had not provided any materials, any written statements, any documentation to the Commission in accordance with the directions of the Registrar when they were first made. The only material that was before the Commission on the first day of the proceedings was the witness statement of the applicant, together with the outline of the applicant's case.

PN121

To the extent that there was any difficulty in the respondent appreciating what the nature of the applicant's case was, it was aggravated by their own failure to put on material in response to the Registrar's directions. And as to the application by my learned friend, in the event that leave granted in this appeal and the Full Bench was inclined to sustain any of the grounds of the appeal, it is a direction that enables the respondent to go back and call further evidence and additional evidence of the nature of the employment as it was entered is opposed by the appellant, on the basis that there is room for the perception that evidence might cured by that step.

PN122

Evidence detrimental to the respondent and, secondly, because the question of whether or not the applicant was or was not employed as a truck driver is not the only, or the fundamental issue in these proceedings and the question of remedy is not impacted one way or the other by such a direction or proceeding. If the Commission pleases.

PN123

SENIOR DEPUTY PRESIDENT WILLIAMS: Thank you for the assistance provided by your submissions. The Commission will reserve its decision in the matter and issue a decision as soon as it can.

ADJOURNED INDEFINITELY [10.55am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #P1 APPELLANT'S SUBMISSIONS PN7
EXHIBIT #H1 RESPONDENT'S SUBMISSIONS PN7