C2347/000, Transcript of Proceedings [2001] AIRCTrans 59 (22 February 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT MARSH
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER CARGILL

C NO 23470 OF 2000

APPEAL BY GRAINCORP OPERATIONS
LIMITED AGAINST A DECISION DATED
4 OCTOBER 2000 BY COMMISSIONER
REDMOND IN U NO 20230 OF 2000

SYDNEY

10.00 AM, WEDNESDAY, 7 FEBRUARY 2001

ADJOURNED SINE DIE

PN1

SENIOR DEPUTY PRESIDENT MARSH: May I take appearances

PN2

please?

PN3

DR J. MURPHY: May it please the Commission, I seek leave to appear for the appellant.

PN4

MR R.S. WARREN: If the Commission pleases, I appear by leave for the respondent Mr Vallette.

PN5

SENIOR DEPUTY PRESIDENT MARSH: Thank you, Mr Warren. Before I call you, Mr Murphy, a couple of housekeeping matters if I can use that term loosely. Firstly, the Commission is in receipt of written submissions which have been filed in accordance with directions given. I'll mark them. I'll mark the appellant's written submission M1 and the respondent's W1 for convenience.

EXHIBIT #M1 APPELLANT'S SUBMISSIONS

EXHIBIT #W1 RESPONDENT'S SUBMISSIONS

PN6

SENIOR DEPUTY PRESIDENT MARSH: The second matter is that we note at page 3 of the transcript before the Commissioner that he raised the issue of the application being out of time and he clarified before the parties that the lateness of the application was not an issue, particularly with the respondent before him. The Commissioner appears to have overlooked his clear intent at that time which was to accept the application and give effect to that by way of an order under 17CE8 of the Act.

PN7

It may be appropriate if the Commissioner now issues an order with a retrospective operation to give that jurisdiction underpinning to the application and if there's no objection to that course of action then that will occur and the order will be placed on the file. Has any party got any comment to make?

PN8

MR MURPHY: We have no objection to that course.

PN9

MR WARREN: No, thank you.

PN10

SENIOR DEPUTY PRESIDENT MARSH: Thank you. Yes, Mr Murphy?

PN11

MR MURPHY: May it please your Honours, Commissioner, if I may remind the Commission of some of the basic background facts of this case. On 22 July 1999 the respondent left his place of work which at that time was the Premer Silos in the north west of this state. He drove a company truck from the silos back to his home town at Ulamambri, a distance of some 40-odd kilometres. Before reaching Ulamambri, he drove the truck on to the wrong side of the road and then off the road completely. The truck rolled an unknown number of times before it came to rest. He received some injuries in that crash. He was taken to Coonabarabran Hospital where he gave a blood sample which later disclosed a blood alcohol reading of 0.265 and the accuracy of that reading has not been challenged by the respondent.

PN12

The Commission will know that that is more than five times the legal blood alcohol limit for a person driving a motor vehicle in this state. Could I ask the Commission to turn to page 134 in the appeal book so that we might demonstrate the significance of that high range reading? This is part of the materials that were tendered from the Federal Office of Road Safety dealing with the effects of alcohol on one's capacity to drive. At page 134 there is a graph which discloses that at 0.05, and I should make this clear, 0.05 is sometimes referred to as the legal limit. That's a misnomer, 0.05 is perhaps the illegal limit, and if you're 0.05, you're breaking the law, but at 0.05, according to this material:

PN13

Your risk of being involved in a road crash is doubled the risk if you are unaffected by alcohol.

PN14

but then it goes up exponentially. At 0.1, the risk is seven times as high. At 0.15, and it is expressed in these terms:

PN15

Your relative crash risk is a huge 25 times more than if you had not been drinking at all.

PN16

You will see that there is no estimation given beyond 0.16. Looking at the graph and the way it goes up exponentially, to get to a reading of 0.265 you would have to come out to the right side of that graph another good inch and following the curve, the conclusion is and we put this submission below and it was not challenged, the conclusion must be, that to drive with a blood alcohol reading of 0.265 means that a crash is a virtual certainty. It's not a question of probability, it's a question of certainty. As I said, that wasn't challenged. It's a miracle that the respondent didn't kill himself by his conduct on that evening. It's an even greater miracle that he didn't kill other entirely innocent people travelling along that road that evening.

PN17

You will hear reference to policies or lack of policies about use of company vehicles, about policies concerning the consumption of alcohol or lack of such policy. At the end of the day we say those issues are really non-issues. No employer should need to have a written policy telling employees who are engaged as drivers that they do not drive a company vehicle or indeed any vehicle when they have consumed sufficient alcohol to have a reading of 0.265. Employers can't be criticised for not having signs up in the depot, "Don't do that". It's obvious that you don't do that. It's against the law. It's a gross violation of the law. In this state, higher range blood alcohol levels commence at 0.15. On this occasion, the respondent was 0.115, itself a significant reading on its own, but 0.115 above the high range mark.

PN18

What he did, we say by way of analogy was akin to a person taking a loaded shotgun into the street, closing his or her eyes and pointing it randomly and pulling the trigger. What he did was as reckless and as dangerous and as threatening to the life and safety of others as pulling the trigger of a shotgun in the manner I have described but you don't find employers being criticised in this Commission or in other jurisdictions for failing to have policies telling employees not to do such reckless and dangerous acts. I take it that the members of the Commission have had the opportunity to read the submissions.

PN19

SENIOR DEPUTY PRESIDENT MARSH: Yes, we have thank you.

PN20

MR MURPHY: Might I then deal with some of the matters raised in the submissions filed on behalf of the respondent? At paragraph 4, and these submissions helpfully cross-reference back to our submissions and it might help if I give you the relevant paragraph numbers. There's a criticism of our submissions at paragraph 3 to the effect that there was some inconsistency in the evidence as to how much alcohol the respondent consumed. Set against this is, "this is incorrect" that the respondent admitted that he had consumed sufficient alcohol to return the reading that he did. We say this submission is not incorrect at all, and indeed this has relevance not only to the question of how much alcohol was consumed but indeed the credit of the respondent and we'll be making a submission as to that in due course.

PN21

Could I ask the Commission to turn to appeal book page 111? This was a statement which commences at page 110 which was given to an investigator engaged by my client to conduct an investigation into the accident and this is one of those situations where the term, "Accident" is entirely insufficient to describe what happened but I'll stay with that term. There was an investigation into the accident consequent upon a workers compensation claim and at page 111, a witness says this, and I'd ask the Commission to keep in mind this statement was given and we have no indication other than that it was given freely.

PN22

It was given on 2 August 1999 before the respondent's blood alcohol reading had been made to him or anyone else. Apparently the blood sample had been sent to the police laboratory at the time of the accident on 22 July but at this stage the result had not been returned and keeping that in mind, the appellant stated this in his statement - paragraph 8:

PN23

While I was at the Premer Hotel I drank three full strength schooners of beer. This would have been over a period of one hour ...(reads)... I had not had anything else to drink since I had drunk the three schooners at the pub earlier in the night.

PN24

That's part of the evidence as to how much he had to drink. Obviously that story needed some serious modification when the blood alcohol reading became known. At page 15 of the appeal book. This is evidence given in chief at about point 8 of the page. My learned friend asks Mr Vallette:

PN25

Also in that statement you say that the afternoon on the day of the accident you had three full strength schooners of beer. Your evidence is that you certainly had three full strength beers didn't you.

PN26

and I think this is sort of put on the theory that if you had 30 then you had 3 and that sort of strained logic appears on a number of occasions in the case of the respondent. He's asked:

PN27

Your evidence is you certainly had full strength beers, didn't you?---Maybe more, yes maybe more, maybe substantially more, yes, maybe more than three, yes.

PN28

and then under cross-examination at page 20, about point 9 he's asked,

PN29

You were asked some questions about the amount of alcohol you had consumed prior to the accident, I think it was on 11 July, that should be 22 July of last year, ...(reads)... Were you only drinking beer on this day?---That's all I drank, yes. You weren't drinking spirits?---No. Did you ever drink spirits?---Sometimes.

PN30

Then further down,

PN31

On this occasion, after this accident, you recorded a reading in excess of five times the legal limit,...(reads)...no need to go on with that kind of questioning.

PN32

And then going over to page 24, he then cross-examines him in relation to the statement that he gave the investigator which I have taken the Commission to. He is referred to paragraph 8:

PN33

Do you see that?---Yes. When you made that statement, your intention was to tell Mr Townsend that that was all you had drunk, wasn't it?---Yes but I was wrong...(reads)...you admit now on your oath that you wrong, you have already done that haven't you?---I don't know.

PN34

If that doesn't constitute some inconsistency in the evidence, and this is all the evidence of the respondent and no-one else, as to how much he had drunk on that particular day, then one wonders what would constitute inconsistency. In paragraph 5 of the appellant's submission there's a reference throughout paragraph 10 and this goes to the issue or our submission to the effect that he could give Mr Lloyd, the relevant manager in the area, no reason why his services should not be terminated and we are criticised for saying that, we are told that that's simply incorrect. It's said that the respondent was directed by Mr Lloyd by telephone to give him reasons why his employment should not be terminated and he gave two reasons and those reasons appear in the witness statement of the respondent which commences at page 65 of the appeal book.

PN35

This was something apparently that was prepared shortly before the hearing and I understand it was filed. I only saw it in the morning of the hearing before Commissioner Redmond in Tamworth and we make no complaint about that but the Commission ought to have some understanding as to the recency of this witness statement. At page 67 this question of reasons why he should not be sacked is touched upon, 27.2, he says:

PN36

Mr Lloyd then said "I will see you in a weeks time or so but you will have to come up with some good reasons because you are going to be sacked."

PN37

Now, there's some issue as to the words that were used but I think the meanings of the two versions are not that far apart. He was certainly asked to provide reasons or a reason why he shouldn't be sacked. According to him in this statement he says a week later - I think that handwritten notation is in by agreement. He says that he told Mr Lloyd this:

PN38

There is a bloke from Moree who worked for Graincorp, he got booked for DUI whilst working for you. He kept his job and wasn't there someone from Dubbo who injured someone whilst at work and that person had been drinking.

PN39

It said these are the reasons that he put forward which, as I understand the submission that's put against us, should have resulted in his employment not being terminated. The short answer to that is even if the evidence of the respondent be accepted that that's what he said to Mr Lloyd. Our position is that those so called reasons are not reasons at all, but there was someone who got booked for DUI and some person in Dubbo who did something else.

PN40

There was no evidence put forward by the respondent as to the detail of that. I think Mr Lloyd's position was that those incidents had occurred prior to him assuming his role and that's as far as the matter went. Now we would maintain our position that he put forward no reason or, at least, in reference to the criticism that's made, he put forward no sufficient reason as to why he shouldn't be sacked. He was given an opportunity and the reasons, if they be reasons, were considered to be entirely insufficient.

PN41

This relates to a matter that I'll be coming to shortly that there's some suggestion in the decision that there was some lack of understanding on the respondent's part as to why he was being considered for termination, that he wasn't aware of what it was that had led to him being considered for termination. Indeed I think there was a positive finding in the decision that my client had offended under section 170CG, subsection 3(b). We will deal with that in due course but nobody could have been under any misapprehension following what had occurred on 22 July as to why they were being considered for termination.

PN42

Certainly, this respondent was under no misapprehension. When he was asked to provide a reason he identified what he believed to be two other employees who were driving vehicles, whilst affected by alcohol who hadn't been sacked. So he knew exactly why he was being considered for termination and indeed, in his application to this Commission part of which it appears at page 6 and this was completed by him on 7 March last year in the section requiring a brief summary of the reasons given for termination.

PN43

Now, keep in mind there's a complaint made later that the letter enclosing details of his termination payment, which apparently went to a wrong address and we're criticising that as well, contained no reason, no statement of reason in it. So even had he had the letter at this stage when he filled out this form and he didn't have it, that letter would not have assisted him in understanding any better than he did why he was sacked. But, he knew because he said, "For driving outside work hours with a high rate of PCA and causing damage to a vehicle/truck owned by Graincorp." He had an entirely adequate understanding.

PN44

Not only of why he was being considered for termination and he responded, we would say, appropriately in offering the reasons that he did. That response certainly disclosed his clear understanding, he responded appropriately though inadequately. He certainly understood why the decision was made to dispense with his services. How could anybody be under any misapprehension about that?

PN45

SENIOR DEPUTY PRESIDENT HARRISON: Mr Murphy, all of that might be right but it is not the inquiry that the statute required the Commissioner to undertake. That inquiry was whether the employee was notified of the reason the employer had and employer says was the valid reason for sacking him. As I read the evidence, he was not notified of the reason that Mr Lloyd gave in his evidence for terminating the applicant's service.

PN46

MR MURPHY: Your Honour, with respect there's got to be a practical limitation to this.

PN47

SENIOR DEPUTY PRESIDENT HARRISON: Well, lets just stay with the words of the section. Is it correct to say that the evidence does not - is it correct to say that on the evidence, this employee was not notified of the reason that Mr Lloyd gave in his evidence, as being the reason he sacked him?

PN48

MR MURPHY: In terms that's probably the position that it advises on the evidence. But, your Honour, as I said before there is a practical limitation to this. The reason that that provision is in the Act and it does have a practical purpose, the reason that that provision is in the Act is that people understand why they're being considered for termination and have an opportunity to deal with that and respond. That's why it's there.

PN49

Now, it's entirely superfluous when someone understands precisely why they're being considered for termination, that they be notified in terms. It would have added not one iota of additional knowledge had he been told by Mr Lloyd that you're being considered for termination for inappropriate use of a company vehicle whilst under the influence of alcohol, which was the reason given for the termination in response to questions by my learned friend.

PN50

Had he been told that, it would have added nothing to his state of mind, to his knowledge or to his capacity to deal with the situation at all. So, if there is a failure to comply and I remind the Commission with respect that these are matters that the Commission considers in an unfair dismissal application, they're not prescriptive. A technical failure does not render the dismissal unfair in a case where everybody, including the respondent knew very well, precisely why he was being considered for termination.

PN51

SENIOR DEPUTY PRESIDENT HARRISON: I didn't ask you about considerations that might be relevant later on in subsection (e), or whether having made all of the inquiries that the statute requires of the member whether, nonetheless, a dismissal is harsh and just and reasonable. All I asked you was whether he was notified of the reason and that is a finding, namely that he wasn't notified of a reason, clearly open to the Commissioner to have made. Is that correct?

PN52

MR MURPHY: We would accept that, your Honour.

PN53

SENIOR DEPUTY PRESIDENT HARRISON: Yes, thank you. You should not assume by my narrow question which relates solely to 170CG(3(b), I disagree with the other issues that you say are relevant, not being able and in fact, properly to be considered under other subsections.

PN54

MR MURPHY: I'm pardoned by that, your Honour, because at the risk of being repetitive the failure to notify did not prejudice or disadvantage the respondent in any way, he knew exactly what was going on. He attempted to deal with it on the basis of that knowledge. His attempt to deal with it was regarded as insufficient. Accepting there is or may be a technical breach, could I ask the Commission to pay regard to this passage of the evidence, commencing page 44, about point 7, my learned friend says - and this is Mr Lloyd being cross-examined:

PN55

Now, you agree don't you that whatever time that was given whether it be the 12th or the 19th, it's a reason why you should not terminate Mr Vallette, isn't it?

PN56

This relates to some earlier evidence about him putting forward the issue of other people that had been involved in drink driving situations. He is asked to put the question again:

PN57

Mr Vallette says to you he knows that two people who were employees of Graincorp ...(reads)...I believe he was offering a reason on that, yes.

PN58

So we say two things about that, to the extent that a reason or an attempt to proffer a reason was made, that reference to two other people in circumstances about which we know very little was entirely inadequate, but it does disclose - going back to the discussion I just had with Deputy President Harrison - that at the time he was being considered for termination, he knew precisely why that was happening.

PN59

At paragraph 6, this is W1 respondent's submissions. The issue of the termination letter - perhaps I can do this fairly quickly - the letter itself is set out at page 62 to 64. There was an attempt made to elevate this to some important issue. I must say that the purpose of all that is really lost on me, although the Commissioner has picked up on it in his decision. The letter itself is addressed to Mr Vallette at 3 George Street Coonabarabran, and going back to page 45 of the transcript, there's a cross-examination starting at about point 5 and that is to how it was that that letter was sent to that address, and Mr Lloyd at about point 8 over the page, deals with it in these terms:

PN60

The address that that would have been sent to would be the address Mr Vallette gives us to go in the payroll system ...(reads)...on numerous occasions.

PN61

Now how this becomes an issue of any importance is really lost on us. It wasn't challenged that Mr Vallette did move from place to place, from time to time. Indeed, when the hearing was on, I think at the outset of his evidence or at some point, he indicated that he was living at Coonabarabran at that time. So he's moving around, he's a moving target, and if the letter happens to miss him, so what? It's really a non-issue.

PN62

The real issue is that this is a failed attempt to establish that there was some lack of understanding on the part of the respondent as to the reason for his termination. The fact that the letter of termination, then stating terms why he was sacked and the fact that it was apparently sent to an address he no longer resided at, is being erected, as we understand it, in an attempt to demonstrate that there's some lack of understanding on the part of the respondent as to why he was terminated.

PN63

Now in our submission, this is a much more important issue than the failure to notify in terms a reason for the genuine lack of understanding at the time he was terminated. Clearly he couldn't have been in a position to respond appropriately, although as I've indicated he did respond and we would say, appropriately but inadequately. If I can take the Commission to some of this, commencing at page 39 of the Appeal Book. At about point 7 on the page, this is cross-examination of Mr Lloyd, he's asked:

PN64

Well, why did you terminate him? ...(reads)...under the influence of alcohol.

PN65

Now the last part of that, the, "under the influence of alcohol", is a very important aspect of this, because it wasn't only under the influence. It was so far under the influence it was a certainty that he would crash. So the, "under the influence of alcohol" part of this answer is very important. He's then asked:

PN66

Where have you said that?---I haven't. ...(reads)... on your evidence now, that you're terminated for inappropriate use of company vehicle?

PN67

Now, with the greatest of respect to my learned friend, that's a misstatement or at least an entirely inadequate statement of the evidence given on the previous page. He has forgotten, apparently, when asked that question, the reference to, "whilst under the influence of alcohol". Down here is "Mr Murray", I can assure the Commission it was me, and I objected to it. I said:

PN68

I object to that. That's not based on the proposition of the other court. ...(reads)..."Mr Vallette knew why he was terminated".

PN69

Blind Freddie would know but it is clear in this case that Mr Vallette knew. He has asked to attend to the question:

PN70

Up until now you have never told Mr Vallette that have you?---Mr Vallette knew I was terminated

PN71

and the Commissioner said:

PN72

No, answer the question. My friend, let's have a third go at it. Up until now you have never told Mr Vallette that have you?---I don't believe I have, no.

PN73

and the Commissioner says this,

PN74

So, he couldn't have responded to the reason why he was terminated, is that right? If that was the reason he was terminated then he wasn't given the opportunity to respond.

PN75

and Mr Lloyd says,

PN76

Mr Vallette knew why he was terminated and he had the opportunity to respond

PN77

The next statement is not that of my learned friend, Mr Warren, it is in fact the Commissioner himself saying this and the transcript is in error. The Commissioner said:

PN78

He couldn't have known if you never told him ...(reads)... The objection will be noted.

PN79

We say that interchange discloses a particular view, that seems to have been adopted by the Commissioner which we say affected the decision with error, and a very important error. It may well be that the failure to notify in terms the reason for termination constitutes or does not accord with subsection 3(b) of 170CG. That may well be so, but it is a quantum leap to go from that to say, as the Commissioner did, if that was the reason he was terminated he wasn't given the opportunity to reason. I think he was saying he wasn't given the opportunity to respond to that reason.

PN80

Indeed he says in the sentence immediately above that. So he couldn't have responded to the reason he was terminated. Now that doesn't follow as a matter of logic. But in this case cannot stand with the evidence of the respondent himself and yet there is a finding to that effect and it's not just a technical finding in relation to subsection 3(b). There is a positive finding that he wasn't in a position to respond to the reason for his termination and this appears at the top of page 163, the last page of the decision.

PN81

I find that Mr Lloyd never put to the applicant the reason for termination and therefore the applicant could not respond.

PN82

Now that is entirely consistent with the expression of the view that appears at page 42 to which I objected and without wishing to be disrespectful about this, that objection was well founded. It just does not follow that a failure to put in terms the reason that one is considering termination means that the employee being considered for termination is unable to respond. It doesn't follow as a matter of logic that in a case such as this everybody knew exactly why - - -

PN83

SENIOR DEPUTY PRESIDENT MARSH: It seems to me, just so that I'm clear if I can interrupt you, you're challenging the Commissioner's finding at the top of page 163 and as a consequence his conclusion in respect of paragraph 29 in relation to 170CG(3)(c) of the Act, is that right, or are you coming to that at a later stage?

PN84

MR MURPHY: Yes, I can deal with it now, your Honour.

PN85

SENIOR DEPUTY PRESIDENT MARSH: Thank you.

PN86

MR MURPHY: I think I've conceded the finding in paragraph 28 relating to 170CG(3)(b) but the more important finding which we challenge most strongly because there is absolutely no basis for this is that that appears in paragraph 29 concerning subsection 3(c). It just cannot be right that he was given no opportunity to respond as a result of him not being advised in terms of the reasons or the reason why he was being considered for termination. He knew, he responded in a way that he considered appropriate by attempting to identify people in a similar situation that he was in, that is, driving a company vehicle whilst affected by alcohol, so he knew why he was being considered for termination and he responded accordingly but that response was not considered to be sufficient. He certainly wasn't able to identify anybody that was in excess of 5 times the legal limit while driving a company vehicle and on a certain crash course, on a certain course heading for disaster.

PN87

SENIOR DEPUTY PRESIDENT HARRISON: The problem, Mr Murphy, is the manner in which the statute obliges the person to undertake an inquiry. It can give rise to a situation whereby the reason the employer was sacking an employee and the reason the employee thought they were being sacked may not be the same reasons and in relation to the employer's reason, the employee firstly doesn't know it, and secondly, is not given an opportunity to respond and in relation to what the employee thought, they do know it, and they do say something trying to respond and the answer to the statutory questions under 170CG(3) may be different.

PN88

MR MURPHY: Certainly, your Honour. One can readily accept that in the normal case, subsection 3(b) has important work to do in the normal case. If somebody is being considered for termination, in the normal case, ought to be notified of the reason for that, but in this case the failure to notify had no practical effect. Indeed, any such notification would have been entirely superfluous as everybody knew.

PN89

SENIOR DEPUTY PRESIDENT HARRISON: I am by no means certain that necessarily gives rise to a criticism of the Commissioner as to how he answered each of the statutory questions. What I am certain of is they are relevant inquiries to make nonetheless under subsection (e) or at the end of the day, is it still nonetheless harsh, unjust or unreasonable?

PN90

MR MURPHY: I don't take issue with that and there will be cases where failure to notify of itself, may warrant a finding of harsh, unjust or unreasonable but that's not this case, but certainly the finding in relation to (c) cannot stand on the evidence. If he had any misapprehension, why did he identify two other employees that he thought were in a similar situation to his, that is, driving a company vehicle whilst affected by alcohol?

PN91

SENIOR DEPUTY PRESIDENT HARRISON: What do you think the Commissioner means by the use of the word "ostensible" reason? Is that something that you can recall in either your submission or Mr Warren's that might have crept into the addressing of each of the statutory tests that needs to be considered? Do you know where that came from?

PN92

MR MURPHY: I don't and I'll have a look at it. But my initial feeling is that it's not something that was put to the Commissioner by either side, it appears that is something that he has adopted himself and if the suggestion is that the reason for sacking, that is, the use of a vehicle whilst under the influence of alcohol, indeed, I can be more precise than that, the reason for sacking whilst driving a vehicle after having consumed sufficient alcohol to give a reading of 0.265, that's being a little more particular than what Mr Lloyd said. He said, "whilst under the influence of alcohol,", well, we'll say "under the influence of alcohol", is a fairly broad concept and on a spectrum there's perhaps minor offences and major. This is so far into the major end of the spectrum that it falls off the graph so there's no ostensibility about it. If the use of that term by the Commissioner reflects a view that he has formed about the reason he was sacked, then, we would submit that that again discloses a flaw in the reasoning and a position taken against the interests of my client for no good reason, a position ought not and cannot be sustained.

PN93

At the risk of repeating myself, these things are there to do practical work, to ensure a procedure of fairness, natural justice we used to call it, a fair go all round, which is in, I think, a Commissioner manual from back in the sixties which has now found its way into the Federal legislation. That's what these lines of inquiry are there to do. To ensure that people understand why they're in trouble and given an opportunity to deal with it. That just doesn't arise here because there's an absolute understanding of precisely why he was in trouble.

PN94

That passage that I took the Commission to at some length, where the Commissioner does put to Mr Lloyd that he could not have responded if he hadn't been notified of the reason. That is seen by the Commissioner of being an important part of the case because he extracts most of it from about page 158 of the appeal book onwards, including the incorrect references to himself at least to Mr Warren rather than himself, at the top of page 162. It looks like I've been corrected from Murray to Murphy but Mr Warren still appears in the two statements at the top of page 162, which were made by the Commissioner, not by Mr Warren.

PN95

Perhaps I should take the Commission to this because it follows directly on from that exchange and he says:

PN96

Can we see from those quotes that it is questionable whether the applicant was told the reason why his employment was terminated. Obviously, the company's reasons for terminating the applicant's employment was the consumption of alcohol.

PN97

That's not entirely correct. If the respondent had written himself off in the manner that he obviously did on this occasion back at the bunkhouse at the Premer Silos or even at the pub in Premer, then the situation would have been entirely different. He wouldn't have been posing a risk to the safety of anyone other than perhaps himself. So that's an understatement or a misstatement of the company's reasons. It was a combination of the vehicle and the high range reading. But then the Commissioner goes on:

PN98

Mr Lloyd's cross-examination allows one to believe that the only reason given to the applicant for the termination of employment is improper use of a motor vehicle outside work hours.

PN99

Well that's wrong as well. That was the same mistake my learned friend made in cross-examining Mr Lloyd to which I objected. That was what was put to him by my learned friend and I objected because that wasn't what Mr Lloyd had earlier said. The two factors were always combined but they got disconnected in the cross-examination. In my learned friend's mind, he forgot about the alcohol aspect until he was reminded but it seems that those factors remained disconnected, at least in relation to this sentence, in the Commissioner's reasoning. He there goes on and says:

PN100

I accept that this was the only reason put to the applicant why his employment was being ...(reads)... not even have a written policy in respect of motor vehicles being driven outside work hours.

PN101

Now, stopping there, no matter whether there's a policy about driving vehicles outside of working ours or not, it is entirely irrelevant. If there was a policy and I'm not suggesting there is that no one is to drive a company vehicle outside working hours. Mr Vallette wasn't terminated for breach of that policy, but I don't suggest there is such a policy. The Commissioner goes on:

PN102

There was nothing before me that would show me that Graincorp had a written policy that was fully understood by all employees who drive motor vehicles for the company whether utilities or cars.

PN103

Now, I will return to the question of policy shortly but I remind the Commission of what's stated in relation to this question of the reason by the respondent of page 6 in his application concerning unfair dismissal. He states the reason, in slightly different language but in no relevantly different terms than the way Mr Lloyd's stated. He's a little more particular because he refers there to the high range Mr Lloyd said under the influence. There was never any misapprehension as to the reason.

PN104

Now in paragraph 7 of the submission, this is the respondent's submission, there's an attempt to put forward relevant factors in mitigation. We say that these factors take an individually or collectively as simply entirely insufficient to excuse what occurred on 22 July, 1999. At the top of page 4, there's some suggestion of unequal treatment in relation to the treatment of others. Now, this is just mere speculation, this is conjecture. There's no evidence of any other employee having a blood alcohol reading, anywhere near 0.265. Now, obviously the level of the reading and the consequent diminishing of ones capacity to drive will be something that ought to be considered.

PN105

A reading of 0.05 whilst unlawful is qualitatively different than a reading more than 5 times that amount. The law recognises that because different ranges of penalties apply for low range, which is 0.05 to 0.08 as compared to mid-range which is 0.08 to 0.15 as compared to high range which is in excess. So, the law recognises that there are different levels of culpability in relation to the consumption of alcohol and driving a vehicle. There's no evidence that any other person who had a reading anywhere near 0.25 was treated more favourably than the respondent. It is mere conjecture it's speculation and ought not be given any weight.

PN106

Then the question of non awareness of policies is raised again in mitigation and we say again, this is a non issue. You don't need to be told, you don't need a policy telling you don't get in a car, whether it's a company car or anyone else's car, when you have drunk sufficient to return a reading of 0.265. Now, I don't know how many schooners of beer it would take but I could speculate, having had some little experience in this field that, most people would be flat on their back unconscious before they got half way there, let alone be able to get into a car and turn the key and start the motor off down a highway.

PN107

People have to take some responsibility for their own actions. This modern concept of society is to blame or the employer has some absolute obligation to, as it were, herd the employees through every twist and turn along the road of life and experiences is nonsense. People must take responsibility and because the employer hasn't said in a policy, please don't do this, it's reckless, it's dangerous, you might kill yourself or someone else, doesn't matter.

PN108

It is clear that that issue, as to the existence or lack of policies, weighed heavily in the Commissioner's mind, and we say that discloses an appealable error. To go back to the analogy I used before, does an employer who has in or on the premises shot guns, need to have a policy saying, "Please don't take this gun and walk down the main street with it loaded, shut your eyes, spin around and pull the trigger because you might kill someone". You know, there's a limit to this.

PN109

SENIOR DEPUTY PRESIDENT MARSH: Mr Murphy, may I come back to that submission concerning policy and go back to the Commissioner's decision, the finding that he makes in paragraph 6, the third finding, is the one that you link into that submission, is it? Is it that finding that you - - -

PN110

MR MURPHY: Paragraph 6, I'm sorry?

PN111

SENIOR DEPUTY PRESIDENT HARRISON: No, 26 of the Commissioner's decision, 162 of the Appeal Book - that's the finding that you complain about?

PN112

MR MURPHY: Well, yes, but it begins towards the end of paragraph 24, on page 162. There are observations at least that we challenge, and then, yes, the last dot point on page 162 which appears to be a finding in terms of the - - -

PN113

SENIOR DEPUTY PRESIDENT HARRISON: The finding is probably right. Whether it's relevant and to the extent to which it affected his later findings by reference to 170CG, we do not know.

PN114

MR MURPHY: I'm driven to accept your Honour is correct again that that's so, that the finding is probably correct, really. As I said before, there's a limit to this, you know. There's a limit to how much one needs to be told by policies and the like, when it comes to the conduct. We're not talking about someone failing to bundy on, we're not talking about someone not returning in a timely way after a meal break. We're talking about somebody who has violated the traffic laws of this state in a gross way, and put himself and the rest of the community at great risk.

PN115

Now, paragraph 8 is reference to our paragraphs 12 to 24, where we say there were two principal inconsistencies and we're told by the respondent between paragraphs 8 and 13 that we're not correct about that. One being the amount of alcohol consumed and we deal with that in our submissions between paragraph 13 to 16. I've already taken the Commission to that. We stand by those submissions. At the very least, the evidence that I've taken the Commission to discloses, we say, that the respondent knowingly lied to my client's investigator on 2 August 1999, at a time when the blood alcohol reading had not been disclosed to him. To say that he'd had three schooners is just out and out nonsense.

PN116

Then the second matter concerning the reason why he had left to return home we deal with at paragraph 17 to 24 of our submissions.

PN117

SENIOR DEPUTY PRESIDENT MARSH: Why is that relevant, Mr Murphy? Why does that matter why he left prematurely to return home?

PN118

MR MURPHY: Well, ultimately it doesn't, in our submission. But what happened, your Honour, is this, that the story changed along the way. The initial story to the investigator was that he had had trouble contacting a friend on the phone from the office. He decide that he needed more clothes from home. He didn't have enough clothes, as I understand he was rostered to work the following day and had apparently run out of clothes, or at least he told the investigator this. So he decided to return home to get clothes and to ring his friend from home, and if one looks at the statement that was given to the investigator by Mr Bacon, who was with him at the time, that version is entirely corroborated.

PN119

This appears at page 125 of the Appeal Book and indeed Mr Bacon was getting a bit annoyed by his failed attempts to contact a girlfriend, told him he was stupid and not to worry about it, and they had a few cross words about the matter. This appears at paragraph 21, and then he left at about 8.30. Now that was the state of knowledge of my client at the time of the termination. He put forward nothing other than he needed some clothes, he had had trouble contacting, in his statement, a friend, in Mr Baker's statement, a girlfriend - nothing turns on that - and so for the, I suppose, dual reasons, decided to go.

PN120

What was not said at any time prior to the dismissal but only emerged after consideration had been given to the upcoming proceedings in this Commission, what only emerged after that, shortly before the hearing commenced, was the suggestion that he had been advised on this day of his sister's illness. This appears for the first time in the statement that we received on the morning of the hearing, although we don't - that I received, and I don't complain about that but it needs to be kept in mind that this statement was prepared a very short time prior to - - -

PN121

SENIOR DEPUTY PRESIDENT MARSH: What's the relevance to that additional factor being raised at that stage to the proceedings?

PN122

MR MURPHY: It's relevant to the applicant's case below because it gave him, in his words, a reason to seek refuge in alcohol.

PN123

SENIOR DEPUTY PRESIDENT MARSH: But it's not a matter that the Commissioner relied upon, is it, in his findings?

PN124

MR MURPHY: He certainly refers to it in the decision.

PN125

SENIOR DEPUTY PRESIDENT MARSH: Yes, he does. I concede that. I understand that. But in applying the statute to the requirements, he doesn't rely on that factor or give weight to it in any way, as a factor on which he made his ultimate decision or findings.

PN126

MR MURPHY: It's a little unclear the reasons proper don't assist, but it seems that he accepted that this had occurred, and that that was the reason that the respondent drank to excess on this day, and it seems that that consideration has influenced the decision. Now we want to say a number of things.

PN127

SENIOR DEPUTY PRESIDENT MARSH: Well, I think it goes a little bit further than that. He did, in fact, find unreservedly in favour of the applicant's version of events.

PN128

MR MURPHY: Yes, but what is unclear is the extent to which that impacted on the ultimate decision.

PN129

SENIOR DEPUTY PRESIDENT MARSH: Yes, and that's what I'm asking you. I don't know what turns on that particular consideration.

PN130

MR MURPHY: We think it must have had some influence on the determination, in the sense that it appears, although this is not clear, that it in some way excused what occurred. Now I don't think that's put in terms, but really it doesn't seem to have any other relevance. Now, we want to say a couple of things about that. The first is that if that was the reason or the trigger that caused the respondent to seek refuge in alcohol, to use his terms, on that day, we didn't know about it. He didn't say anything to the investigator - he gave a fairly elaborate account of what had occurred on that evening, corroborated by Mr Bacon, with not the slightest reference to that.

PN131

Now according to the evidence, the respondent's sister passed away on 29 September. When he was being interviewed on two occasions, a week apart, 12 and 19 November, some six to seven weeks after that, by Mr Lloyd, somebody who had known him all his life and knew his family, indeed there's evidence that the respondent's brother works with my client in a hierarchical line down from Mr Lloyd. He works in a senior capacity below Mr Lloyd. When he was being asked to give a reason why he shouldn't be sacked, nothing was said, and this is some six to seven weeks after the death of his sister.

PN132

He just did not raise that. It will be said that he regarded it as a personal issue and didn't think it was appropriate or necessary or something to that effect to raise, but without wishing to sound harsh in relation to this, it didn't stop him raising it shortly before the hearing and putting it forward in an attempt to explain or have excused his conduct. We say that my client can't be criticised in relation to this because he didn't know until the day of the hearing that this was going to be put, and in any event it doesn't excuse what occurred, at all.

PN133

It might provide some understanding as to the reason he drank to excess and way to excess, but it does not provide the slightest excuse or justification or reason in mitigation for him getting into a car and putting everybody in the vicinity of that area's lives at risk. Nothing can excuse that. Now I think it's also put that this sad news that he received meant that he acted in a way that was unusual or not in accordance with the way he would normally behave. Now I don't accept that. There's some cross-examination of his drinking habits, page 16 of the Appeal Book. He says at about point 7 there:

PN134

I don't consume alcohol on a regular basis. No, it's only because I got that message that over-exerted in ...(reads)...no that's not true.

PN135

Then over the page there's reference to a program that he went on. It appears consequent upon the charges before the Local Court, some alcohol program or rehabilitation program or something of that nature, and he refers to that and he's asked, "How did that come about?"

PN136

Well, that came about because I wanted a bit of my own benefit for that. It was done at Linden House ...(reads)...because I wanted to fix my problem up.

PN137

Now that doesn't quite sit with his earlier evidence that he doesn't drink regularly and he doesn't drink regularly to excess. There seems to be some recognition there that there is a problem and that his behaviour on this particular evening, whilst perhaps extreme, was not qualitatively untypical. Indeed, Mr Lloyd, who had known the respondent all his life, gave evidence, and I don't think he was challenged on this, at page 34, about point 3 onwards, about the respondent's drinking habits. He says at about point 3:

PN138

Richard over the years has had a history of drinking of an evening and that's common knowledge. ...(reads)...No, I wasn't.

PN139

Then he's asked this. He also says in his statement that the thing that led him to drink to excess on this occasion, in July last year was the receipt of the news of his sister's illness.

PN140

When did you first hear about that being a reason for him drinking? On this particular occasion?---In the evidence in his statement, which was filed last week?---Yes.

PN141

So, as I say at least two things about that. At the time of the termination we were entirely unaware that this was going to be raised, but in any event we say it's not a matter that ought to have influenced the Commissioner, in the way, that it appears to have, because it does not excuse what occurred.

PN142

SENIOR DEPUTY PRESIDENT HARRISON: It's not apparent that the Commissioner thought it did. We just don't know.

PN143

MR MURPHY: It's not apparent, but I think one can infer, when it says that he accepts unreservedly, I think. He said that in the context of that issue. That seems to suggest that it played some part more than factual background in the reasoning process. I agree it's less than clear.

PN144

SENIOR DEPUTY PRESIDENT MARSH: So the submissions you've been putting on these issues are in the context of asking us to consider the first finding of the Commissioner? His discretion, with respect to accepting the applicant's version of events, without reservation?

PN145

MR MURPHY: Yes. It is relevant to that because that seems to be the window through which this issue was let in.

PN146

SENIOR DEPUTY PRESIDENT MARSH: But beyond that the Commissioner doesn't make findings or draw conclusions with respect to any of the material that you've been putting?

PN147

MR MURPHY: No, not on that point.

PN148

SENIOR DEPUTY PRESIDENT MARSH: With respect to either the additional or the alternative reason for the drinking or the passages you've taken us to with respect to the respondent's alleged drinking habits.

PN149

MR MURPHY: I think that's right, although the alleged drinking habits, whilst the respondent when he was being questioned or cross-examined was a little reticent about this - what Mr Lloyd said doesn't seem to have been seriously challenged or challenged at all. But to the extent that it has affected the decision, it's a little unclear, but we think it must have played some part in the ultimate outcome, because without some - how do you excuse driving a vehicle with a reading of point 265? We say there is no excuse at all, ever, and can be none, but it may well be that this particular issue led the Commissioner to view that conduct less seriously that he should have.

PN150

SENIOR DEPUTY PRESIDENT MARSH: Yes, we just don't know that.

PN151

MR MURPHY: We just don't know.

PN152

SENIOR DEPUTY PRESIDENT MARSH: We just can't take it that far.

PN153

MR MURPHY: There's a cross-examination about this. I don't ask the Commission to turn to it at page 25. The last two questions on that page and over page 29, from about point 5 through to point 2 on page 31, but I accept what your Honour says. What part this issue played in the ultimate outcome is unclear, although we maintain that to the extent that it may have had some relevance to some issue, we maintain our submission that it was a recent invention.

PN154

We say that his actions on 22 July, whilst extreme, were consistent with his pattern of behaviour as disclosed at the passage that I'll take the Commission to at Appeal Book 16 to 17 and 34 to 35. Now at paragraphs 15 to 19, the respondent deals with our submission concerning the lack of any policy on the use of company vehicles, and the consumption of alcohol outside working hours. We had something to say about that under the heading, "The Decision", at page 6 of our submission in paragraphs 25 to 26 and the effect of what we say there is that this issue of policies or lack of policies was first raised by the Commissioner. It was not the subject of complaint in the witness statement, exhibit W2 which appears at appeal book 65 to 68, nor was it raised in the evidence in-chief of the respondent. It wasn't raised in cross-examination and so it was first raised by the Commissioner after cross-examination had concluded.

PN155

Now, we wish to withdraw that. It is correct as my learned friend so kindly identified to us into the Commission but those issues were raised in the witness statement, which appears at appeal book 67. Commences at page 65 and at page 67, paragraphs 33 and 34 receives:

PN156

I was not aware of any written company policy dealing with the use of motor vehicles outside work hours. I was not aware of any written company policy dealing with alcohol consumption outside work hours leading to loss of employment.

PN157

Now, it's there and we plead to having missed that in the preparation of these submissions and we withdraw what we say at paragraph 25 to 28 about that. But it appears very much as a footnote in the witness's statement. The important issue is this that, no employee can be permitted to blame an absence of written policies as justification of the conduct from the respondent on 22 July 1999. It cannot excuse a person in consuming an amount to get to a reading in excess of 5 times the legal limit and then driving a vehicle, in this case, a company vehicle. I think I've said this before and at the risk of repeating myself, there should be no requirement to have a policy saying don't do that. It's the law that you don't do that. As I've said earlier the focusing by the Commissioner on that issue, in those passages that we've gone to, constitutes an error. Ultimately at some point, and we say this is well past the point where people have to take responsibility for their actions.

PN158

SENIOR DEPUTY PRESIDENT HARRISON: How do you describe the error is all sorts of errors one can make, in which they're described in House v King when one is referring to an outcome based on a discretion - sorry, that there are a number of categories of error identified there. How do you describe in this case, what the error is?

PN159

MR MURPHY: The error of the sort, as I recall, House v King that would warrant intervention on appeal where the exercise of discretion is clearly miscarried and it being exercised improperly. I think as I recall that those debates, your Honour, and I confess it's a while since I've needed to look at it but, where the discretion is exercised in a way that perhaps the appeal bench might not have, itself, had it been hearing the case at first instance exercised it then, the view is appellant intervention is not warranted because of that alone. But where the discretion is exercised in a manner that is simply not open, then appellant intervention is warranted.

PN160

Now, here we have a situation where an employee was terminated for driving a company vehicle, keep in mind he trashed it - now that's probably a ... sine qua non in this situation because that was going to happen, that was a definite. So he was driving a vehicle in excess of 5 times the legal limit.
He was terminated for that. There was no other alternative. He's engaged as a driver, there's no - my client doesn't have a - it's not like a counsellor can put him out, you know, raking leaves in the parks and gardens. Those silos dotted all around the country considerable distances apart which people, in this case the respondent are required to drive to. There was no option.

PN161

To exercise the discretion in the way he has and in the terms of the findings that the Commission has made, the errors are such as to satisfy the test in House v King as to why an appellant intervention. This isn't a case where he got it a little bit wrong. I know that's probably doing gross injustice to the test as to when appellant intervention is required but, putting it in simplistic terms, he didn't get a little bit wrong he got it a lot wrong. In that, there's no restriction at all and the order is to reinstatement.

PN162

Apparently they were saying something about a date but, as I understand, we were required to take him back in the capacity that we employed him. We're required to take this fellow back and put him in a truck. Now, that's just a situation that ought not be forced upon any responsible employer.

PN163

SENIOR DEPUTY PRESIDENT HARRISON: As I read the order there was a loss of pay for a period of time. Is that right?

PN164

MR MURPHY: Yes, I think a couple of weeks. I'm sorry, I'm told 6 months. That's not the point though really, you know, we're not after some monetary penalty in this case. This is a case where termination was inevitable. At paragraph 20, we're attacked in relation to our submission at paragraph 29 that the Commissioner found the respondent consumed more than 3 times the prescribed legal amount of alcohol and that is at appeal book at page 156. Now there was no issue that he was in excess of 5, that was accepted by both. But the Commissioner says at the end of paragraph 15:

PN165

The applicant had consumed more than 3 times prescribed legal amount of alcohol.

PN166

That's just a misstatement of the evidence, with respect. The submissions against us are just a little too cute. It said that more than 5 times is also more than 3 times so there's no error. Well that just can't be accepted. More than 5 times is also more than none at all or more than double. But the facts here, the undisputed facts is it was 5 times or in excess of 5 times not in excess of 3 and this is an error and it's plainly a misstatement, by the Commissioner, of what was the undisputed evidence. Paragraph 21 they raised the issue of policies, well I've not dealt with that. Paragraph 22, the reason for the respondent drinking, I think I've dealt with. There can be no excuse and in any event what occurred was not inconsistent with a pattern of behaviour observed by Mr Lloyd, although perhaps an extreme incident of that pattern of behaviour.

PN167

In paragraphs 24 and 25 they deal with the question of the reason for termination. We've dealt with that and we repeat, and this is important, there can be no doubt that the respondent was fully aware of the reason. He attempted or he did respond in a manner which disclosed he was fully aware but the response was not accepted as adequate or sufficient. Paragraphs 26 to 27, they deal with the wrong address issue and I don't want to go back to that. At paragraph 31, the question of the respondent's understanding was raised again and the last the Commissioner gave, I think I've dealt with this, but if you could compare the way that the respondent formulates the reason that he understood for his termination in the appeal book page 6 with the way Mr Lloyd expressed it under cross-examination at page 39, there is not any relevant difference in the understanding of the two.

PN168

Indeed the respondent at page 6 of his application expresses it with some greater degree of particularity. Perhaps I should read this, at paragraph 33, because our case was largely put on the basis of the health and safety issues that were put in jeopardy by the conduct of the respondent on this occasion and the potential for risk, to him to other workers and other persons in the community. That's not given any treatment at all by the Commissioner in the decision but if one reads the submissions that were put below, that formed a very important part of our case, but the respondent in paragraph 33 deals with it this way:

PN169

There was no evidence given that the respondent's action on the night which led ...(reads)... to the appellant's obligations under the Occupational Health and Safety Act.

PN170

To put that really highlights, in our submission, the absolute untenability of the respondent's position in this case. My client's obligations under the Occupational Health & Safety Act extend beyond working hours, extend beyond the premises. My client has an absolute obligation to have in place a safe system of work. This fellow had consumed sufficient alcohol to get to the point of 0.265. He then returns to my client's premises where there was accommodation facilities provided. On those premises in that condition he gets into a company vehicle. That he didn't crash it trying to get off the premises or kill himself is surprising. That he didn't crash it out on the highway where he is required to drive by my client.

PN171

I'll withdraw that, in fact, he did crash it out on the highway and that was obviously going to happen. That he didn't kill anybody is surprising as well. If this isn't a violation of his obligations and a potential violation of my client's obligations if it doesn't act, then nothing else can be and to dismiss those concerns in the way that the respondent has attempted to do in paragraph 33 and paragraph 35 as well also, I think, really discloses the untenability of the position because there may well be an available technical legal argument. But when he crashed the vehicle out on the road to Ulamambri this evening being off duty and away from company premises, if we had been prosecuted by Work Cover for a breach we may have had some defence. That's not the issue. The issue is what he did. The risk that he posed to himself and to others and the risk against the background of a pattern of consistent drinking to excess is a risk that we cannot continue to take.

PN172

For those reasons we ask the Commission to grant us leave, uphold the appeal and set the decision aside.

PN173

SENIOR DEPUTY PRESIDENT MARSH: Thank you, Mr Murphy.

SHORT ADJOURNMENT [11.55am]

RESUMES [12.20pm]

PN174

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you, Mr Warren.

PN175

MR WARREN: Your Honours and Commissioner, from my reading of the notice of appeal filed on behalf of the appellant, it becomes apparent to us, unless we have missed something, that the appellant has failed to specifically claim leave to appeal. We say that's not just a slight oversight. We say there's a fundamental issue there, that clearly the appellant requires leave to appeal before this appeal process should ultimately proceed. We say this in the following context. It is clear from the appellant's submissions, that in paragraph 67 they assert that the so called manifest errors that they attempt to identify from the Commissioner's decision, they say, are of such a nature as to warrant the grant of leave and that's as far as they take it, and that's where it sits.

PN176

We also note and my learned friend at the conclusion of his oral submissions today, rather glibly put, for all those reasons leave to appeal should be granted. It's not as lightly brushed off as that, in my respectful submission. There is a need for leave to appeal. It was a discretionary decision. The statute requires such leave and such leave considerations should be at the forefront of this benches mind when considering this matter. We say there have been no demonstrable reasons given by the appellants as to why in the public interest leave to appeal should be granted and leave should not be granted and that should be the end of the matter.

PN177

If this Commission is convinced and satisfied that leave to appeal should be granted in terms of the statute, then there is still a need for this Bench to find in this discretionary decision of Commissioner Redmonds there is some fundamental error of law or of fact that would warrant the turning over of that decision on appeal. We say in any event, no such identifiable error of law or fact has been brought before this appeal bench. In the appellant's written submissions they identify four claimed appealable errors and there is the fifth one raised today as an appealable error being the failure to notify of the reason and the reliance of the Commission on that at first instance.

PN178

The first fundamental appealable error raised in the written submissions of the appellant occurs in their submissions from 25 to 28 on the policy of driving company motor vehicles and my friend says in the written submissions at paragraph 28:

PN179

The introduction by the Commission of this issue in proceedings and affected the decision with error.

PN180

That's been abandoned and we clearly understand why it was abandoned. It wasn't only raised by the respondent in his witness statement, it was raised by the Commissioner after the cross-examination. It was raised by myself in submissions and at no stage was it answered by the appellant. It's important to note the context in which that was raised and with respect to my friend, he has attempted to deal with it somewhat lightly as if there needs to be a company policy that a person won't drive a company vehicle on a public road with 0.265 blood alcohol reading. That is not what is said. What is said is in this context. Mr Lloyd in his evidence, says, Mr Vallette said and this is from page 79 of the Appeal Book:

PN181

I can't give you any reason whatsoever that's in the context of, "Come back in a week's time and give me a reason why in all of the circumstances you shouldn't be terminated.

PN182

Mr Lloyd says:

PN183

I can't give you any reason whatsoever.

PN184

Now that's where that cross-examination was going. If one looks at the context in which that's put, the cross-examination that the learned Commissioner refers to at length in the decision, it was chasing Mr Lloyd down to admit that that was a wrong statement. That Mr Vallette didn't say, I can't give you any reason whatsoever. It was in the process of that and against the context that Mr Vallette came back and said, "I'll give you two reasons." You've dealt with this matter differently in the past. It had been two people that have been caught drink driving, one of them at work. One of them at work and he wasn't sacked. Now Mr Lloyd's answer in cross-examination to that was just simply, "Well I wasn't the boss."

PN185

It's against that context that one has to say, well what is this company's policy and why has it changed? Why is it that a person can be under the influence of alcohol at work, driving fellow employees in a company vehicle and not be terminated and I'm not at work, yes I'm under the influence and well over, yes I'm driving a company vehicle and I am terminated? That's the context in which that line of questioning went and coming out of that came this reason that Mr Lloyd proffers as to why Mr Vallette was terminated and that puts it into context and it came to the respondent's case below among other things of fair treatment. There's been a shift in your policy, that's why it was put in the statement. That's why it was in the statement, to show us what your policy is. If there's been a shift, we don't know about it.

PN186

It's in that context that it was put. It was in that context that it was put in submissions below and it just happened that Mr Lloyd took a bit of convincing in cross-examination that he was wrong and he finally admitted he was wrong and it's a far cry with Mr Vallette coming back a week later and saying I'll give you two reasons and here they are as opposed to Mr Lloyd's evidence under oath saying, I can't give you any reason whatsoever. It's in that context that it was put, and this no doubt weighed on the Commissioner's mind. This person's not telling the truth. This person's stretching it a little bit, not just a little bit, a lot.

PN187

That's where we started on this reason bit and then when you look at the reason and the Commissioner would use the words ostensible and I note your Honours questioning of my learned friend about that and ostensible to the best of my knowledge can be considered to be apparent, an apparent reason. Well the apparent reason that was given by Mr Lloyd under oath in cross-examination, was certainly not the reason that was given by Mr Lloyd in his evidence in chief when he says, under the circumstances he will come back with the reasons.

PN188

What are these circumstances? Yes, certainly Mr Vallette in his application pursuant to the provisions of the Act for Unfair Dismissal, he certainly raised the issue of drink driving out of hours but one then questions inappropriate use of the company car? That raises issues of policy as well. It always begs the question, could there be an appropriate use of a company car in those circumstances? But that's the words that Mr Lloyd used and they're the words that the learned Commissioner says, there's the ostensible reason and it's crystal clear that that ostensible reason had not been given to Mr Vallette. That's the issue on the company policy.

PN189

It was not the case below of Mr Vallette and it's not the case here as a respondent to the appeal that the issue rises and falls on company policy but it came out during the course of the case and it came out in the respondent's statement and it wasn't answered. It was raised in submissions on behalf of the applicant below, and it wasn't answered and with this question of answer sitting there, bearing in mind the different treatment and my friend tries to brush that aside as some either recent invention or some mere conjecture, I think were his words:

PN190

The treatment of other persons differently is mere conjecture

PN191

There is no conjecture about it. No conjecture about it at all. Mr Vallette said that that's what his inquiries found, and Mr Lloyd agreed with those inquiries. Mr Lloyd agreed that there had been two people, in terms discovered by Mr Vallette, who had been drink driving, one at least of which had been drink driving at work. It was against that background also, that raised below by the respondent to this appeal was the then, as referred to by Commissioner Redmond the decision of Deputy President Drake, as noted by and given at print R4998, in matter U 21373 of 1998, where the Deputy President in that case, found that although a person had been under the influence of alcohol at work, they required he needed a second chance. He was a driver.

PN192

Now that's the background, and that's the circumstances in which that submission was put below, and it's put again here. There's nothing wondrous about that. It's a fair treatment submission, and clearly Commissioner Redmond took that on board. Now the second appealable error, claimed appealable error, in the appellant's submission is the amount of alcohol consumed. My friend has gone there. It was admitted it was point 265. It was admitted at the start of the case. It was admitted when my friend asked Mr Vallette that in cross-examination. It was admitted there also. What wasn't admitted and what wasn't known is how the heck it got there. I'll come to that in a moment.

PN193

The importance of how he got there is, to a certain extent important, because it sets the background. My friend has tried to paint Mr Vallette as a chronic drunkard, and that's just simply not right. It's not right on the appellant's own evidence, and I'll go there in a moment. In fact, I'll go there now. If one goes to the history and quantity of Mr Vallette's drinking, one only has to read the appellant's own investigator, whose evidence was tendered below, to show that's just simply incorrect.

PN194

At page 92 of the Appeal Book is their own investigator's summary or precis of his investigations, and there their investigator, at the bottom of page 92, finds that Mr Thompson, one of the persons interviewed, advised our investigator in his opinion the worker had not been consuming alcohol through the course of the day. There's no suggestion he had been drinking at work. Over on page 95, Mr Salisbury stated he was of the opinion the worker had not consumed alcohol throughout the course of the day on Thursday, 22.

PN195

Over on page 101, and this is where the reason for driving comes in, and this is probably what sparked by friend's interest, page 101, in the conclusion of the investigator:

PN196

The worker has not stated that he intended to travel to ...(reads)... This confrontation with his girlfriend just simply didn't occur.

PN197

He wanted to contact her. There was no suggestion of confronting her. No argument. Then he continued:

PN198

There's been no evidence from the worker's co-workers ...(reads)...in the course of his working day.

PN199

SENIOR DEPUTY PRESIDENT MARSH: Has that been tendered, Mr Warren? I'm not aware that that's in contention, that fact.

PN200

MR WARREN: My friend has said - well, I'll keep going, your Honour.

PN201

SENIOR DEPUTY PRESIDENT MARSH: All right. Well, I would like you to directly answer my question, because I'm not aware of anything that's been put or anything in the Commission's decision that that's at issue.

PN202

MR WARREN: Well, I'll go to it, your Honour.

PN203

SENIOR DEPUTY PRESIDENT MARSH: Thank you.

PN204

MR WARREN: My friend says it's an Occupational Health and Safety issue whether this person can drive a motor vehicle ever again, for the employer. We say the only evidence that is before the Commission that he has ever, in 30 years, driven a motor vehicle owned by the employer, under the influence of alcohol, was this one occasion. Only time. There is no suggestion, and the evidence is clear, that on that day he had not been drinking during working hours.

PN205

He is not a person who cannot be trusted to drive a truck during working hours, or drive other people in that truck during working hours. There is simply no evidence of that whatsoever, and it is wrong therefore to come before this Commission and say it's an Occupational Health and Safety issue. occupational safety issue and we can never trust this person to drive one of our vehicles again. This is the first time in 30 years he has driven one of their vehicles under the influence of alcohol.

PN206

It wasn't at work, and there's simply no evidence that he ever does that, and indeed the people who are working with him that week, at page 122, starting with Mr Thompson, paragraph 9, have not seen Richard drink anything else but water that day. Then he goes on:

PN207

I'd stay in the huts at the side and - - -

PN208

SENIOR DEPUTY PRESIDENT MARSH: You haven't answered my question, Mr Warren, but you move on.

PN209

MR WARREN: I did, I'm sorry.

PN210

SENIOR DEPUTY PRESIDENT MARSH: I said was that fact in contention?

PN211

MR WARREN: It is in the Occupational Health and Safety issue. Yes, it was. My friend has said - well, that fact alone, no, you're right.

PN212

SENIOR DEPUTY PRESIDENT MARSH: That's what I asked. That's all I asked. Was it in contention? That fact.

PN213

MR WARREN: That he drank during working hours? No, it's not.

PN214

SENIOR DEPUTY PRESIDENT MARSH: Thank you. That's the answer to the question I asked.

PN215

MR WARREN: Thank you. Then as to whether he was a person who drank heavily outside working hours, which is in contention, your Honour. We say it's not right. The appellant's own evidence, in Peter Thompson's statement at paragraph 11 on page 122:

PN216

I stayed in the huts on the silo on Tuesday and Wednesday nights ...(reads)...after we knocked off.

PN217

So he drank one long necked beer on Tuesday. He drank nothing on Wednesday. Mr Bacon, the person mentioned by my friend on page 23:

PN218

Richard and myself had two schooners each.

PN219

This is on Monday night:

PN220

And returned to the huts to have tea.

PN221

So there are two schooners drunk on the Monday night. Bottle long neck drunk on the Tuesday night. Nothing drunk on the Wednesday night. Then it proceeds to talk about the amount they drank on the Thursday night, and certainly in these people's company - and Mr Vallette seems certainly to have been in the company of Mr Bacon for a very long period of time, or a number of hours - Mr Bacon doesn't say Mr Vallette was drinking excessively. Now we don't resile from the alcohol consumed measurement. But we say it was a one off. It was very much a one off, and there were reasons for it being a one off.

PN222

My friend said, surely Mr Lloyd would have known, or he should have told Mr Lloyd, that it was because of his sister's illness, that he was drinking. Mr Lloyd himself, on his own evidence, as I refer to in my submissions, said he wouldn't expect Mr Vallette to do that at all. Mr Lloyd says he wouldn't have expected Mr Vallette to tell him. So Mr Vallette was clearly known as a rather private person, in my submission.

PN223

So it wasn't an issue that Mr Lloyd should have or thought he should have known that Mr Vallette had a sick sister. Mr Lloyd on his own evidence says he wouldn't have expected Mr Vallette to tell him that. So that whole issue - it wasn't a recent invention. It's not an excuse for the drinking, but it was a reason why Mr Vallette was in a condition that he was not usually in. That's all. That was as high as it was put, and as high as it is. My friend says that the company simply can't have Mr Vallette drinking the quantity that he drank and then driving on the public road. Well, the courts have dealt with that. He's been before the court. He's lost his licence for a period of time. He's volunteered to do the drink driving program and he's successfully done that.

PN224

SENIOR DEPUTY PRESIDENT HARRISON: Mr Warren, what was the final outcome of those court proceedings?

PN225

MR WARREN: He got his licence back when he came back to court in November.

PN226

SENIOR DEPUTY PRESIDENT HARRISON: With restrictions?

PN227

MR WARREN: No restrictions.

PN228

SENIOR DEPUTY PRESIDENT HARRISON: Obviously I can therefore assume that at the time the Commissioner reserved his decision and gave his decision, that during that period there was no licence held?

PN229

MR WARREN: There was no licence held.

PN230

SENIOR DEPUTY PRESIDENT HARRISON: Thank you.

PN231

MR WARREN: There was an issue below as to whether that was the essential part of his duties, to have a licence. He was described by the appellant as an offsider. Mr Vallette gave evidence that he invariably travelled with someone else, who also had a licence. The very week that he was involved in the truck accident, on the Thursday night, they were at the one location all that week, and working at the silo all that week, that one location. Indeed, it's Mr Vallette's evidence below, that if not on the vast majority, or more than the vast majority of cases - I think he uses 90 per cent or something - but it's some contention, that he always has someone else with him who can drive the truck anyway.

PN232

There was work for him, quite clearly, without the use for his motor vehicle licence but now he has it he can continue to use it. A fourth fundamental error or appealable error raised by my friend in his submissions is the Commissioner's failure to deal with the Occupational Health and Safety provisions. In his submissions he says, "this constitutes appealable error." With respect to my friend's submission, we stand by the submissions he has read to this Commission. There is no suggestion from any of these fellow workers in their statements that they have ever had any concerns of travelling with Mr Vallette in the truck. There is no suggestion that he has ever drunk during working hours or turned up for work under the influence of alcohol and OH&S proposition that my friend now puts as a fundamental tenet of his case simply cannot be sustained.

PN233

If he had brought evidence of that, below, of other parties concerns of the fact that Mr Vallette had ever at work and one stresses, section 15 of the Occupational Health and Safety Act of New South Wales speaks of, "an employer insuring it's employees whilst at work, work in a safe environment", etcetera. There is simply no evidence of that. It is, as we suggest, a reason that is now raised or is raised at the case below as to why Mr Vallette should be terminated or should have been terminated. It was never given as a reason up until the case. It was never suggested to Mr Vallette that the company was concerned as to it's Occupational Health and Safety obligations, or that he was breaching them. It simply couldn't be sustained and that's why it wasn't suggested, in my respectful submission.

PN234

So, let me get to this failure to notify the reason. There's no doubt that the learned Commissioner speaks of ostensible reasons. But, as I indicated earlier, that must be read against the background of where it is found. I will just take the Commission to it. In paragraph 26, the Commissioner makes a number of findings. He accepted the applicant's version of events surrounding his termination without reservation. He made there a clear assessment of the applicant's evidence over Mr Lloyd's evidence and perhaps influenced by Mr Lloyd's clear exaggeration in his witness statement and his recanting of that in cross-examination, perhaps that influenced the Commissioner as to who he would believe. He certainly set out enough of the transcript by order of his decision for this Commission to feel comfortable on that. Perhaps he was influenced by that and might we understand why, but he was accepting the applicant's version of events and he said, "I don't accept Mr Lloyd's version of events" and he had the unique opportunity of seeing both in the witness box.

PN235

Now, my friend suggested in his written submissions that this is some misuse of his undoubted advantage. There was no misuse of the advantage at all. The Commissioner sat there and he saw both witnesses and he preferred one over the other. He found Mr Vallette to be a frank and truthful person. He then says, "I find there's no evidence before me that the applicant would have any knowledge of the company's policy in relation to driving motor vehicles outside work hours. That's true and I note, your Honour, Senior Deputy President Marsh saying, "Well, where's the relevance of that." I put it in the context that we see it is a relevant finding and he found that Mr Lloyd had never put the applicant and the reason for termination. He certainly hadn't put to the applicant, in words as expressed in the court, the reason for the termination. No doubt about that. Mr Lloyd admitted to that.

PN236

For all of those reasons, we say it's clearly implied in the decision. For all of the reasons set out in 26 he comes to 27 - found that there was no valid reason for the termination. We say that's clearly drawn from the decision, that he found that there was no valid reason for the termination. Now, that is of course - - -

PN237

SENIOR DEPUTY PRESIDENT MARSH: The test is a little different and I think importantly on the facts in this case in the - sorry not the test, the inquiry that the Commission must undertake is whether there was a valid reason for the termination and it goes on to say, "relating to the capacity", etcetera.

PN238

MR WARREN: Or conduct of the employee.

PN239

SENIOR DEPUTY PRESIDENT MARSH: Or conduct of the employee, yes. For myself, I'm finding it very difficult to understand how driving any motor vehicle but in this case the employer's motor vehicle, with that blood alcohol reading would not be a valid reason.

PN240

MR WARREN: If it had been during working hours and had there not been other considerations. Considerations that were relevant to Deputy President Drake in the decision I referred the Commission to. Considerations that were clearly relevant to the Commissioner under the heading of Conclusions and Findings on page 156 of the appeal book in paragraphs 15, 16, when he speaks of:

PN241

The applicant was a long standing employee of Graincorp. Never given a warning - - -

PN242

SENIOR DEPUTY PRESIDENT HARRISON: Of course because that might be a good example for me to have this exchange with you.

PN243

MR WARREN: Yes, certainly.

PN244

SENIOR DEPUTY PRESIDENT HARRISON: I am by no means certain that that consideration would be appropriate to take into account as to whether the reason was valid or not. I am certain it would be appropriate to take into account, under subsection (e). What do you say about that?

PN245

MR WARREN: What do I say about that?

PN246

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN247

MR WARREN: I say, that the valid reason in 170CG(3)(a) indeed directs the inquirer to the capacity or conduct of the employee. We say the conduct of the employee, one has to look at that conduct and we say, you can't just look at when you're dealing with a consideration whether there has been a valid termination for the whole of the conduct. We say, the whole of the conduct includes his record, his unblemished 30 year record and the fact that it was out of working hours, he wasn't putting other employees at risk.

PN248

Now, they all have varying degrees of importance but we say clearly, the Commissioner was true in finding that Mr Vallette was and I quote, at the end of paragraph 16:

PN249

The applicant was a long standing employee of good character.

PN250

That, obviously weighed on the Commissioner's mind as to whether it was valid to terminate this person for a, we say, a one glitch - a big glitch but a one glitch.

PN251

So, your Honours, we say that quite clearly there was evidence there for the Commissioner to come to the decision that there was not a valid reason for the termination. It was a discretionary decision - yes. It was a decision open to him on the evidence. It was a decision that was available. That was the decision he made having weighed all of the evidence. He clearly saw that there was some different meaning in the reason that Mr Lloyd gave for the reason for termination, when using the word, "ostensible", and one can understand that. That was the apparent reason given for the termination at hearing. That apparent reason was not put in those terms to the dismissed employee, so he could quite properly have come to the finding that the applicant was not advised of the ostensible reason. If he hadn't been advised of the ostensible reason, 3(c) flows. He wasn't given an opportunity to respond to the ostensible reason.

PN252

SENIOR DEPUTY PRESIDENT MARSH: Does it automatically flow, Mr Marsh? (c) is structured differently from (d). (a) refers to a valid reason. (b) refers to that reason and (c) refers to any reason.

PN253

MR WARREN: Yes. I take your Honour's point. There is a difference in the wording there where (b) is precise, isn't it, in terms of that reason, and (c) is respond to any reason. I take that point. He assumed a reason on Mr Lloyd's own evidence. He didn't say, this is the reason. Mr Lloyd's own evidence is in the circumstances, "Come up with a reason why you shouldn't be terminated". You've reversed the onus, almost.

PN254

Yes, clearly he came up with reasons directed to what he thought were Mr Lloyd's concerns. But they weren't the reasons given at hearing, and we say that was a conclusion and a finding reasonably open to Commissioner Redmond on the evidence before him. It was a finding reasonably open to him, and as it was a finding reasonably open to him, it is not now with respect, to be reversed on appeal. It was a discretionary decision, and it was reasonably open to him.

PN255

Clearly, having set out earlier in his decision, the test expressed in Burns case, he applied that as well to find whether the termination was harsh, unjust or unreasonable in accordance with the test expressed in Burns case. We say that was not an improper or clearly appealably wrong application of the appropriate test.

PN256

SENIOR DEPUTY PRESIDENT HARRISON: Before you go any further, may I take you back to the finding in paragraph 31, referable to 170CG(3)(e)?

PN257

MR WARREN: Yes.

PN258

SENIOR DEPUTY PRESIDENT HARRISON: The Commissioner says that there are no other matters that he needs deal with. I must say, I'm having some difficulty with that.

PN259

MR WARREN: Your Honour, if it is that your Honour accepts my explanation of his reason behind the valid reason, that 3(e) does flow, inasmuch as, "Well, there's nothing else I've got to consider, I've considered everything else," as I read it, your Honour, it's difficult to get into the Commissioner's mind at times, I appreciate that, but that's as I read it. Once again we say that's a vital.

PN260

I note Senior Deputy President Marsh's questions to my learned friend, with respect to the reasons why the driving took place, and I don't take that any further. Without referring further to our written submissions, I have nothing additional to put in this speech unless there's anything further put to me. We say that the leave for appeal should not be granted. We see that the appellant clearly has not satisfied the test in the Act. If this Commission is of a contrary view to that, we say in any event, there has not been any demonstrable appealable error found that would warrant the overthrow of Commissioner Redmond's decision. If the Commission pleases.

PN261

SENIOR DEPUTY PRESIDENT MARSH: Thank you, Mr Warren. Mr Murphy?

PN262

MR MURPHY: There are three matters, may it please the Commission, that we wish to deal with. The first is that my learned friend sought to take the Commission - I don't think to the evidence about this - but to the position that there's a capacity in my client to have engaged the respondent in non-driving work. Now that's not the position. He himself described the work that he did in his application for unfair dismissal at Appeal Book page 5 as, "driver".

PN263

That's what he was engaged to do, and the evidence of Mr Lloyd was that he was required to drive extensively on the open highway from side to side. He did a lot of that. He might have been called a pest control offsider, in terms of the work that he did when he got there, but you can't get there to do that work without the capacity to drive. That's clearly an essential part of the job and without being able to employ him as such, then there's really no useful work for him to do. Reference has been made to the case of Burton.

PN264

SENIOR DEPUTY PRESIDENT HARRISON: Before you go off that topic - that is not a ground of appeal, so is it something that we need to consider further?

PN265

MR MURPHY: Well, maybe not in precise terms, your Honour, but certainly the Commission's not, as it were, confined to the grounds put forward, and we would submit that it is something - - -

PN266

SENIOR DEPUTY PRESIDENT HARRISON: Our task is hard enough on this section which, on the face of it, I think is hard enough to me to not be very attracted to a submission that if it's not raised before me, nonetheless I should seek it out. That's the point.

PN267

MR MURPHY: We accept that. We now raise it and if the notice of appeal is deficient in that respect, we seek to deal with it now. We say that the effect of the order is that we're required to take him back in the capacity that he was employed and that, in his terms, was driver. Now my learned friend says he's got his licence, so that's not a problem. Well, it is a problem. The fact that he's got a licence doesn't absolve us of our responsibilities to other employees and the community and doesn't alleviate our concerns.

PN268

Now, the reference to the Burton judgment of Senior Deputy President Drake. I managed to look at this because the facts of these sorts of cases invariably differ. There you're talking about a reading of 0.05, an unlawful reading but just unlawfully. You're not talking about over five times the legal limit. You're talking about the legal limit or as I think I called it earlier, the illegal limit. That's clearly a differentiating factor. This was a fellow that had ceased drinking the evening before and had had a night's sleep.

PN269

I'm being corrected here. My learned friend's suggesting by reference to page 3, I think of the decision, it was point 11. I must say I read this decision some time ago and was of the view that it was less than that, although it appears my other learned friend's correct, under the heading "Factual Background". But in any event, that's still a mid-range, not a high range, and the law recognises that there's a qualitative difference between those two offences.

PN270

My client Is entitled to take a certain view about point 265 as opposed to point 11 or something less, and the Commission's entitled to take a different view as to that, and when one looks at the graph that I took the Commission to earlier, you'll see that the probability of having a crash at point 11 is getting high. At point 265 it's off the Richter scale. It's a certainty, and there's a difference there. The third matter is that my learned friend says, "this is a one off". There's no evidence of him drinking at work and we can see that there was no evidence that he had been drinking at work on 22 July but the alcohol got into him somehow. If he hadn't have been drinking at work and we don't say that he was, he certainly gave it a fair hiding that evening at the hotel. But it said this is a one off - well there's no evidence that it is a one off, we just don't know. Although there's clear evidence from Mr Lloyd which is uncontradicted that, he has a pattern of heavy drinking. So the Commission can't be satisfied that this is a one off in the way that it's put by my learned friend. He seems to suggest that this is a one off and you can be happy that its never happened before. Well you can't be happy about that at all. This is a one off in the sense that, it's the only time he was caught. It's the only time he has been blood tested, apart from some incident 20 years ago which we don't rely upon.

PN271

The Commission can't be satisfied that it's a one off in the way my learned friend puts it all. My client and the community should not be required to take the risk that this is not a one off, that this is consistent, although an extreme example, but consistent with the pattern of behaviour attested to by Mr Lloyd not disputed and may happen again. It only takes one time for someone so out of control as he must have been behind the wheel of this truck, out on the highway to kill a whole family. It only takes once for that to happen and that can never be retrieved. My client ought not be required to bear the very considerable risk, the very real risk that the order of Commissioner Redmond as imposed upon it.

PN272

SENIOR DEPUTY PRESIDENT HARRISON: Thank you for those submissions, we will reserve our decision. The Commission stands adjourned.

ADJOURNED INDEFINITELY [1.05pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 APPELLANT'S SUBMISSIONS PN6
EXHIBIT #W1 RESPONDENT'S SUBMISSIONS PN6