C2001/4135, Transcript of Proceedings [2001] AIRCTrans 2840 (23 October 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS


O/N 0562
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS
SENIOR DEPUTY PRESIDENT LACY
COMMISSIONER O'CONNOR

C2001/4135

APPEAL UNDER SECTION 45 OF THE ACT
BY OSMAN, ABDEL-KARIM AGAINST THE
DECISION OF COMMISSIONER GAY AT
MELBOURNE ON 6 JULY 2001 IN U NUMBER
2000/33682 RE TERMINATION OF EMPLOYMENT

MELBOURNE

10.19 AM, 4 OCTOBER 2001

PN1

MR J. GRAY: I seek leave to appear for the appellant.

PN2

MR R. DALTON: I seek leave to appear for Toyota; with me is MS C. HOLLINGSWORTH.

PN3

VICE PRESIDENT ROSS: Leave is granted in both cases. Can I just raise with you, Mr Gray, at the outset that in the material that was filed, well, certainly my copy and I am advised that of my colleagues, in terms of the appeal books, I am missing some transcript. My transcript gets chopped off. I am sorry, I have now found my transcript, but the only exhibits I have are Mr Osman's. I don't have, well, Mr Carlos, his statement or indeed any of the other material.

PN4

MR GRAY: Yes. Your Honour, there were no exhibits that were tendered through Mr Carlos.

PN5

VICE PRESIDENT ROSS: There was his statement, though, wasn't there?

PN6

MR GRAY: Yes, I am sorry, his statement.

PN7

VICE PRESIDENT ROSS: Yes, that is all I meant. I don't have his statement.

PN8

MR GRAY: I see. Your Honour, I can only apologise. I have only found out just now that the appeal book is deficient in that. All I can do is undertake to get the missing parts of the appeal book to you by lunch time today, sir.

PN9

VICE PRESIDENT ROSS: That would be excellent. Thank you.

EXHIBIT #G1 SUBMISSION OF MR GRAY

EXHIBIT #G2 SUBMISSION IN REPLY OF MR GRAY

PN10

VICE PRESIDENT ROSS: We have had the opportunity to read the Commission's decision and obviously your submissions and certainly the vast majority of the transcript, but in my case, at least, not the last few pages and I have a number of questions that go to matters you raise in your written submission. Do you want to supplement it orally and then I will ask questions?

PN11

MR GRAY: No, I would prefer it is you would ask questions, your Honour.

PN12

VICE PRESIDENT ROSS: Okay. The first one that occurred to me was in relation to the first paragraph and then if you go to 3A. I am just not sure what is put here. It said that the appellant was summarily dismissed for gross misconduct in that he allegedly deliberately or knowingly falsified a WorkCover declaration with the aim of defrauding the company. That is what the company says was the motivating reason, or the reason for termination and you say it was an error on the part of the Commissioner in failing to address the question of whether that reason, in essence, whether that reason was a valid reason.

PN13

In other words, he failed to address the question of whether Mr Osman knowingly or deliberately completed the declaration incorrectly. I am not sure. Are you putting that the question he had to ask himself was the reason the company gave a valid reason? Was he confined to that, as opposed to was he at large to consider in all the circumstances whether the conduct amounted to a valid reason, irrespective of what the company put? I am putting that a bit inelegantly, but - - -

PN14

MR GRAY: No, no, I am putting the first of your propositions there, your Honour.

PN15

VICE PRESIDENT ROSS: That he was so confined?

PN16

MR GRAY: Yes, because that confines - that is a key question both for valid reason, but also in respect of procedural fairness.

PN17

VICE PRESIDENT ROSS: Yes, I see what would follow, that is he finds that - or doesn't deal with the reasons specifically given by the company for termination, but, rather, he finds there was another basis that provided a valid reason for termination, the question would then be was the applicant accorded procedural fairness in relation to the reason the Commissioner found.

PN18

MR GRAY: Yes. Well, I suppose, sir, that might be dealt with by a matter of how the procedure of the running of the case might go. For instance, if an employer were to dismiss for one reason and then subsequently realise that there had been an error in that process and then sought to run the case on a different basis, well, then I suppose in those circumstances, provided the factual scenario was sufficiently close, then that would give the Commission grounds to assess this second grounds for dismissal, but in this particular case, that wasn't - that didn't occur. The company ran its case the whole time on the basis of its letter dated 11 October, the key part of which I have summarised in the first paragraph there.

PN19

VICE PRESIDENT ROSS: Leaving aside for the moment whether on the evidence he should have reached this conclusion, but if there was evidence to support - if you accept that there was evidence to support the view that the Commissioner took, that is that not revealing his engagement in these duties on the form was serious misconduct - now, I see what you say about inadvertence versus misconduct, but I am just trying to, if you like, nail down what is the objection to that finding. Is the objection that, well, even if there had been material before him that showed that he deliberately did not reveal his engagement, that wasn't the question before the Commissioner?

PN20

I am just trying to test whether, are you arguing there is a supplementary or a different error? The first error, as you contend, is that the action of Mr Osman did not constitute serious misconduct. It was a mistake or by inadvertence and you rely on the common law cases for termination. I will come back to that issue in a moment, but that is one question. I understand that. What I don't understand is 3A. Are you saying there that by reaching the conclusion that he reached, he wasn't able to come to that for two reasons? One, you say it was a mistake, not deliberate, therefore couldn't constitute serious misconduct and, secondly, you say in any event that wasn't the question. The question he had to consider was whether the reason the company gave and contended for in the proceedings was a valid reason?

PN21

MR GRAY: Yes.

PN22

VICE PRESIDENT ROSS: Okay, my difficulty then is with the second of those. I understand what you say with the first. It is this. I am not sure I agree that the Commissioner is so confined. Isn't the question really was there a valid reason for termination? Notwithstanding that an employer may contend for a particular reason, if there is a factual basis, an evidentiary basis for determining that there was another reason that provided a valid reason, why couldn't the Commissioner have done that?

PN23

MR GRAY: Well, I suppose the approach ought to be confined to the way in which that line of cases deal with that sort of situation. I can't bring the names of the cases to mind, your Honour, but there are those cases where, for instance, an accountant has been dismissed for one reason, trivial, and then subsequently it has been found that the accountant had been stealing money from the company.

PN24

VICE PRESIDENT ROSS: Yes.

PN25

MR GRAY: And so I suppose the question is - the question in that case was whether the company with reasonable inquiries could have found out about this prior misconduct and so I think that that rule in conjunction, or that approach in conjunction with the approach that the Commission ought to be confined to the very reasons that are given at the time of the dismissal adequately - - -

PN26

VICE PRESIDENT ROSS: I think the cases you are referring to are gathered together in McLoughlin v AMH Holdings.

PN27

MR GRAY: Yes.

PN28

VICE PRESIDENT ROSS: That is an issue about provided it was a reason in existence at the time the decision was made, it can be relied on by the employer subsequently. Here I understand you are contending there is a difference. The employer consistently maintained that Mr Osman was summarily dismissed for the reasons in paragraph 1 of your outline. The Commissioner reached, or framed his conclusion in a different way might be the most neutral way of putting it and you say that he was confined to what the company was contending was the reason. Is that the essence of it?

PN29

MR GRAY: Yes. Sir, I don't think there is any authority on this.

PN30

VICE PRESIDENT ROSS: Well, I think there might be. Can I take you to a decision in Zammit v MM Cables? I will give you a copy of it and it is paragraph 42 that is probably the most relevant and there it was found to be an error where the Commissioner confined himself to determining whether the reason given for the termination was a valid reason and the Full Bench goes on to say:

PN31

The question in 170CG(3)(a) is not so limited. The Commission is obliged to consider whether there was a valid reason for the termination. That inquiry is not limited to the reason given by the employer.

PN32

If the Commission's task is was there a valid reason for the termination, the employer contends one thing, or frames it, arising out of the same course of conduct, but frames it in a particular way, isn't this authority for the proposition that the Commission isn't limited to the way that is put?

PN33

MR GRAY: Yes, provided - well, as you have referred to, there are consequences in relation to procedural fairness that is significant.

PN34

VICE PRESIDENT ROSS: Yes, I accept that. Yes, that would be so. I understand what you say about the inadvertence versus deliberate conduct and can I just go to the common law argument and take you to another case?

PN35

MR GRAY: Sir, I have some binders of these cases to hand up.

PN36

VICE PRESIDENT ROSS: Thank you. I am grateful. Can I just take you to the decision of the Full Bench in Anetta v Ansett Australia? Here an argument was put that there could be no valid reason for termination in cases of summary dismissal unless the employee was guilty of conduct justifying summary dismissal at common law which seems to me to be the essence of what you are arguing. You are arguing both in your main submission and in your submission in reply where you refer, I think, to Macken Js judgment that, well, here the conduct of the applicant didn't constitute or didn't warrant termination because the common law has certain requirements.

PN37

This decision at paras 9 and 10 and I accept that it is an obiter observation because they concluded that the conduct there in any event would warrant termination at common law. I don't mean to pepper you with these cases, Mr Gray, but I think out of fairness I should bring them to your attention.

PN38

MR GRAY: Yes, I can see where this is heading, sir, at paragraph 10. Sir, my reaction to this is that the argument seems to rely on - it is fundamentally supported by the argument that you are allowed to terminate on notice in certain circumstances, but it would not be lawful for that to be a summary dismissal.

PN39

VICE PRESIDENT ROSS: Yes.

PN40

MR GRAY: Well, that, of course, is a concept from the common law.

PN41

VICE PRESIDENT ROSS: Yes. Well, that is their argument.

PN42

MR GRAY: This argument is flawed in that respect in that it is saying in essence that we can't apply the common law test because of this, because of this reason, but this reason is actually an import from the common law in any case.

PN43

VICE PRESIDENT ROSS: Why is it flawed for that reason? They are not saying absolutely the common law has got nothing to do with this jurisdiction. They are saying that under CG(3)(a), if we were to focus our attention on what provides a valid reason, to use that expression, for termination at common law, then, well, at common law all terminations on reasonable notice are lawful, but it is summary dismissal that requires repudiatory conduct.

PN44

MR GRAY: Yes.

PN45

VICE PRESIDENT ROSS: And so it may distort the inquiry in 3A to - there are many cases, as you would know, of termination on notice. If you were restricting 3A to common law concepts, then there would be a valid reason for those terminations on notice, because at common law they would be lawful, at least prima facie.

PN46

MR GRAY: Well, your Honour, I don't say that the general principles in unfair dismissals should totally reflect the common law. I say that the common law is a minimum standard, if you like, and that this beneficial legislation, well, this legislation which is intended to be beneficial to employees ought to operate at a higher level.

PN47

VICE PRESIDENT ROSS: At least this part of it.

PN48

MR GRAY: Ought to operate at a higher level from the perspective of the employee, compared to the common law.

PN49

VICE PRESIDENT ROSS: I see, okay.

PN50

MR GRAY: But I note in the middle of that paragraph that the Full Bench says that they are not convinced that even if the common law tests were applied, it would make any difference.

PN51

VICE PRESIDENT ROSS: No, that is why I say it is an obiter observation. Can I just go to what I think could fairly be described as the thrust of your attack on the decision, if I can put it that way. And it is that this was a case of inadvertence, a mistake was made, he ticked the wrong box, there are two elements to it, there is that one, a mistake was made, it wasn't deliberate therefore it should not have constituted misconduct warranting termination. It is that issue, the second are a range of matters going to procedural fairness considerations.

PN52

Can I deal with the first one. The applicant's evidence in the proceedings before the Commissioner was precisely along the lines you have indicated. The Commissioner makes an explicit finding against the applicant in relation to what took place at the 4 October meeting. This was, you will recall this was a question of whether he had nominated, I think it was 6 October as the date on which he would provide material on getting legal advice in response to what the company had put. And the Commissioner reaches a conclusion which is obviously in conflict with Mr Osmond's evidence, so it can be implied from that he didn't accept Mr Osmond's evidence on that point.

PN53

Why would we interfere with the Commissioner's assessment and in essence a factual finding that grounds his conclusion when he had the benefit of seeing Mr Osmond?

PN54

MR GRAY: Well, sir, he must rely on evidence. Firstly, he does not address himself to this question and - - -

PN55

VICE PRESIDENT ROSS: But he does not accept Mr Osmond, he is not obliged to accept - given that it is ultimately - when you say he must rely on evidence, that is so, but this is evidence about - well, this is an issue of intention, was it inadvertent or was it deliberate?

PN56

MR GRAY: Yes.

PN57

VICE PRESIDENT ROSS: Now, Mr Osmond, is the only one that could give direct evidence on that and he says it was inadvertent. Well, that does not mean just because someone gives evidence about what they say their intention was, does not oblige the finder of fact to adopt that evidence.

PN58

MR GRAY: Certainly not, you look at the conduct in the surrounding circumstances.

PN59

VICE PRESIDENT ROSS: Yes.

PN60

MR GRAY: And the circumstances were that while he was wearing this uniform he was spotted by a supervisor.

PN61

VICE PRESIDENT ROSS: That is right.

PN62

MR GRAY: And then the next day he was video taped.

PN63

VICE PRESIDENT ROSS: Yes.

PN64

MR GRAY: And then it was - - -

PN65

VICE PRESIDENT ROSS: And he was aware of both. Yes.

PN66

MR GRAY: And it was some weeks later when he ticked the box.

PN67

SENIOR DEPUTY PRESIDENT LACY: Several days wasn't it?

PN68

MR GRAY: Yes, I am sorry. Thank you, your Honour, it was some time later that he ticked the box. And he knew at the time that he was completing that form, he had known for some time that the company well knew about his appearance - about his activities there.

PN69

VICE PRESIDENT ROSS: And his explanation is essentially that he did not regard it as work and he took the question which he was to respond to as being paid employment, that is the essence of - - -

PN70

MR GRAY: Yes, that is right. I personally believe it is a perfectly understandable story and - - -

PN71

VICE PRESIDENT ROSS: It is just that the Commissioner did not believe it. If he had h ave accepted it he would not have reached the conclusion he did.

PN72

MR GRAY: Well, you see I do not think it is apparent, I do not think it is apparent from the decision and - - -

PN73

VICE PRESIDENT ROSS: So it is not apparent from the decision that he did not accept the evidence?

PN74

MR GRAY: And this is why - yes.

PN75

VICE PRESIDENT ROSS: And on that basis, therefore, his conclusion must be contrary to the evidence. If he accepted it but nevertheless reached this conclusion, Mr Osmond's evidence being the only evidence on intention, that was the error.

PN76

MR GRAY: That is right.

PN77

VICE PRESIDENT ROSS: I see.

PN78

MR GRAY: And this is why the wording is as it is at paragraph 30 of the decision, not revealing his engagement in these duties on the form. That skates over this question. So the Commissioner is saying, in effect, that he had an affirmative positive duty to ensure that it was right, regardless of whether it was deliberate or inadvertent.

[10.43am]

PN79

VICE PRESIDENT ROSS: Okay. Can I go to 4, paragraph 4, could you expand as to what your point is there, Mr Gray?

PN80

MR GRAY: The declaration was not directly to the employer, but to the insurer.

PN81

VICE PRESIDENT ROSS: I see.

PN82

MR GRAY: And it was never explained how the employer came upon this information. Now, the insurer had its own remedies if it were concerned about that and, in fact, it investigated and took no action.

PN83

VICE PRESIDENT ROSS: Well, they stopped his payments, didn't they?

PN84

MR GRAY: Yes. Yes, but in respect of the actual alleged false declaration. There are proceedings that are available to it under the Accident Compensation Act in respect of false declarations. But yes, they stopped his payments.

PN85

VICE PRESIDENT ROSS: I see.

PN86

MR GRAY: And so that makes it a more remote - I do not say, of course, that it had nothing to do with the employment relationship. It had something to do with it, but it was relatively remote, and this may well explain the delay and the prevarication on the company's part between the time of discovering the activity and then the declaration and then the actual dismissal.

PN87

VICE PRESIDENT ROSS: Okay. In relation - - -

PN88

SENIOR DEPUTY PRESIDENT LACY: Sorry, could I just ask you, in relation then to the paragraph 4.

PN89

MR GRAY: Yes.

PN90

SENIOR DEPUTY PRESIDENT LACY: Does that presume that the act of making representation was a deliberate act or not?

PN91

MR GRAY: No, I think it is regardless of that, your Honour.

PN92

SENIOR DEPUTY PRESIDENT LACY: Whether or not there was a deliberate - - -

PN93

MR GRAY: Yes.

PN94

SENIOR DEPUTY PRESIDENT LACY: - - - attempt to deceive.

PN95

MR GRAY: Yes.

PN96

VICE PRESIDENT ROSS: In relation to the procedural fairness issues, do you challenge the Commissioner's conclusion? This is about where the conflict in the evidence regarding whether at the meeting on 4 October either he said or he responded to a question put to him by one of the employer representatives - - -

PN97

MR GRAY: Yes.

PN98

VICE PRESIDENT ROSS: - - - that well, we want you to provide a written response by 6 October.

PN99

MR GRAY: yes.

PN100

VICE PRESIDENT ROSS: Do you challenge that finding?

PN101

MR GRAY: Well, I am a bit uncomfortable about that, sir, because of this. The way it was put in evidence by Mr Osman and by his cross-examiner was such that the two stories did not actually totally collide. That is, the story of Mr Osman and the story of the company did not totally collide. Mr Osman's evidence was that there was not a date mentioned at the meeting. Now, by that I think it is apparent that he meant there was no date such as 6 July mentioned. That is what he understood by the term, date.

PN102

VICE PRESIDENT ROSS: Well, at para 984 Mr Dalton is saying:

PN103

They said would Friday, 6 October be okay.

PN104

And you said:

PN105

Yes.

PN106

And he replies:

PN107

No, sir, they didn't.

PN108

The next question:

PN109

They said no set date. I can't remember Friday, the 6th of - I never committed to the date of 6 October, never.

PN110

Was 6 October mentioned?

PN111

I don't remember the date 6 October being mentioned.

PN112

MR GRAY: Yes. So he is unsure about that.

PN113

VICE PRESIDENT ROSS: But the evidence of the employer witnesses is that he is consistent with Mr Dalton's cross-examination.

PN114

MR GRAY: Yes, that is right.

PN115

VICE PRESIDENT ROSS: So in what way is - - -

PN116

MR GRAY: Well, Osman understood - Osman is not disputing the fact that Friday might have been mentioned. All he is disputing is that there was the date, the specific date which also was the Friday, being the 6th.

PN117

VICE PRESIDENT ROSS: Yes.

PN118

MR GRAY: That is all he is disputing.

PN119

VICE PRESIDENT ROSS: Okay. Then are you challenging the Commission as finding that he finds that 6 October was the date that he committed to?

PN120

MR GRAY: No, I accept that, but I do not think it is a really - it is a significant issue as to the credit of Osman.

PN121

VICE PRESIDENT ROSS: I see. I see.

PN122

MR GRAY: So I think that conclusion of the Commissioner was well open to him, but I do not think it is an issue of - yes.

PN123

SENIOR DEPUTY PRESIDENT LACY: But in paragraph 988 he goes on to say:

PN124

I never committed to that to the date. It's like I said, 6 October and I said I'll need to seek legal advice. I'll get back to them and like the way I said it was like in the next couple of weeks I'll get back to them.

PN125

So he was disputing also that he was going to get back to them by the Friday.

PN126

MR GRAY: Well, your Honour, I suggest that his memory was not good insofar as he could not remember the precise detail of the meeting at which he was dismissed. And I think that you can read this - you can read his evidence in the way I have submitted it should be read, which is that he did not commit to the specific date, but he cannot remember whether or not he committed to the Friday.

PN127

VICE PRESIDENT ROSS: He seemed to have difficulty recalling the conversation or the message that was left. I think he accepts a message was left for him about attendance at work on the Monday and, say, a note - I have just forgotten the name of the woman concerned.

PN128

MR GRAY: Rehabilitation adviser.

PN129

VICE PRESIDENT ROSS: Yes. Yes.

PN130

MR GRAY: Some such. Yes.

PN131

VICE PRESIDENT ROSS: Yes. And that file note is put through another witness. Yes, paragraph 1404.

PN132

MR GRAY: She was not called.

PN133

VICE PRESIDENT ROSS: Yes, the rehabilitation file note. But my recollection was Mr Osman was not aware of it, and I think he says this at paragraph 409.

PN134

MR GRAY: Yes. Yes, he was not aware of the obligation to be at the plant on the Monday.

PN135

VICE PRESIDENT ROSS: And he says he did not receive any letter to that effect.

PN136

MR GRAY: That is right, yes, he says he got a phone call and he rang back but could not speak to the person.

PN137

VICE PRESIDENT ROSS: Okay. Because I did not have the latter bit of the transcript, Mr Gray, when I was going through this, but in relation to paragraph 8 where you say there were matters not considered, I take it those matters were put.

PN138

MR GRAY: Yes, they were, sir.

PN139

VICE PRESIDENT ROSS: Okay.

PN140

MR GRAY: Yes.

PN141

VICE PRESIDENT ROSS: That was all of our questions, Mr Gray, so if there is anything you want to add you will be obviously able to reply to whatever Mr Dalton puts.

PN142

MR GRAY: Thank you, your Honour.

PN143

VICE PRESIDENT ROSS: Mr Dalton, I might mark your exhibit as exhibit D1.

EXHIBIT #D1

PN144

VICE PRESIDENT ROSS: Again, we have had the opportunity to go through it. You do not need to go take us to it. I only had one issue that I was not sure what your - whether you were putting - well, what you were putting at paragraph 79. Is it Mr Wookie? How do you pronounce - - -

PN145

MR DALTON: Yes, Wookie.

PN146

VICE PRESIDENT ROSS: Okay. My recollection from Mr Osman's evidence was that he made - I think the Commissioner makes the observation there was no record of him ringing, but he says that he rang the plant trying to contact Mr Wookie on that - later that day. Is that right? Or am I getting that confused with the 11th?

PN147

MR DALTON: Yes, I think the evidence was that he had called the - he says he had called the switch and then there were a number of questions put to him to suggest that he could have tried harder, in essence.

PN148

VICE PRESIDENT ROSS: Yes, that is right.

PN149

MR DALTON: That was the effect of his evidence.

PN150

VICE PRESIDENT ROSS: Okay. So it is not - you are not putting that that evidence should not be accepted. You are saying that, well, he did not actually contact Mr Wookie.

PN151

MR DALTON: In cross-examination, of course, I was not able to disprove an attempt by him to contact the switch.

PN152

VICE PRESIDENT ROSS: No.

PN153

MR DALTON: Yes.

PN154

VICE PRESIDENT ROSS: Okay. Is there anything you wish to say to supplement?

PN155

MR DALTON: Your Honour, I am content to rely basically on the written submissions because they are detailed and they provide references to the evidence in the transcript where it supports what I am saying. But I wanted to make some submissions on the question of leave today. There are two reasons why, in my submission, leave should be refused. Firstly, on the normal threshold the Commission is not required to grant leave here, because there is not a matter of public importance that would require the Commission to do so. But linked to that same point and applying the Westend Pallets threshold, which I think is still - - -

PN156

VICE PRESIDENT ROSS: I think that part of Westend Pallets survived.

PN157

MR DALTON: It still survives, yes.

PN158

VICE PRESIDENT ROSS: I am not sure how much of the rest of it survived after McGinnish, but - - -

PN159

MR DALTON: Yes, I noticed actually earlier in my submissions, I said the principles on appeal were well settled. I think that was a fairly optimistic statement, actually, but I - - -

PN160

VICE PRESIDENT ROSS: Well, I take it that - well, would it be generally accepted that reading JF and section 45, 170JF and section 45, the question for us is, was the Commissioner in error. And the error can be an error of fact or law.

PN161

MR DALTON: Yes.

PN162

VICE PRESIDENT ROSS: And to establish leave to appeal the appellant would have to show an arguable case in support of the errors contended for. He has at least agreed to that extent.

PN163

MR DALTON: That is right, and I think that the comments made by the Full Bench in which you were the presiding member is worth noting, in that is a - - -

PN164

VICE PRESIDENT ROSS: I am sure it is, Mr Dalton.

PN165

MR DALTON: It is a substantive test. It is not something that just simply you apply a broad brush, oh, yes, there is an argument there. Perhaps if I read the extract on that point specifically:

PN166

The requirement for an arguable case of either legal error or the discretion has been miscarried will mean that the appellants must demonstrate that their case has a reasonable prospect of success. This requirement will be rigorously applied in order to ensure that the standing and purpose of Commission proceedings at first instance are not diminished by automatic or unwarranted access to an appeal bench.

PN167

So is a substantive test and it is one, in my submission, that is not met here by the appellant. The second reason is picking up on - I think it was mentioned at paragraph 3 of the written submissions - if there is a public interest raised in this case, I think it is actually that leave to appeal should be refused because of the way in which this matter has been brought before the Full Bench. And to elaborate on that argument, you would need to have a look at the circumstances in which Commissioner Gay decided to determine this case. If you look at the transcript of 31 May you will see that he said:

PN168

Look, essentially, given the workload issues -

PN169

he was saying to the parties, look, I'm in a position, I think, later this afternoon to give an indication of my decision and the reasons for that in an abbreviated form. Obviously the parties have a right to seek full reasons. However, if I am going to provide full reasons, it is going to take much longer for me to do that. Now, he also invited the parties to say, look, you know, unless there is an objection I propose to adjourn. Now, there is silence by both parties on this and it seems to me from the transcript it can fairly be said that the parties consented to that course.

PN170

So the matter then came back at about 3.30 later that afternoon and Commissioner Gay then handed down his decision, in inverted commas if I could say it, at that time. Now, no request for reasons under rule 46 was ever made by the appellant and five weeks later after 31 May on 6 July Commissioner Gay then, I think properly in my submission, recorded his decision formally in writing by recording the indication of reasons that he had given on transcript on 31 May in the absence of a request for full reasons.

PN171

COMMISSIONER O'CONNOR: That would be his only error, wouldn't it? That would be his only error in handing down a written decision when it was not requested.

PN172

MR DALTON: Well, I think that - well, that perhaps may be the case, but I think that the reason why I am saying properly, in my submission, is that there is a record of the decision and an order dismissing the application perhaps for finality for the Commission record. But yes, I guess the argument could also be said, well, given that the parties consented to that course, that determined the matter.

PN173

But in any event, this is a second limb objecting to leave being granted in this case, simply because the appellant is effectively asking the Commission that is busy to have three members sit here and exercise appellate jurisdiction to review a decision which was expressly made on the basis of what Commissioner Gay set out on 31 May and in circumstances where no request for reasons was ever made.

PN174

VICE PRESIDENT ROSS: Is the appeal out of time?

PN175

MR DALTON: I do not think so, because the order was not recorded in writing until 6 July.

PN176

VICE PRESIDENT ROSS: I see.

PN177

MR DALTON: I have not taken that point.

PN178

VICE PRESIDENT ROSS: So he did not actually order in transcript that the application be dismissed?

PN179

MR DALTON: I will have to check that, Commissioner.

PN180

VICE PRESIDENT ROSS: The reason I raise it is that sub-rule 11(2) talks about the appeal being instituted before the end of 21 days after the date of the award, order, decision or opinion appealed against. If you are talking about - and then (b):

PN181

If the request for a statement of reasons has been made, then 21 days after the statement of reasons is given.

PN182

Here, there is a decision made in transcript which is subsequently reduced to a formal decision.

PN183

MR DALTON: Yes.

PN184

VICE PRESIDENT ROSS: But does not - if he actually ordered in transcript the application to be dismissed, isn't that from when it would run?

PN185

MR DALTON: Well, certainly, if you look at paragraph number 2572, Commissioner Gay does decide to dismiss the application. He says:

PN186

The application must, therefore, be dismissed.

PN187

That is the last line in transcript.

PN188

VICE PRESIDENT ROSS: Yes.

PN189

MR DALTON: The appeal is the appeal against an award or order.

PN190

VICE PRESIDENT ROSS: Yes. Well, an order does not need to - well, there is plenty of authority about the form of an order and you can make an order in transcript: I order accordingly, or even absent the word, order.

PN191

MR DALTON: Well, I have certainly approached this appeal on the basis that that argument of out-of-timeness would not be able to be made unless the order had been formally made, and obviously - - -

PN192

VICE PRESIDENT ROSS: It is not - it would not be without - - -

PN193

MR DALTON: - - - if I am wrong on that, then - - -

PN194

VICE PRESIDENT ROSS: Yes, I do not think it is without debate, but - - -

PN195

COMMISSIONER O'CONNOR: It is an order, decision or opinion.

PN196

VICE PRESIDENT ROSS: Yes, but it is the order that is appealed.

PN197

MR DALTON: Sorry, what section is that, your Honour? Is it 170 - - -

PN198

VICE PRESIDENT ROSS: Section to what?

PN199

MR DALTON: The order, decision or opinion.

PN200

VICE PRESIDENT ROSS: I think this is sub-rule 11(2).

PN201

COMMISSIONER O'CONNOR: Sub-rule 11.

PN202

MR DALTON: Yes. I thought that that may have been used distributively because section 45 talks about appealing against various things such as a decision in relation to an industrial dispute, which it is not.

PN203

VICE PRESIDENT ROSS: Yes.

PN204

MR DALTON: So here it is an appeal against an order.

PN205

VICE PRESIDENT ROSS: Yes.

PN206

MR DALTON: So I guess I was being conservative in the approach on that.

PN207

VICE PRESIDENT ROSS: Yes. Well, it is - - -

PN208

MR DALTON: It clearly is out of time if the - if it can correctly be said that the - that last line in transcript is the - - -

PN209

VICE PRESIDENT ROSS: Well, that is what it would turn on.

PN210

MR DALTON: - - - decision or order.

PN211

VICE PRESIDENT ROSS: Yes. Well, it is the order because JF provides for the appeal against the order. It is really whether - - -

PN212

MR DALTON: That is its order, that is right.

PN213

VICE PRESIDENT ROSS: Yes, it is really whether that section of the transcript constitutes the order.

PN214

MR DALTON: An order, yes.

PN215

VICE PRESIDENT ROSS: Yes.

PN216

MR DALTON: Yes, and I had some doubts about whether it was actually an order, given the definition of an award and an award or order.

PN217

VICE PRESIDENT ROSS: Yes, but that excludes - - -

PN218

MR DALTON: And the requirements for that to be - - -

PN219

VICE PRESIDENT ROSS: That excludes an order under Division 3 of Part VIA, that definition.

PN220

MR DALTON: Yes, your Honour.

PN221

VICE PRESIDENT ROSS: Look, I am certainly not suggesting that it is clear one way or the other. There are cases that certainly address the question. In any event, if we found there was a substantive point in the appeal such that we were moved to grant leave and uphold the appeal, it is unlikely that we would then not exercise our discretion to extend time if that was necessary.

PN222

MR DALTON: Yes, your Honour. Perhaps if I can then just refer back to the second point against granting leave. It raises particular difficulties as to how the Full Bench is to deal with this. If, contrary to the submissions that the company is putting, the Commission is of the view there is a reasonable argument on one or more of the grounds advanced by the appellant, how does the Commission go about it in light of the fact that Commissioner Gay made it clear that was he was doing was giving abbreviated reasons for his decision. It puts the Commission in the invidious position of having to review an incomplete decision in circumstances where the appellant did have the opportunity to request full reasons. So for that reason I do say that leave should be refused.

PN223

Parties should not be encouraged or allowed to advance appeals in those circumstances. They should first seek full reasons. In essence, the appellant is asking the Full Bench to provide those full reasons, assuming that there is a substantive ground to advance here. Your Honour, if you don't have any further questions in relation to the written material, I don't propose to take any more of the Commission's time. If the Commission pleases.

PN224

VICE PRESIDENT ROSS: Thank you. Mr Gray, I neglected to ask you earlier, before you come to deal with the specific matters raised, but you will find it towards the back of - on page onwards of Mr Dalton's submission, there is a summary of the facts. Do you take issue with any of those? I think Mr Dalton identifies where there is a dispute in the evidence. For example, para 103, 6 October questions.

PN225

MR GRAY: I just might take a minute to review that, sir.

PN226

VICE PRESIDENT ROSS: No, no, certainly, I am only asking for selfish reasons, Mr Gray.

PN227

MR GRAY: Yes.

PN228

VICE PRESIDENT ROSS: It is often easy for decision writing purposes if there is an agreed summary.

PN229

MR GRAY: Yes, at paragraph 92, the second sentence. That reads:

PN230

From the date of injury to the dismissal the respondent made repeated attempts to return the applicant to work.

PN231

VICE PRESIDENT ROSS: Yes.

PN232

MR GRAY: That is contested. In fact, I might add the dismissal took place at a time when there was an expectation. You will recall that that Monday when Mr Osman was meant to be at work, or was intended to be at work, the reason why he was meant to be there was so that an orthopaedic surgeon could assess his workplace.

PN233

VICE PRESIDENT ROSS: That is right, yes.

PN234

MR GRAY: And subsequently that surgeon found that he should go back to work. Yes, the question about that - Mr Osman's attendance at work is dealt with in the second sentence in paragraph 99. And that disagreement is noted.

PN235

VICE PRESIDENT ROSS: Yes.

PN236

MR GRAY: Paragraph 102 is really about - I cannot comment about that, sir, because that is about internal process of the company. Although he certainly received the letter. And in respect of paragraph 104, I am not sure what status this event has where you are dismissed and then given an opportunity to revive your employment. I do not know - I cannot comment on that, of course.

PN237

VICE PRESIDENT ROSS: No, I am not sure what - - -

[11.10am]

PN238

MR GRAY: Yes, so other than that, yes, it is agreed, sir. With respect to the reasons - the request for the reasons - it is, as I am instructed, true that a request - a formal request that the Commission gave was not made. However, I think you might infer from the fact that he gave reasons, he gave written reasons, he was not satisfied that the - what he had said at the conclusion of the proceedings amounted to an order. And so for that reason, and I assume out of reasons of fairness to the parties to give them the opportunity to appeal if need be, Commissioner Gay provided written reasons. But putting that aside, your Honour, there is evidence I would like to bring about the need to extend time for the appeal if need be.

PN239

I know this is unsatisfactory but I can say that I made a request to Maurice Blackburn to request written reasons shortly after the proceedings had concluded.

PN240

COMMISSIONER O'CONNOR: Within the seven days?

PN241

MR GRAY: Yes. It was the very day or the next day and that obviously didn't occur and so if the appeal were to fail on that grounds then - - -

PN242

VICE PRESIDENT ROSS: Well, can I put it this way, that if the appeal were to fail on that ground we would provide both parties with a further opportunity would be the fairest way of dealing with it.

PN243

MR GRAY: Yes.

PN244

VICE PRESIDENT ROSS: If we have to - yes.

PN245

MR GRAY: In relation to the arguable case I think if you look at the appellant's submission and the reply there has been no difficulty formulating our argument. It does go right to the core of the decision making that the Commission at first instance was obliged to make and it does raise this broader question of what role do the Workplace Relations Regulations at 30C(a) play in respect of the unfair dismissal procedure. And it raises this difficult and very important question about what is the definition of serious misconduct.

PN246

SENIOR DEPUTY PRESIDENT LACY: That is a conclusive definition in regulation - it isn't - - -

PN247

COMMISSIONER O'CONNOR: Regulation is described - - -

PN248

MR GRAY: I am sorry, your Honour.

PN249

SENIOR DEPUTY PRESIDENT LACY: That is an inclusive definition.

PN250

MR GRAY: Yes.

PN251

SENIOR DEPUTY PRESIDENT LACY: Yes. It doesn't detract from the possibility of other - there being some conduct constituting serious misconduct.

PN252

MR GRAY: Certainly. However, there is no good - there is no apparent reason to depart from that. That does cover - it is inclusive in its wording but in its effect - sorry - inclusive in the drafting format but in its effect it coincides with the common law and this is what I contend for in this appeal, your Honour, and that is that people ought not be dismissed summarily for cases of minor inadvertence which have minor, if any, consequences upon the employer.

PN253

VICE PRESIDENT ROSS: There being nothing further we will adjourn and reserve our decision.

ADJOURNED INDEFINITELY [11.14am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #G1 SUBMISSION OF MR GRAY PN10
EXHIBIT #G2 SUBMISSION IN REPLY OF MR GRAY PN10
EXHIBIT #D1 PN144