C2002/1652, Transcript of Proceedings [2002] AIRCTrans 1490 (2 May 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

O/N VT03548
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2002/1652

APPEAL UNDER SECTION 45 OF THE ACT BY
FOSTER PLASTICS INDUSTRIES PTY LTD AGAINST
THE ORDER AND DECISION (PR916066 and
PR916068) OF COMMISSIONER WHELAN AT
MELBOURNE ON 28 MARCH 2002 IN U2001/7098
RE TERMINATION OF EMPLOYMENT

MELBOURNE

1.15 PM, THURSDAY, 18 APRIL 2002

PN1

MR R. MILLAR: I seek leave to appear on behalf of the appellant employer in that matter.

PN2

MR K. FAROUQUE: I seek leave to appear for the respondent in this matter.

PN3

THE SENIOR DEPUTY PRESIDENT: Leave is granted in both instances. Mr Millar?

PN4

MR MILLAR: Your Honour, this is an application for a stay of the orders of Commissioner Whelan on 28 March. I have an outline of submissions which I am able to hand up to you.

EXHIBIT #M1 OUTLINE OF SUBMISSIONS

PN5

MR MILLAR: Your Honour, a copy of the notice of appeal with some minor amendments was filed in the Commission yesterday. Has that made its way to your file?

PN6

THE SENIOR DEPUTY PRESIDENT: Yes.

PN7

MR MILLAR: Commissioner, the principles to be applied by the Commission in determining a stay are well known and straight forward. I have set them out in the outline of submissions. It is a three stage process. The applicant - or appellant must establish firstly that there is an arguable case. Secondly, that the balance of convenience is in favour of granting the stay. And, thirdly, there is a purpose for the granting of the stay. I will hand up to your Honour copies of the cases that I have referred to on that. The first decision is Swersky and Velos. A decision of Senior Deputy President Williams.

PN8

The copy I have obtained is all in upper case, your Honour, which makes it a bit hard to read but the - Senior Deputy President, in that matter it is stated the test as I have set out in the submissions. I don't need to go to that further at this stage. But that was then applied in numerous cases, but in the second decision I have handed up, ANZ Banking Group v Levendakis, Senior Deputy President Watson has applied that test. The notice of appeal raises what I have broadly described in the outline of submissions as six points of appeal. Six separate grounds on which the appeal is pursued.

PN9

The principle ground of appeal which is dealt with in paragraphs 1 and 2 of the notice is the refusal of the Commissioner at the hearing of this matter to allow the appellant to call evidence. It is the appellant's submission that this was a breach of the principles of natural justice. That the right to be given an opportunity to present one's case is so fundamental to the principles of natural justice. So fundamental to the way in which the Com,mission should proceed, that the decision which resulted from that proceeding, is bad and should be set aside.

PN10

I have set out in the outline of submissions an extract from the Queens Bench Division in R v Thames Magistrate's Court Ex Parte Polemis which I will hand up to your Honour. At page 1223 Widgery CJ states that the quote that I have set out in full in the outline - I won't take you through his Lordship's quote, but suffice to say, that it is authority for the proposition that the right to be given a reasonable opportunity to present one's case is an elementary and basic requirement of the right to procedural fairness. Now, it is worthy of note that it is a right to be given a reasonable chance to present one's case.

PN11

That is in many ways the fundamental issue here. There had been, on the file, and as is apparent from the Commission's decision, a default by the then respondent - the appellant now - in complying with the orders or the directions of the Commission to file witness statements and outlines of submissions. That is also clear that on the day of the hearing the appellant was present with witnesses, requested a right to be heard, had witness statements but the Commissioner was not prepared to admit those statements into evidence nor allow the appellant to call those witnesses.

PN12

THE SENIOR DEPUTY PRESIDENT: Mr Millar, as I understand it, there would have been directions issued with the notice of listing about filing of witness statements, etcetera?

PN13

MR MILLAR: I think that was the practice that was followed, yes, your Honour.

PN14

THE SENIOR DEPUTY PRESIDENT: I just don't have that document before me, but that is the normal course. Do we know why those directions were not complied with?

PN15

MR MILLAR: Well, there had been a history of industrial disputation at the employer that caused some delay. The Commissioner, in paragraph 4 of her decision refers to a letter from the appellant dealing with a failure to attend the conciliation conference. Christmas then intervened and there had been a failure of the managing director of the - the appellant was on leave for four weeks over that period and there had been a failure to file the documents within time. I might also add that the respondent - the employee was also a month late in filing the submissions and witness statements as I understand the chronology of events.

PN16

But by the time the matter came on for hearing - the day of the hearing, the employee had provided those documents and the employer had not and was intending to do so at the hearing. The Commissioner prevented the employer from doing that.

PN17

THE SENIOR DEPUTY PRESIDENT: As I understand from the Commissioner's decision and looking at paragraph 10, a further notice of listing and directions were sent and the respondent was required to comply with the directions by no later than 4 March 2002. So we have overcome the, sort of, Christmas period et al and yet there was still non compliance. Do we know why there was non compliance with those second set of directions?

PN18

MR MILLAR: The managing director at that time was engaged on the factory floor and still is and sometimes through oversight paper work such as this isn't attended to in a timely fashion. There is no greater excuse I think that can be offered at this stage for the non compliance with those orders. But by the time the matter came on for hearing the then respondent and now appellant had arranged for representation and had prepared the necessary paper work in order for the matter to proceed but was refused the ability to do so.

PN19

THE SENIOR DEPUTY PRESIDENT: Was there any explanation given to the Commissioner? Mr Draper, who I understand, was representing - - -

PN20

MR FAROUQUE: If I may assist the Commission. I think the explanation proffered is at paragraph number 32 of the transcript.

PN21

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, it was Mr Draper who was representing the company in the proceedings at first instance.

PN22

MR MILLAR: Yes, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: And he was engaged - well yesterday - it says at paragraph 26 which is presumably 18 March.

PN24

MR MILLAR: That is what it says, your Honour. Well, again, the explanation offered there was consistent with what I have said today, your Honour, that it is a hands on business. Sometimes these things slip through without due attention.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes.

PN26

MR MILLAR: And you will see towards the foot of that page, at paragraph number 38, that Mr Draper requested the indulgence of the Commission that, "I be allowed to proceed with the statement that I have today brought along." And the Commissioner, responded:

PN27

Well I am not going to allow you to, Mr Draper.

PN28

And that is the heart of the appellant's argument. That it was denied a right to be heard. Denied procedural fairness. Many of the cases dealing with a denial of the right to be heard turn on an employer or turn on a party who has failed to attend for a hearing, for instance, and the matter has proceeded in their absence. That gives rise to different considerations where the right to be heard has been provided. But in this case the actual hearing was attended by the employer. Was attended by the party seeking to be heard and it was denied the opportunity to present its evidence, presents its side of the case.

PN29

And, not surprisingly, as a direct consequence, the employer effectively didn't have a hope of being able to defend the proceeding. The only evidence - the uncontroverted evidence was from the employee's witnesses and the employer was unable to present any evidence of its own. Now, it is our submission that there are other ways in which the Commissioner could have more properly handled the situation that she found herself in without denying the appellant of the right to be heard. My research has turned up no cases dealing with a refusal to allow evidence in this fashion.

PN30

And the reason for that, I suggest, is that there are other ways to deal with this type of conundrum. The proper course, in the appellant's submission, would have been to proceed subject to any right of the employee to seek an adjournment if they had been taken by surprise by anything that was contained within the appellant's witness statements. But the proper course was to proceed to allow the appellant to call evidence. The right to be heard is of such fundamental importance. The right to be able to put your case, to call your witnesses, is of such fundamental importance to procedural fairness that it can't be used as effectively a disciplinary sanction in the way the Commissioner did.

PN31

To deprive the employer of the opportunity to put its case struck at the heart of procedural fairness and it was in contravention of the statutory duties that the Commission is charged to fulfil. The other way in which the Commission could have proceeded, of course, was to allow an adjournment and perhaps have considered under section 170CJ(3) whether an order for costs should be made. If the Commission was of the view that the appellant had in some way acted unreasonably so as to cause the respondent, the employee, to incur costs, to throw away costs by attending for the day, well, an application for those costs may well have been properly entertained by the Commission.

PN32

The presence of that right under the Act as it now stands emphasises that the proper way in which to deal with this sort of default, as it was seen, was to adjourn the matter and allow any prejudice suffered by the other side to be compensated by an adjournment and an order for costs, if appropriate, rather than proceeding to - to plough on and exclude the evidence of one party attending the hearing. Now, the requirement under section 110 of the Act is for the Commission to act according to equity, good conscience and substantial merits of the case without regard to technicalities and legal forms.

PN33

In my submission a refusal to allow evidence to be presented because statements had not been filed in accordance with the requisite timelines was an undue reliance upon a technicality and constituted a failure to act according to equity and good conscience. It certainly constituted a failure to act in accordance with the substantial merits of the case because the merits of the case were unable to be explored by the appellant. Now that section 110 also provides for the ability of the Commission to require evidence or argument to be presented in writing. Now, that was not in fact relied upon in this case.

PN34

And there is something that I would put to your Honour, in addition, as to why the Commissioner was wrong to do what she did. The directions which were issued were issued administratively by the registry. They were not orders of the Commission in the sense of a Commissioner having directed or having ordered that the employer file certain documents and the employee file certain documents within a timeline. They were produced administratively and for that reason it is submitted that an administrative act of the Commission cannot derogate from the requirement of the Commission member sitting to accord procedural fairness to act according to equity and good conscience.

PN35

It elevates those administrative directions to a status beyond that which they have, to say those administrative directions and a failure to follow them, overrides the requirements of the Act and allows the Commission to proceed in disregard of the rules of procedural fairness. But another issue arises from that and that is, because the directions were made administratively, they were not in accordance with section 110(4) in - which says the Commission may require evidence or argument to be presented in writing because they were not in fact ordered by a member of the Commission.

PN36

Section 31 of the Act provides that a - subject to this Act a functional power of the Commission may be performed or exercised by a single member of the Commission. Section 67 which deals with the power of the Industrial Registrar by extension of the registry doesn't include the delegation or authorisation of a power to make directions to make orders in the name of the Commission. That power to direct employees and employers in proceedings of this type to carry out certain steps is not a power of the Commission in a sense contemplated by the Act. It is a - - -

PN37

THE SENIOR DEPUTY PRESIDENT: Why do you say they are not orders of the Commission?

PN38

MR MILLAR: Because the Commission acts through its members not through the Registrar.

PN39

THE SENIOR DEPUTY PRESIDENT: Why do you say this is done through the Registrar?

PN40

MR MILLAR: Well, the orders, as I understand them, they are - I am unaware of any hearing which was accorded or that the orders were actually made by the Senior Deputy President whose name is at the base of the page. It is my submission that the orders were issued administratively and not through any act of the Commission. The Commissioner refers to directions having been issued by the - I will just find that. Well, the directions were issued in the Commissioner's decision without - there is no reference to them having been made by a member of the Commission.

PN41

But in any event the orders that were made, or the directions which were issued, whether they are by the registry or by a member of the Commission cannot derogate from the requirement to accord procedural fairness in accordance with equity and good conscience. It is my submission that there were other ways in which this situation could have been addressed. There were other ways in which the respondent's position could have been safeguarded to ensure that the result of any delay was not to the prejudice of the respondent. There were steps that could have been taken rather than the quite severe - and with respect to the Commission, a quite brutal direction, that no evidence could be presented on behalf of the employer in that matter.

PN42

Now, in the outline of argument I go on to consider the other grounds of appeal. The Commissioner relied upon earlier irrelevant proceedings. It is clear in the documents that the Commissioner had regard to other proceedings. It is the employer's submission that the merits of the present case should have been adjudicated upon without being influenced by what had taken place in other proceedings which were irrelevant and should not have been taken into account. Factual findings. There are a number of factual findings, which it is submitted, were not reasonably open to the Commissioner.

PN43

And would certainly not have been reasonably open to the Commissioner had the respondent been given an opportunity to present its case. Now, there is also what we suggest at paragraph (d) is an irrelevant consideration in the form of the policy document, factory regulations and grounds for instant dismissal. That document which the Commissioner spent some time examining, looking at its language and whether it was known to the employee, was irrelevant because really it did little more than state the position that would have applied any way at common law, that threatening behaviour, threatening another employee was grounds for dismissal.

PN44

That much went without saying within the workplace. Now, that is a quite separate issue to the finding as to whether that threatening conduct took place. But to the extent that the Commissioner dwelt upon the issue of whether the policy document was known to the employee we say that was utterly irrelevant. The question as to whether the document had been provided to the employee, whether he understood it, whether the document should have been in other languages, that is all ultimately irrelevant to the question of what happened in this case.

PN45

Nothing turns upon the existence, the language and the provision of that document. Then in paragraph (e) on page 3 I have referred to irrelevant considerations in the statement of legal position. Now there are two legal issues that crop up in the decision and in the materials before the Commission which, we say, constitute mis-statements which have serious consequences in this case. Now, the Commissioner at paragraph - sorry, your Honour.

[1.43pm]

PN46

THE SENIOR DEPUTY PRESIDENT: That is fine. Would you like a short adjournment, Mr Millar?

PN47

MR MILLAR: I am sorry. I was looking for a paragraph in here which I cannot find but I will perhaps return to it later. It is paragraph 88. I am sorry, your Honour.

PN48

THE SENIOR DEPUTY PRESIDENT: Paragraph 88, is it?

PN49

MR MILLAR: Paragraph 88 - - -

PN50

THE SENIOR DEPUTY PRESIDENT: Yes.

PN51

MR MILLAR: - - - which speaks of the applicant's right to engage in such activities - the applicant's rights to engage in supporting union involvement in the work place and advancing claims on behalf of himself and his fellow employees. I am sorry for the delay, your Honour, I wasn't expecting that to be in the remedy section. The fundamental misconception there seems to be that the action in this case - the industrial action was in some way protected in accordance with the Act. It is of course quite clear that the industrial action that took place here was not protected action.

PN52

There was nothing that happened here that attracts the protection of the provisions of the Act and quite to the contrary, your Honour, it is submitted that industrial action which doesn't attract the protection of the Act may well expose the employee to the prospect of dismissal. It may well expose the employee to disciplinary action within the work place and I will hand up to your Honour an extract from Mackens Law of Employment.

PN53

THE SENIOR DEPUTY PRESIDENT: What paragraph of the Commissioner's decision are you saying appears - - -

PN54

MR MILLAR: Paragraph 88.

PN55

THE SENIOR DEPUTY PRESIDENT: Now, is that the bit - is that the next bit about the - at paragraph 88 it says:

PN56

The applicant has a right to engage in such activities. Those rights are -

PN57

so, the activities you are saying are the protected action, is it?

PN58

MR MILLAR: Well, we say there was no protection - - -

PN59

THE SENIOR DEPUTY PRESIDENT: Yes, no, but what was called - what do you see the Commissioner as - well, is the activities industrial action?

PN60

MR MILLAR: Well, that seems to be what is implied by the previous paragraph, that the industrial action in this case, to the extent that, it says - the respondent appears to be directly - has fallen from grace, so to speak with:

PN61

The respondent appears to be directly related to his activity in supporting union involvement in the work place and advancing claims on behalf of himself and his fellow employees.

PN62

The Commissioner goes on to say that:

PN63

The applicant has a right to engage in such activities. Those rights are in fact specifically protected by the Workplace Relations Act, provided that the employee acts within the law.

PN64

It is submitted that no protection arises in this Act. The term, "Specifically protected by the Workplace Relations Act", in the context of industrial action conveys the impression that the action taken here was in some way protected action.

PN65

THE SENIOR DEPUTY PRESIDENT: But the activities would seem, from the previous paragraph, if that is on which you rely, are union involvement in the work place, supporting that, and advancing claims. Where does the industrial action reference come from?

PN66

MR MILLAR: Well, the Commissioner has referred to the right to engage in such activities and those rights are specifically protected by the Workplace Relations Act. The only way in which that reference can make sense is if the Commissioner was speaking about industrial action, which is protected in accordance with the Act.

PN67

And to the extent that that seems to be what was operating in the Commissioner's mind going from the decision. It is submitted that the Commissioner was in error. There was no protection here. An employee taking action without the benefit of the protection under the Act may well have been exposed to disciplinary sanctions being taken and that is what the passage in Mackens Law of Employment that I have handed up, goes to:

PN68

Industrial action in breach of contract, if sufficiently serious will qualify as misconduct, justifying summary dismissal. It will only very rarely that the strike action will not satisfy the criteria.

PN69

And the orders go on.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes.

PN71

MR MILLAR: So it is submitted that there is a mistake made there on the question of what protection is afforded to the activities that the employee was engaged in. But secondly, and perhaps even more importantly, is that the union's right of entry seems to have been fundamentally mis-stated. If you go to paragraph 21 of the Commissioner's decision, the Commissioner speaks of attempts by the union organiser to obtain entry to the premises. Now, the basis on which the organiser attempted to do this is explained in his affidavit and the exhibits to that affidavit which are Tab E of the Appeal Book.

PN72

The exhibit TC2 refers to a request to enter the premises and the reason for that as stated in the facts, is to "discuss issues with our union members during their lunchtime". And that is followed at TC3 is the employer's response and then TC4 and TC5 are further correspondence on that. And in TC5 the union organiser asserts a right of entry in accordance with the provisions of the Act. Now, it is quite clear that the right of entry that the union is attempting to use here was for discussions with employees and that is under section 285C of the Act.

PN73

Now that right to enter premises is conditional upon work being carried on to which an award applies that is binding on the organisation of which the person holding the permit is an officer or employee. There was no award which attached to the employment in this case. This was not a situation which gave the union any right to enter under section 285C. There had been a dispute finding and it may be that the union had made a mistake. It may well have been a genuine mistake but the union then asserted that this gave them the legal right to enter the premises.

PN74

Now, it is the employer's submission that no such right existed. 285C was not triggered by the events in place, as at the date of the request. Now, it follows from that, that the union was in error in asserting its right to enter. The employer was entirely right to resist it. Now, it is quite clear from the evidence - from the affidavit material filed on behalf of the employee that this right of entry issue was very much the catalyst for the whole series of events that followed. That was a key event in the - the development of events and the eventual showdown that occurred between the employer and employee in this matter.

PN75

So, the assertion that there was a right of entry, which was a key part of the industrial background to this matter, was in the employer's submission totally misfounded. The Commissioner, in her decision, makes it quite clear that she has had regard to the industrial context. She specifically says, at paragraph 67:

PN76

In my view this issue cannot be considered without taking into account the industrial context.

PN77

And that industrial context is one which has, as its base, a incorrect assertion of a right to enter.

PN78

THE SENIOR DEPUTY PRESIDENT: Where does the Commissioner refer to section 285C?

PN79

MR MILLAR: Well, the Commissioner doesn't, your Honour. The Commissioner refers to the right to enter at or an assertion of a right to enter at paragraph 21.

PN80

THE SENIOR DEPUTY PRESIDENT: Yes, but isn't that just repeating the evidence that was given - - -

PN81

MR MILLAR: That is repeating the evidence, but it should also be added that the Commissioner did nothing to correct that assertion. There is no comment made about the incorrect basis on which this saga started.

PN82

THE SENIOR DEPUTY PRESIDENT: But where, in her decision, does she rely on it?

PN83

MR MILLAR: Well, the - she relies upon the industrial context.

PN84

THE SENIOR DEPUTY PRESIDENT: And then doesn't, in paragraph 68 - she explain what that means?

[1.56pm]

PN85

MR MILLAR: Yes, she does, but it is also clear that the involvement of the AWU led to the request to enter the premises, and the reliance upon that by the applicant is shown by the extensive way in which that issue is thrashed out in the witness statement and the exhibits. It is very much a key to their assertion that the employer has acted unreasonably in the chain of events which led to the termination.

PN86

Now, the respondent - the employer's position, and it wasn't given an opportunity to present this evidence, but the employer's position was that there had been a wrongful demand to gain entry that had then led effectively to bans being put in place, and an encouragement by the employee in this case of other employees to ban working overtime, to put in place bans on effectively weekend work.

PN87

Now, that encouragement goes a fair way towards the employee acting in breach of its duty of good faith to the employer. On the employer's account of events, the position goes one step further because, as well as discouragement of other employees from working overtime, the material presented to the employer suggested that the employee had threatened to bash another employee if that employee worked overtime.

PN88

It is the employer's position that that gave rise to a valid reason for termination. Now, central to all of this has been the assertion by the union that it had a right to be there. That assertion of a right of entry was a key part of the industrial context that the Commissioner took into account. So it is submitted that the misleading assertion of a right to entry, together with what appears to be the misleading assertion of protection of industrial action, gave rise to an error in the decision.

PN89

We say that those misleading statements permeate the decision, and that as a result the decision is bad and should be set aside. Those assertions were not corrected by the Commissioner. There is every reason to believe that they were relied upon in the making of a fair decision. Ultimately we say that this question of the right of entry and the question of protected industrial action are complete furphies. They are completely irrelevant, but they are very dangerous furphies. They are very dangerous.

PN90

If the Commissioner proceeded on the wrong impression that, either there was some protection afforded to the industrial action in this case or that there was some right of entry by the union, then that influenced the understanding of the industrial context, and that impacted upon the Commissioner's considerations and the decision that she made. In my submission, the irrelevant considerations on what seemed to be misstatements of law make the decision unsafe. Those misstatements so infect everything that follows that the decision cannot be allowed to stand.

PN91

Now, I have also dealt with in paragraph (f), the final point on the arguable case, the failure to provide reasons for calculation of compensation. Now, the Commissioner provided in her decision a number of different figures, and there is no actual reconciliation of exactly how she comes up with the figure that she has awarded in her order. The order refers to - in paragraph 2, an order for payment of the amount lost because of the termination, of $18,532.95.

PN92

That figure doesn't appear in the actual decision, and it is unclear exactly how it has been reached, but the issue becomes even more perplexing when one looks at the exhibit which was handed up by the then applicant, the employee, exhibit A3, which is behind tab E of the appeal book on the calculation of the compensation claims. Now the bottom line figure there, $18,527.15, is not a long way away from what the Commissioner ordered.

PN93

It may be that there is some reason to believe that the Commissioner used that figure and perhaps modified it slightly for some reason. But that figure doesn't include the ex gratia payment of $2204 - so-called ex gratia payment because it was in fact the termination payment by the employer. The exhibit A3 that has been handed up has that hand-written notation. It is a copy from the Commission's file. It may be the Commissioner's notation, I am not sure.

PN94

But, because that figure, $18,537 that appears on exhibit A3 does not include the impact of the termination payment, we say that can't be the basis of what the Commissioner has decided, because if you look at the final paragraphs of the Commissioner's decision, at paragraph 89, the Commissioner says:

PN95

I am satisfied that the applicant should be compensated for the remuneration lost or likely to have been lost by him because of the termination. In doing so I have taken into account the fact that he is likely to have worked five Saturdays in the period since termination. I have also taken into account the sum of $2204 paid as termination at the time of his dismissal and the income earned since that time.

PN96

So the Commissioner there says that she has taken it into account. The exhibit handed up doesn't take it into account. If she was adopting the applicant's own figures, then the payment should have been a somewhat reduced sum. It is hard to see how a figure of anything more than $16,323, which is the net sum of the amount claimed less the ex gratia payment as it is described, could have been awarded. Yet the Commissioner has come up with a higher figure.

PN97

No calculation has been provided. We have a series of figures which are mentioned in the course of the decision, but there is no reconciliation with the final sum that has been ordered to be paid. So we say that the Commissioner was under a duty to provide proper reasons for her decision, and to the extent that the sum that she has ordered doesn't seem to reflect the material before her and hasn't been explained, we say she has erred in that duty.

PN98

She has either failed to provide adequate reasons, or she has got the figures wrong, or both. In any event that on its own, we say, is sufficient reason to cast doubt upon the correctness of the order that was made as a result. Now, your Honour, the test is whether there is an arguable case. Ultimately you don't need to be convinced on these points. All that you need to believe is that there is a serious issue to be heard on the appeal, that there is an arguable case here that the Commissioner was in error in the decision that she made on one or more of the grounds that I have educed.

PN99

There must be a real issue, there must be an arguable point. There is no reason why you need to be more than 50 per cent certain of the outcome; that is a matter for the Appeal Bench. But at this stage all you need to be convinced of is that there is an arguable basis for the appeal being brought, and that that gives rise to a right for the appellant to obtain a stay of the earlier decision if it also fulfils the second and third parts of the test.

PN100

Now, the second part of the test is the balance of convenience, and the prima facie position is that the balance of convenience favours the preservation of the status quo. And that is dealt with in a decision of Munro J which I will hand up, and has also been dealt with in a decision of Senior Deputy President Marsh. In the first one which is re Herald and Weekly Times Limited, a decision of Munro J, his Honour sets out there the considerations involved in the granting of a stay. Two-thirds of the way down page 2 he speaks of the well established basis upon which a stay falls to be considered. His Honour says:

PN101

Finally, in exercise of its discretion as to whether or not to grant a stay, the Commission has regard to the over-all balance of convenience against the background that, where the intervention of the Commission has imposed a duty or an obligation, the prima facie position is that the status quo prior to the imposition of that obligation would be the normal outcome, pending the determination of an appeal as to which an arguable case has been presented.

PN102

And to similar effect is the decision of Senior Deputy President Marsh in Ampol Refineries v Johnston where that principle has been quoted and the Senior Deputy President says, half-way through page 2:

PN103

No factor has been put in the stay proceedings to lead me to depart from the finding which favours the granting of the stay to re-establish the status quo which existed prior to the Commission's intervention to impose an obligation on the appellant to reinstate Mr Johnston.

PN104

That, in the appellant's submission, is the correct course to adopt here. The appellant has filled the position which the respondent employee had formerly held. It is not a large employer, it is not a large multi-national that can slot additional employees back in readily. For an employer of this type to be required to bring an employee back to the former position will put another employee, or other employees, at risk. There is a - - -

PN105

THE SENIOR DEPUTY PRESIDENT: Is the replacement employee a full-time permanent employee?

PN106

MR MILLAR: Yes. Yes, your Honour.

PN107

THE SENIOR DEPUTY PRESIDENT: And when were they employed?

PN108

MR MILLAR: Sorry, your Honour?

PN109

THE SENIOR DEPUTY PRESIDENT: When were they employed?

PN110

MR MILLAR: I can call Mr Bracken to give evidence, should you wish.

PN111

THE SENIOR DEPUTY PRESIDENT: No, you don't need to call evidence. You can give me a submission on it, unless Mr Farouque is going to challenge it.

PN112

MR MILLAR: There has been restructuring as a result of the departure of the respondent. The respondent was in a leading hand position which has been subsequently filled following a re-organisation. The respondent is already overstaffed at the leading hand level, and if required to take the respondent back would endanger the employment of others within the organisation. The respondent's position is not a vacancy sitting there ready waiting for his reinstatement.

PN113

There is, in the appellant's submission, great inconvenience that would be caused in terms of having to unscramble the egg within the organisation to reinstate the respondent. The appellant would be required to reorganise, and at the end of all of that it may well be the case that another leading hand would need to be terminated. The respondent has now - I should say the appellant has now three leading hand positions, and in the past it had only had two. It is already overstaffed at that level and could not sustain the engagement of a fourth leading hand position. As I say, it is not a large employer.

PN114

THE SENIOR DEPUTY PRESIDENT: How many employees does it have?

PN115

MR MILLAR: Forty-five employees within the factory, your Honour. And in the respondent's section, there are only four or five employees. In the past he was engaged on the afternoon shift. It is a relatively small area, and it is a small number of employees that is involved in this area. By way of comparison with the difficulties which would be faced by the appellant in re-instating the respondent, the respondent's position could adequately be safeguarded by compensation continuing to flow.

PN116

If the appeal turns out to be unsuccessful, the respondent will, subject to the usual rights about mitigation and the assessment of compensation - but the re-instatement order carrying with it the right to compensation would ensure that the respondent was adequately compensated, that his position was not prejudiced by the delay in implementing the re-instatement order. If the re-instatement in compensation orders are stayed, the respondent will, in the long run if he is successful in resisting the appeal, have missed out on nothing. Compensation will be an entirely adequate remedy in the end.

PN117

The other issue, of course, is that if the appeal is successful and the original decision has not been stayed, then the appellant is going to have to look to recover the money that has been paid to the respondent. That, one could justifiably speculate, may cause some difficulty. It is better not to pay the money at this stage rather than have to claw it back at a later time. And that was a consideration which influenced Senior Deputy President Williams in the Swersky and Velos case that I handed up earlier, where his Honour says in the second-last paragraph of his decision:

PN118

As to the questions of the balance of convenience and purpose, the arguments favour the appellant. In a case such as this, where the order that is the subject of the appeal imposes an obligation upon a party, prima facie the balance of convenience favours the granting of a stay.

PN119

Again the point was made before:

PN120

In the light of the submissions made on behalf of the respondent, it is distinctly possible that, should a stay not be granted and the amount of money as ordered be paid to the appellant, there may be some difficulties in recovering that money if, in the end result, the appeal is successful. Then in the circumstances the application for a stay order will be granted.

PN121

In the submission of the appellant, that approach is indistinguishable from the present case. The respondent's position will be adequately safeguarded, whereas the employer's position would be prejudiced if the stay were not granted. And then finally, your Honour, the purpose of the stay is the third part of what the Commission is to have regard to. There is a clear purpose for the stay here. There are of course cases where the granting of a stay would be to little effect.

PN122

There is a real purpose to be served here to preserve the status quo pending the outcome of the appeal. The purpose is to prevent the appellant being required to alter its position to its prejudice pending the outcome of the appeal as against the protection of the rights of the respondent that would be accorded under the granting of the stay because of the continuing accrual of compensation.

PN123

Now, your Honour, it is the submission of the appellant that there is an arguable case here that the balance of convenience favours the granting of the stay that has been sought, and that a clear purpose would be served by the granting of the stay. I have also mentioned in the submissions on the balance of convenience the question of the tax impact of any requirement to pay money to the respondent.

PN124

If, as is quite likely, this saga stretches over two tax years, there will be tax implications in that a group certificate would be required to be issued which, if the respondent later on has to repay the money, would have to be amended, and if the tax return has already been submitted there would be difficulties there to overcome. It is an added consideration in terms of the balance of convenience favouring withholding the money for the time being, and if the appeal is ultimately unsuccessful the money could then be paid without the tax consequences of attempting to undo a payment should the appeal succeed. If your Honour pleases, they are the submissions of the appellant.

PN125

THE SENIOR DEPUTY PRESIDENT: Mr Millar, has your client given any consideration to placing the money ordered under paragraph 2 of the Commissioner's order in some sort of trust arrangement?

PN126

MR MILLAR: Yes, I have sought instructions on that, your Honour. Should that be the Commission's wish to protect the position of the respondent pending the outcome of the appeal, then the appellant is prepared to do that, to place the money in an interest-bearing trust account and ensure that that money remains untouched in that account pending the outcome of the appeal. That would certainly be an acceptable way to proceed should the Commission so wish.

PN127

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Farouque.

PN128

MR FAROUQUE: If the Commission pleases, could I just have a short adjournment?

PN129

THE SENIOR DEPUTY PRESIDENT: Yes, certainly. Would 5 minutes be sufficient?

PN130

MR FAROUQUE: That would be sufficient.

PN131

THE SENIOR DEPUTY PRESIDENT: I will adjourn for 5 minutes.

SHORT ADJOURNMENT [2.20pm]

RESUMED [2.30pm]

PN132

THE SENIOR DEPUTY PRESIDENT: Mr Farouque.

PN133

MR FAROUQUE: If the Commission pleases. Your Honour, I seek to hand up a short submission on the principles applicable in the context of the stay applications. I might just quickly run through those principles because they are at some variance with the principles that my learned friend sought to state to the Commission. Simply speaking there are two matters that the Commission must address itself to, an arguable case brought on the question of leave and the appeal itself, and secondly, that the balance of convenience favours the stay.

PN134

It is of recent authority before this Commission by way of the Full Bench decision in the Coal and Allied v Crawford matter. The print number referred to there is in paragraph 1, that there is no fettered approach, or no guideline or no previous position to say that the status quo prior to the making of the order should be preserved. That is no longer the position in relation to consideration of stay applications by the Commission. The principle simply is where does the balance of convenience lie, is there an arguable case?

PN135

There is no prima facie position which favours the granting of a stay. That is no longer good authority and I refer to the decision of the Coal and Allied case and a further Full Bench decision in Edwards v Telstra which I have recounted there. I have copies of the Coal and Allied case to hand up to the Commission. And paragraph 17 is the particularly relevant part where the balance of convenience lies may be - may sometimes be difficult to discern but in our view no purpose is served by formulating generalisations about where the balance might lie in particular types of cases. All of the circumstances must be considered.

PN136

In my submission there is no predisposition on the part of the Commission that a stay - or prima facie position that a stay be granted. It is just a matter of the assessment of those factors. Now, in relation to the orders to be stayed, relevant circumstances were covered in paragraph 3, including the nature of the order to be stayed, the impact of the order or decision on the parties on the one hand and the impact of the stay of the order or decision on the parties on the other. So those are relevant matters.

PN137

Different considerations apply in relation to - may apply in relation to stay of a reinstatement order and stay of a compensation order. Paragraph 5 I recount the Commission may in fact stay part of a decision. It may stay, for instance, the compensation part of an order while allowing the reinstatement part of the order to run. That is a course which has been adopted in two decisions which I have referred to, Barne v The ALHMWU and Bridgestone, a decision of Deputy President Duncan and a decision of - Pacific Coal v Smith, a decision of Vice President McIntyre.

PN138

I will hand up copies of the decision of Barne v The ALHMWU for the Commission's consideration. In that extract a decision of the Commission as I have submitted stayed part of the order, that relating to the compensation, but let the reinstatement order to take its course.
[2.34pm]

PN139

Having summarised those principles then, I now turn to the matters which the respondent relies as establishing an arguable case in relation to the appeal. Now to do that, I think it is important the Commission have a grasp of the nature of the respondent's conduct in this particular matter, reflect on the reasons provided to the Commission at first instance in - and the reasons now provided to the Commission by my learned friend.

PN140

Your Honour will remember the paragraph that I referred the Commission to where - when Commissioner Whelan sought some explanation as to the reasons for the respondent's delay. Mr Draper, who appeared then appeared for the appellant proffered the explanation that it was a hands on business. That was the apparent reason and presumably the Managing Director of the appellant had some commitments in relation to its business. I presume that was how it was put.

PN141

We come to the Commission today and before your Honour, reasons are proffered to the effect that it was Christmas, the Managing Director was on leave for four weeks, excuses of that nature. It was then referred to that the there was - referred to as some oversight in attendance to the issue of compliance in a timely fashion, those were the effect of my learned friend's submissions and it is important to consider the nature of those excuses which are proffered and presumably will be offered in the context of the final hearing of the appeal in the context of the respondent's conduct in this matter.

PN142

Because the breaches of the Commission's directions are not a matter of oversight or the like, they are an apparent conscious decision on the part of the appellant to frustrate the processes of the Commission by simply ignoring any compliance or attendance at procedures of this Commission and that is recounted in the decision of Commissioner Whelan from paragraphs 6 - paragraphs 4 we have a reference to the - sorry, paragraph 3 we have reference to the fact that the application was lodged before the Commission on or about 29 October.

PN143

The matter was listed for conference before Mr Merriman and there was notification to the respondent by express post on 1 November 2001. At the conference which was on 20 November there was no appearance whatsoever on behalf of the respondents - on behalf of the appellant, Mr Warner having attended with his union representative. A notice of election of lodged on about 6 December. On 7 December an apparent excuse is provided and I am not sure whether the Commission has a copy of the original filed with it but Commissioner Whelan recounts that a letter was sent to the Commission to the effect that it was unable to attend because - that due to a picket line and strike at the premises, mail was not getting through and apparently it was unaware of the conciliation conference and it had not attended apparently for that reason.

[2.38pm]

PN144

Now, before the Commission was that prior to the sending of that listing notice that in fact there had been a return to work on the part of employees at Foster Plastics, the appellant. So, there could be in my submission and this is apparent from the Commission's decision, the claim by the appellant that it was unaware of the hearing is just simply untrue. Simply untrue and it has sought that on that occasion, as the Commission no doubt has reflected in paragraph 4 and later in the reasons, the veracity of the appellant's excuses are simply without foundation.

PN145

Now, so we have a situation where the appellant files no notice of appearance, no R21, has never filed an R21 to my knowledge or has never served one on the applicant - on the respondent in this Appeal. Has not appeared at the conciliation conference, provides an explanation, which on reflection of the events and the sequence of events is patently false, has not complied with directions of the Commission in relation to the filing of witness statements and submissions despite various variations to the orders of the Commission.

PN146

And it is recounted in Commissioner Whelan's decision, it is evidently and apparently notified of potential consequences of not complying with the directions of the Commission and they are directions of the Commission, your Honour, despite what my learned friend says. The listing notices and the directions are clearly said to be made by Senior Deputy President Williams. They are clearly directions of the Commission, so that in my submission the respondent's - the appellant's submission in that regard is simply without foundation.

PN147

It consciously ignores those directions and then attempts to turn up on the day of the hearing proffering witness statements - not having sent them to the applicant, not having forwarded them at all, not indicating or disclosing anything of its case but expects to turn up in the context of its contiguously disregard to the processes of the Commission and expects to have the indulgence of the Commission in the filing of witness statements.

PN148

In my submission it is apparent that the appellant was made aware of the consequences of its failure to comply. It was given a fair go in terms of compliance. There were variations to the directions of the Commission. It was given further opportunity. It failed to file and its failure to file was not as a result of mere inadvertence or it was busy, in my submission it is apparent that it was a conscious decision on the part of the appellant to ignore the processes of the Commission.

PN149

Now, the Commission had before it, evidence of its conduct in other matters which arose - some of them arose out of the same factual sub-stratum as this present dismissal matter. It had before it evidence of the conduct of the appellant in a section 99 dispute, prior to the termination of the applicant's employment. It had evidence of that conduct in that section 99 dispute where it failed to attend dispute hearings before Commissioner Cribb between the AWU v Foster Plastics, including failure to appear or failure by company managers including Mr Bracken who is seated at the Bar table.

PN150

Failure to respond to summonses issued by the Commission. Failure to respond to summonses issued by the Commission in the context of that proceeding. Failure to appear on the part of another manager of the appellant, Mr Radley. Failure to respond to summonses on an occasion as well. So we have evidence of conscious disregard to the processes of the Commission and in my submission evidence of the fact that the appellant was clearly attempting to frustrate the processes of the Commission by just shutting up shop and ignoring it and that is the course that it embarked upon and now its course it has adopted in this particular matter and now it has come to the Commission and said, "Well, I was busy, it was Christmas". Those excuses or explanations do not bear out, your Honour.

PN151

Now, we also have - there was also evidence before the Commissioner in the first instance of failure of the appellant to appear before Commissioner Cribb in hearings in relation to the making of enterprise agreements. There were compulsory conference - a compulsory conference was scheduled on 3 December 2001. That was before Commissioner Whelan, evidence of that fact, and failure of the appellant to attend at that compulsory conference and at other hearings in the context of that particular proceeding that was also before the Commission and it is apparent that the appellant again engaged in that particular matter in conscious disregard of the processes of the Commission.

PN152

There was also before the Commission, evidence of the appellant's conduct in another matter, an unfair dismissal matter, which was dealt with by Commissioner Hoffmann. It was a matter in Melbourne. In that particular matter the appellant failed on that occasion to file a notice of appearance, appear at the conciliation conference, failed to file material in compliance with directions of the Commission, failed to appear at the ultimate arbitration and the Commissioner dealt with the matter on that particular occasion. When efforts were made on that occasion to contact the appellant, apparently the excuse was proffered that the managing director was unavailable.

PN153

A request was made for the managing director to contact the Commission and no contact was made on that occasion. So, we have here a course of conduct on the part of the appellant in proceedings before the Commission, which are - some of which and the bulk of which arise out of the same factual substratum, are to ignore procedures and processes of the Commission, have complete disregard to them and that was before Commissioner Whelan and Commissioner Whelan was well, entitled to take that into account in exercising her discretion whether to allow the respondent to rely on witness statements or call evidence in a matter that was before her.

PN154

They are relevant to the matter that was before Commissioner Whelan because they bore on the respondent's - the appellant's explanation as to its failure to comply with the directions of the Commission. So we - in our submission they were relevant matters, they were relevant considerations for the Commission to take into account. They bore on the excuse which the appellant proffered on that particular occasion.

PN155

There was evidence of a conscious decision on the part of the appellant to ignore the processes of the Commission and they were, indeed, a damning indictment in terms of the appellant's conduct in this particular matter. It was apparent about the nature of their conduct. It was a matter which the Commission was well entitled to take into account and in my submission they weren't irrelevant considerations. They were very relevant and the Commission properly took them into account.

PN156

So in my submission, in the circumstances where the appellant was aware of the potential consequences of its failure to comply, where it had engaged in a disregard - a conscious disregard of the processes of the Commission - it made a conscious decision to do that. It was not a denial of procedural fairness for Commissioner Whelan to exclude the appellant from calling evidence in the matter before her.

PN157

In my submission there was no denial of procedural fairness. It was given a proper opportunity to present its case. It failed to do so. It sought on the day of the hearing, without disclosing any of its case, to the applicant - just to turn up and run its case. Now, my learned friend has said well the proper course would have been to grant an adjournment to - there were processes in the Act about the awarding of costs. None of that was sought by the representative for the appellant at the hearing.

PN158

He did not make an application to have the matter adjourned. He did not make any offer to pay the costs of the - the applicant in that - on that particular day. None of that was offered. None of that was sought from the Commission. The appellant was represented at - before Commissioner Whelan and did not take the opportunity to make those submissions or make those applications to the Commission or make any of those offers to the applicant.

PN159

It sought merely to turn up one or two minutes before the hearing after some discussion between myself and Mr Draper he handed me a couple of witness statements that he said he intended to rely on. He did not disclose them at any time prior to that and expected to be able to call that evidence in the context where he had been made aware that if it failed to comply with the directions then it may be excluded.

PN160

Now, in my submission the appeal grounds referred to or relied upon by the appellant, paragraphs 1 and 2 of the Appeal are not made out. The Commission has the power under section 110 of the Act to determine in paragraph 3:

PN161

Periods for the fair and adequate presentation of cases. It may require, under paragraph 4, evidence to be presented in writing and decide the matters on which it will hear oral evidence or argument.

PN162

The Commission exercised its powers as embodied in those particular procedures - those particular provisions and did so properly in the matter before Commission Whelan. In my submission it is simply not arguable for the respondent to contend that it was not accorded procedural fairness when it was given the opportunity to file the material, file submissions.

PN163

It never in my understanding proposed to file any written submissions as to the outline of its case. It merely provided two witness statements. In my submission it was told what the consequences were in numerous directions of the Commission. It chose to ignore that. At the last minute, evidently in response to some letters sent by the applicant in the week prior to the matter, has sought to turn up at the hearing and file witness statements.

PN164

In my submission it is simply not the case that it was denied procedural fairness. Now, my learned friend has referred or extracted a passage from a decision of the Queens Bench division in the Queen and Thames Magistrate's Court. They refer there to the - according of procedural fairness to a party in a proceeding. In page 2 of my learned friend's extract of that decision it refers to procedural fairness as:

PN165

Extending to reasonable opportunity to prepare your case before you are called upon to present it.

PN166

And the appellant was given that opportunity. It was given the opportunity to prepare its case. Given an opportunity to present its case. It failed to do it in compliance with the directions of the Commission. It was aware of the potential consequences of its failure and it chose simply to ignore it. There was no failure to accord procedural fairness in my submission, especially having regard to the appellant's contempt of the processes and procedures of this Commission.

PN167

Now this is in a background where other parties are seeking relief against the appellant, but of course, when the appellant is seeking relief of its own, when seeking some orders from the Commission - when it is seeking a 127 order, when it is seeking a 166A certificate, when it is filing an Appeal, seeking some relief from the Commission, of course it has the ability to turn up to the Commission and present its case apparently.

PN168

That in my submission goes to the good faith of the appellant's conduct in this matter. Now, I have already referred to the Appeal ground 3. The third appeal ground of the appellant's Notice of Appeal. In my submission the Commission was entitled to take those matters into account. Its conduct in other proceedings, some of which arose out of the same factual substratum, and in relation to the decision of Commissioner Hoffman, which was another termination matter, Mr Draper offered the excuse before the Commission, or referred to - there was a distinction between industrial matters - he was attempting to proffer that excuse - and other matters.

PN169

Commissioner Whelan of course promptly referred him to the decision of Commissioner Hoffman, which was a similar 170CE application and in that conduct - in that the conduct of the appellant was substantially the same - just ignored the processes of the Commission. So, in my submission it was an entirely relevant matter, having regard to the submission that Mr Draper sought to make. Now, I turn now to some of the other grounds of appeal. The appellant has referred to an apparent error on the part of the Commission in Appeal ground number 4 - an apparent error in failing to find a valid reason for the termination.

PN170

Now, there appears to be some substantial slippage in the reasons now proffered as the valid reason for the termination in the context of this stay application. Before the Commission, at first instance, well I turn to the actual events of the termination. The reason provided to the applicant at the - in his employment separation certificate and notification attached to that certificate was to the effect that he had engaged in violent or threatening behaviour to company personnel.

PN171

That was the stated reason for the termination in the context of that employment separation certificate. Mr Draper, in his submissions before the Commission, his submissions were whilst that was the reason for the termination, violent or threatening, the events which occurred on the day of the termination. That was his reason. That was the reason that Mr Draper proffered as the respondent's reason for the termination.

PN172

But here in the context of this stay application we now have the appellant saying, "Well, the Commission should have found a valid reason for the termination, based on a refusal to work reasonable overtime as directed, taken unprotected industrial action by way of implementing work bans and using other employees and the appellant refusing to work as directed. It also refers to a threat to bash a fellow worker if that person worked overtime and there are additional grounds which the appellant now says constituted valid reason for the termination. These are not grounds which can be relied on in terms of some retrospectively acquired information. These are matters presumably that would have been in the knowledge of the appellant at the time that the termination was effected.

PN173

It now comes to the Commission and offers some, in the context of this stay application, different reasons which it never offered to the Commission at first instance as valid reasons for the termination and in my submission it is simply not borne out by the conduct of the appellant in effecting the termination, the conduct of the appellant in the reasons offered by Mr Draper at the hearing before Commissioner Whelan as to the reason for the termination so we submit that in relation to paragraphs 4 to C it was certainly not made out that those could ever constitute valid reasons for the termination on any Appeal consideration of the matter.

PN174

Now, the evidence before the Commission at first instance was that the appellant - that the respondent in this matter, Mr Water, had never - did not threaten any other employee in terms of any physical violence. That was the evidence before the Commission. That was the uncontroverted evidence before the Commission and I say that not only because the respondent was not allowed to rely on witness statements before the Commission, but because Mr Draper never put to Mr Water, when he gave evidence, that he had in fact threatened other workers.

PN175

That proposition apparently central to the case was never put to Mr Water when he gave evidence and that was a factor which was reflected upon in the Commission's consideration - Commissioner Whelan's consideration. The fact that the denial by Mr Water of any threat to any other employee of the appellant was never the subject of any cross-examination by Mr Draper. It was apparently uncontested in the manner in which it put its case. Mr Constantinou, when he gave evidence, was not even cross-examined at all. There was no cross-examination of him.

PN176

His evidence went in uncontested and apparently uncontested. So, in my submission there is no error as my learned friend seeks to establish in terms of the finding of a valid - that there was no valid reason for the termination in the circumstances where Mr Water denied having engaged in any violent or threatening conduct and that denial was not the subject of any cross-examination or challenge by the appellant's representative at first instance.

PN177

In my submission, paragraph 4 of the - of the Notice of Appeal is not at all arguable. Now, in paragraph 5 my learned friend submits that the Commission erred in finding that the respondent had been notified of the allegations that despite finding that Mr Water had been notified of the allegations against him and given an opportunity to respond, the Commission in fact erred by finding that the applicant's termination of employment procedure to be rather barbaric.

PN178

Now, this finding needs to be reflected or the Commission needs to reflect on this finding in the context of the evidence before the Commission. Mr Water's evidence was to the effect that he was the subject of humiliating and demeaning treatment by the appellant in the course of the termination transaction.

PN179

That was his evidence - that he was the subject of humiliating treatment in the front of other employees of the appellant and I refer the Commission to the Appeal Book where Mr Water's witness statement is contained that he was the subject of this interrogation at paragraph 43 - repeated yelling at him. He is subject to some attempt to grab papers out of his hands, which he was shocked at. He is taken and escorted to a locker. He is, it is suggested that he will be searched. This all occurs in front of other staff of the appellant and it was in that context that the Commission was entirely - it was entirely open to the Commission - there was no error in the finding that the termination procedure was barbaric.

PN180

Now, so in my submission that ground is not made out - it is not an arguable ground in terms of the Appeal, having regard to the evidence. Now, my learned friend submits that the - there was some error and a failure on the part of the appellant. There was some error in finding that the respondent's actions were inadequate - and it should be the appellant's actions were inadequate in only providing company policies in English.

PN181

In my submission, that also is not a matter which is made out. The Commission's findings in relation to this matter are referred to in paragraph 78. It is to the effect of the fact that the application was unable to read English. His competence in spoken English, while may be sufficient for the facility of conversational English tailored to the needs of the work place, did not mean that he was proficient in the language or that he had the capacity to read. That was the evidence before the Commission. In my submission, in the context where the - no explanation was made to explain what the content of the document provided to the applicant at the time of the termination was given, that in those circumstances there is no error disclosed in paragraph 6 of the appellant's Appeal Notice.

PN182

In relation to paragraph 7, similarly the evidence before the Commission was that the - Mr Water did not read English and did not understand the document that he was provided with at the time of the termination and in my submission, paragraph 7 is simply not made out.

PN183

In relation to paragraph 8 of the Appeal Notice, in relation to subparagraph (a), it is attempted to - it is implied or suggested there that there was some finding by the Commission that violence or threatening behaviour could not be grounds for dismissal. In my submission that it is simply not the case. That was not the nature of the finding made by the Commission. The Commission never suggested in is reasons that violence or threatening behaviour could not be grounds for a dismissal, so that ground is simply not made out.

PN184

It was never in the Commissions reasons, in relation to paragraph 8(b) suggested that the fact that the document was in the English language, excused any violent or threatening conduct. That was not the reasoning of the Commission and simply that ground is not made out. My learned friend did not even refer to these grounds in the context of his argument that he put before the Commission.

PN185

Paragraph (c) - that whether the appellant - that matter we submit it entirely irrelevant in the context where there is a circumstance where an employee - documents an employee has provided in the context of a termination at the termination transaction may well be relevant to notifying the reasons for whether an employee was notified for the reason for the termination or not. So, in my submission that is an entirely relevant consideration. There is no error on the part of the Commission in taking - in its consideration about that matter.

[3.08pm]

PN186

Now, para 9 of the appeal notice, the Commission's consideration of that matter was in reference, as my learned friend observed, and he couldn't find it initially, he was surprised to find it in the context of the remedy section of the Commission's decision - and it went - and the reason for that is simply this. Mr Draper in his submissions on the issue of reinstatement at paragraph number 313 of the transcript, sought to suggest to the Commission that reinstatement should not be offered because of the disruptive effect that the reinstatement would have on employees of the appellant.

PN187

That was the submission that he put. He referred to a subset of employees currently now fulfilling the role previously performed by Mr Warda. Now, in that context where that submission was put, the Commission was entirely - it was entirely appropriate for the Commission to consider that the appellant - that Mr Warda's fall from grace, so to speak, was a result of his supporting the union involvement in the workplace and advancing claims on behalf of himself and his fellow employees, and in effect because that was not disruptive to other employees he was entitled to fulfil those roles.

PN188

So in the context of responding to a submission put to the Commissioner as to the remedy it was entirely proper for the Commissioner to make that particular finding. She had to deal with it and she dealt with it. Mr Warda had rights to engage in industrial activity at the workplace and it was not of disruptive effect in the manner which the appellant sought to portray as being against the fact of reinstatement. So in my submission the context in which that observation is made in the remedy section relates to the submission put by Mr Draper against the fact of the providence of reinstatement. So in my submission paragraph 9 is simply not arguable.

PN189

Now, my learned friend also - I think paragraph 10 substantially duplicates paragraph 9. In my submission I rely on the same arguments in relation to the - whether that matter is arguable. Now, in relation to paragraph 11 of the appeal notice that also is referrable to the submission that the Commissioner put - the Commissioner - sorry, the findings that the Commissioner made as to the right of the applicant to engage in activities under the Workplace Relations Act in the context of considering remedy, provided that he acts within the law, and that is simply an unexceptional statement as to - in its consideration of the appropriateness of reinstatement.

PN190

Now, my learned friend sought to broaden out the appeal grounds by saying that the Commission erred by taking into account in paragraph 12 of the appeal notice an irrelevant consideration; that is a right of entry. That is just simply not disclosed in the reasons of the Commission that the Commissioner made any finding in that regard and we simply submit that that is just not arguable. He referred to the - my learned friend referred to paragraphs 87 and 88 that as I submitted referrable to the submission put by Mr Draper as to the appropriateness of reinstatement.

PN191

In relation to the further ground, paragraph 13 of the appeal notice - that is the calculation of the compensation - my learned friend took some time to go through that. I just want to hand up to the Commission some calculations which just clearly establish the Commission's reasoning in relation to this matter. The Commission determined that the applicant should be reinstated. The Commissioner determined that he should be paid compensation for the remuneration lost or likely to be lost by him because of the termination.

PN192

Those are just simple repetition of the CH - relevant CH provisions. At the time of the hearing the applicant had been unemployed then for 21 full weeks and the calculations which had been handed up to the Commission reflected that fact. By the time the Commission made the order it was 23 full weeks of unemployment on the part of Mr Warda and in that context, that being the time between the date of the termination and the date of the reinstatement, the Commission merely calculated the matter on 23 weeks and the Commission deducted the amount of 2204 paid as termination at that time.

PN193

It referred to the basis of its calculations in relation to that particular matter. In my submission the calculations are apparent and clear when one reads the decision and the reason of the Commission that the applicant be compensated for the remuneration lost or likely to have been lost by him because of the termination. The evidence as to his lost income was before the Commission - as to the income that he had earned was before the Commission. There was no contest in relation to that matter. In my submission the reasons are clear.

PN194

Paragraphs 14, 15 and 16 in my submission are simply not sustainable. The weight of the evidence was to the effect of the findings that the Commission made as I observed. The applicant's evidence, his denial as to the allegation was not the subject of cross-examination by Mr Draper. Mr Constantinou's evidence went in uncontroverted and was not the subject of any cross-examination whatsoever. The weight of the evidence was entirely in favour of the findings made by the Commission. So in my submission having regard to the matters that are referred to, there is simply no arguable case on the part of the appellant.

PN195

It does not even reach that threshold. It was not denied procedural fairness and it was given an opportunity to present its case. It made a conscious decision not to comply with the directions of the Commission and was aware, would have been notified of the potential consequences of such conduct and ran the risk, so to speak, and now seeks to remedy its own conduct. In my submission there is simply no failure to accord procedural fairness. It was given an opportunity, it didn't take it up. Now, that goes to the matters of the arguable case.

PN196

I have a witness statement of Mr Borowick which I think might have made it to the Commission. It was faxed to the Commission this morning.

PN197

THE SENIOR DEPUTY PRESIDENT: I haven't seen this prior to this hearing, Mr Farouque, but I have it now. Yes.

PN198

MR FAROUQUE: I would seek to call Mr Borowick to tender this statement. It goes to some matters in relation to the balance of convenience point. I am not sure where my learned friend has any objection.

PN199

MR MILLAR: Your Honour, I do have objection to this statement. This is not an enforcement proceeding in the Court under section 178 of the Act to implement the orders that were made earlier. It is common ground I understand that the orders were made by Commissioner Whelan. The appellant has done all it reasonably can to bring this matter on to the Commission for the seeking of a stay of those orders and it could not have reasonably been expected to have done anything more.

PN200

In fact the Commission's file will disclose a letter sent to the associate to Commissioner Whelan seeking a stay in the immediate aftermath of the decision having been made. None of this material disclosed in this affidavit is relevant in my submission to the issues raised in the stay application. The practice of the Commissioner, as I understand it on stay applications, is one which does not readily involve the giving of oral evidence. I can see little reason in principle and little probative value that would be added by allowing Mr Borowick to give evidence.

PN201

THE SENIOR DEPUTY PRESIDENT: Mr Farouque, I didn't allow Mr Millar to call a representative of the company in respect of submissions - in respect of balance of convenience, but I allowed him to put submissions on the issue and I will allow you to do the same. So I won't accept the witness statement but I will allow you to put submissions in regard to it.

PN202

MR FAROUQUE: If the Commission pleases. Your Honour, in relation to the balance of convenience matters there is an ongoing effort by the AWU to seek improved terms and conditions of employment at this workplace. Mr Warda until the termination of his employment had been the principal contact of the AWU at the workplace. His continued absence from the workplace has detrimental impact in terms of the union's capacity to communicate and organise workers at the Glenroy factory to negotiate and achieve improved terms and conditions for those workers at the Glenroy factory.

PN203

In my submission that is one factor in relation to the balance of convenience which should bear on the Commission's assessment of this particular matter. We put that matter before the Commission. The union is continuing its efforts to improve terms and conditions at that particular workplace. The evidence is that the workplace is made up predominantly of workers of non-English speaking background, a vulnerable group of workers in my submission.

PN204

Mr Warda, who initiated contact with the union, was the principal contact of the union at the workplace and in my submission his absence has a detrimental impact on the capacity to inform and organise and communicate in relation to the AWUs efforts to prove terms and conditions at the workplace. In relation to other matters which - so we submit that is a significant factor in the context where there is - and there was evidence before the Commission as to the - of some industrial disputation at this workplace, that that is, indeed, a relevant matter in favour of the balance as to the granting of a stay in favour of Mr Warda.

PN205

Furthermore, there are other matters which I wish to refer the Commission to. Mr Warda at a financial disadvantage in the context of not being enabled or allowed to return to work in this circumstance. He was in the context of his employment with the appellant earning over $1100 weekly at the time of his termination in terms of wages and overtime payments. He will be at a substantial disadvantage in relation to his financial position if he is not allowed to return to work and engage in productive work in the service of the appellant.

PN206

He has three children aged four, three and three months. His wife does not work. For him having the security of and continued full time employment is an important matter and in my submission that is a consideration which bears heavily in his favour in relation to the balance of convenience. If I turn to the considerations which the appellant put in relation to the balance point, it is simply in my submission not a convincing suggestion that employees of - full time employees of the appellant who have been there for some period of time will be put off if the Mr Warda is reinstated.

PN207

In my submission that is just not a convincing submission and there is - the Commission should not have regard to that matter or should find that it is not a persuasive factor in consideration of the balance. Those people, as my learned friend referred to, were long serving employees, or a long serving employees and in my submission it is not convincing to suggest the appellant will simply put those people off. So that should not bear on the Commission's consideration.

PN208

In relation to the obligation to repay, in my submission if Mr Warda is engaged in productive employment with the appellant then he will have no obligation to repay those sums to the appellant which he provides in return for his service. So in relation to that part, as to the obligation to repay, the balance simply is neutral as between the parties. The appellant will gain the benefit of Mr Warda's service. He was a seven year standing employee in the service of the appellant. We have in Mr Constantinou's witness statement which is before the Commission at first instance, a reference to the appellant in the view of other employees as being a fair and effective supervisor and rendering faithful service to the appellant.

PN209

So in my submission so far as that matter in relation to the repayment issue, it is simply not persuasive. If the Commission is persuaded that the payment of lump sum compensation, that difficulties in terms of repayment of that sum are persuasive to the Commission, then in relation to the lump sum part of the order, or the compensation part of the order - in my submission if the Commission finds that that part of the appellant's submission is at all persuasive, then it would be simply open to the Commission to accept an undertaking - or to make an order to the effect that the compensation ordered paid by Commissioner Whelan be deposited into a bank account - a joint bank account opened in the name of the appellant and the respondent's solicitors, a joint bank trust account, that that compensation be paid into that account.

PN210

So in my submission that would neutral that issue if it at all be persuasive to the Commission. If the Commission pleases that concludes my submissions in relation to this matter.

EXHIBIT #F1 OUTLINE OF SUBMISSIONS ON STAY PRINCIPLES

EXHIBIT #F2 CALCULATIONS ABOUT COMPENSATION

PN211

THE SENIOR DEPUTY PRESIDENT: In regard to the last issue that you raise, one of the issues that frequently arises in matters such as these is the issue of what is to be done with compensation, whether it should be paid or whether it - and if it is whether - if the appeal is successful is capable of being repaid. And one of the things you have raised is the notion of the interest-bearing trust account in the names of the respective solicitors.

PN212

Could I ask you to seek instructions on whether in the event that I was not persuaded by the appellant's arguments for the granting of a stay,but was concerned about the issue of the payment aspect, whether your client would be prepared to reach an agreement with the appellant that the matter be dealt with by the money being paid into a trust account.

PN213

MR FAROUQUE: I will - - -

PN214

THE SENIOR DEPUTY PRESIDENT: To put it plainly, one way of dealing with this matter if I am not persuaded by the appellant's arguments, is to not stay the order but it be not stayed on the basis that the money would be paid into a trust account by agreement between the parties, that part of the order in effect not then pursued, with the rights, of course, of the parties to seek to come back to the Commission should there be some difficulties arising in that regard.

PN215

MR FAROUQUE: I will seek those instructions and I will perhaps do that - I might just need a couple of minutes to do that and explain the - - -

PN216

THE SENIOR DEPUTY PRESIDENT: Yes, I will adjourn briefly so you can those instructions and I will then go into - allow Mr Millar to give a reply.

SHORT ADJOURNMENT [3.28pm]

RESUMED [3.34pm]

PN217

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Farouque.

PN218

MR FAROUQUE: If your Honour pleases. I have taken instructions and I am able to indicate that the applicant, Mr Warda, would agree to that course, would agree to the lump sum for compensation referred to in paragraph 2 of the Commission's order being paid into an interest bearing solicitor's trust account.

PN219

THE SENIOR DEPUTY PRESIDENT: Might I also understand that that would include the superannuation contributions as well?

PN220

MR FAROUQUE: That is right, they then would extend to that matter until the decision, of course, of the Full Bench.

PN221

THE SENIOR DEPUTY PRESIDENT: Mr Millar.

PN222

MR MILLAR: Your Honour, on that point that my learned friend just addressed, the decision of Senior Deputy President Watson in ANZ Banking Group v Levendakis provides a useful analysis of the way in which such orders can operate. I think that may have been the first decision I handed up to your Honour.

PN223

THE SENIOR DEPUTY PRESIDENT: Yes.

PN224

MR MILLAR: In paragraphs 8, 9 and 10 Senior Deputy President Watson deals with the making of a payment into an interest bearing account pending the determination of the appeal and, as I indicated earlier, the appellant would be prepared to consent to the making of an order along those lines. Senior Deputy President Watson, I should add, in paragraph 11 goes on to consider the very point that the appellant is submitting today that a requirement to reinstate would require inconvenience to the appellant as it subsequently reorganised its structure. It has restructured the relevant operations to fill the position which was formerly held by the respondent.

PN225

Now, my learned friend made much in his submissions of an alleged "conscious decision of the appellant to ignore the processes of the Commission", and I think he also said "conscious disregard of the processes of the Commission", "evidence of conscious decision to ignore the processes of the Commission", similar phrases. It is my submission that there is no evidence of that conscious disregard of what the Commission has ordered. There is material before the Commission which certainly suggests that deadlines had been missed and that the appellant had failed to appear on occasions.

PN226

Nothing goes as far as that "conscious disregard". There is no evidence of that. And the reason why there is no evidence on those issues is that the appellant was never allowed to get into the witness box. The appellant was never allowed to put its side of the story, never about to explain what had occurred both in relation to the termination of the respondent and in relation to the conduct of proceedings.

PN227

The reason for the paucity of evidence before the Commission on what the appellant had done and its reasons for failing to meet deadlines and all the rest of it, is simply because the appellant was unable to give evidence, unable to present its evidence to the Commission. Now, it would be an entirely different context, in my submission, if the appellant had failed to attend the Commission on this occasion, but that is not what happened. The appellant turned up hoping and expecting to obtain a hearing and that was, in fact, denied to the appellant.

PN228

It hadn't prepared and filed its material in accordance with the time lines, but when it fronted up to the Commission it had assumed that it would be entitled to be heard. Turned up in good faith and, in my submission, the Commission should have accommodated the appellant, should have allowed the appellant to be heard, making whatever necessary orders were required to prevent prejudice being done to the respondent.

PN229

Now, my learned friend made mention of what was put and what was not put to Mr Warda, what was not put in cross-examination, and he attempts to place reliance upon what was not put to Mr Warda and what was not put to Mr Constantinou. But the simple point is that it is absolutely, in my submission and with respect to my friend, absurd to put a fine analysis upon what was put in cross-examination and what was not put in a case such as this where the evidence before the Commission was so fundamentally one-sided, so clearly incomplete, that one can only submit that it was flawed at that point. You can't put a fine analysis on what was before the Commission in what was effectively a default judgment is the way that the matter proceeded.

PN230

By the time we got to the point of cross-examination of witnesses, the appellant was at such a disadvantage at that point, it had been restrained from presenting its case, and I don't believe that any real cause can be advanced by a fine analysis of what was put and what was not put.

PN231

THE SENIOR DEPUTY PRESIDENT: It is an interesting comparison, isn't it, a default judgment?

PN232

MR MILLAR: Well, it is something that stands out as being almost analogous to this issue, but of course, a default judgment is something that occurs in courts of pleadings where they are tied up in the legal forms and technicalities, but this Commission is not. But more particularly, if someone does not appear, if someone thumbs their nose at the process of the Commission or the court in a default judgment case, then they run the risk of having judgment entered against them, but that is not what happened here. The appellant did front up, it did seek to be heard, it did seek to present evidence, it begged the indulgence of the Commission to allow it to do so and it was the Commission that said no.

PN233

THE SENIOR DEPUTY PRESIDENT: But in the courts, you don't even get that far, do you? If you don't enter a response, then you will have a default judgment entered against you. You don't even get to the hearing stage.

PN234

MR MILLAR: Well, courts of pleadings are governed by their own rules and if you fail to file a defence, for instance, when you are required to file one, there is a risk of a default judgment being entered against you, a serious risk, that may well be the case. But there are a whole serious of distinctions. Firstly, default judgments obtained in those circumstances are notoriously easy to set aside because there hasn't been an adjudication on the facts. Because the issues in dispute between the parties have never properly been determined by the court, it is not a difficult burden to get over to show that that decision should be set aside.

PN235

In this Commission there is no mechanism to allow that. In the courts there is a mechanism to allow the undoing of default judgments that have been entered against parties who haven't had an opportunity to put their case. In this Commission there was no ability for the appellant to enable - or to allow the matters in dispute to be properly contested before the Commission other than the lodging of an appeal, other than what we are doing here. This is the only way in which the appellant is able to seek the hearing on the facts, the hearing on the evidence, the determination of the dispute in this matter that it was deprived of in first instance.

PN236

Now, it may be - you know, it is certainly open to the Commission to conclude that the appellant did not come with clean hands at first instance. Clearly, they had missed deadlines, but that is no reason then to take the irretrievable step of freezing the appellant out from producing evidence before the Commission which inevitably led, in my submission, to findings against the appellant, inevitably led to the respondent succeeding at first instance. Those actions were irretrievable because unlike in the courts, there is no ability to apply to have that set aside. There is no ability for the appellant to try and correct what happened, to try and fix up the steps that were taken at first instance other than the lodging of an appeal. This is the only step that the appellant can take in order to correct what had happened.

PN237

But more relevantly, in courts with default judgments, of course, the fact that courts have pleadings and the pleadings have a status beyond the application and witness statements and submissions that are required to be filed in this Commission, is a very relevant point of departure between default judgments and the decision that was made here. You simply cannot elevate a requirement to provide documents which are to inform the other side and inform the Commission of what the nature of the case is.

PN238

You cannot equate those steps in the Commission with the filing of pleadings in court which actually define what the issues are. They are the case, the pleadings in court. The statement of claim and writ and the defence are what the case is all about. Here the outline of submissions and the statements are to assist the information flow of the parties, to assist the proper conduct of the case, but the proper conduct of the case is what happens before the Commissioner. The proper conduct of the case is the oral hearing. It is not a hearing which is done on the papers or the determination of issues on the papers. The - - -

PN239

THE SENIOR DEPUTY PRESIDENT: The Commission is not required to conduct oral hearing.

PN240

MR MILLAR: It is not required to indeed; indeed, Commissioner. But in this case, and in fact virtually invariably in termination of employment cases, there is an oral hearing which is conducted. That is the focus. That is the time at which the opportunity to present one's case is to be judged. The earlier steps are to allow full information of the parties, if you like, to allow the matter to be properly dealt with at hearing, but they don't in any way substitute for the hearing and they don't in any way fetter that right to be heard at the hearing.

PN241

The proper remedy in this case was to send the parties away to get the paperwork in order, to make sure that everyone knew what the case was all about, to remedy the problems that the delays of the appellant had caused, and if that meant that the appellant was exposed to an order for costs on the application of the respondent, then so be it. That was the proper way to do it. If the appellant had not fronted up when the case was called on, it would be entirely different as well. If the appellant had thumbed its nose at the Commission's processes at that point, then yes, it would have been provided with its opportunity to be heard, it would have been given an opportunity to present its case had it been there, but it had decided or it had recklessly failed to attend for the hearing. That is not what happened here.

PN242

They fronted up for the hearing and found that they faced a wall from the Commission, an impediment placed there by the Commission in preventing it presenting the case that it wished to present. The appellant had the witness statements at that point, as is clear from the transcript before the Commissioner. It had sought at that point to present its case, sought at that point to present the witness statements and call the witnesses, but the Commission refused them the ability to do so.

PN243

Now, my friend also referred to the notice of appeal and in particular what I have summarised in my submissions today as the factual issues, the factual findings, which I didn't address in any detail in my submissions earlier. And there is a very good reason for that, and that is again it is futile to place great emphasis upon the factual findings of the Commissioner and whether they were reasonably open to her because the case was entirely incomplete. She only had one side of the story.

PN244

The fact is that the appellant today doesn't place great emphasis upon the findings of fact or those grounds of appeal that relate to findings of fact because those findings of fact were as a consequence of the failure to allow the applicant to properly - or the appellant to properly present its case.

PN245

There is simply no point in getting bogged down in today's proceedings on what facts were before the Commission and what findings were reasonably open to the Commission, because by the time the hearing got to that point the whole process was so fundamentally flawed and so clearly stacked against the appellant, that it was irretrievably bad. And for that reason, I submit, should be set aside. Now, my friend has produced some calculations which appear to support, or come up with a bottom line that is consistent with what the Commissioner has ordered.

[3.50pm]

PN246

Well, it was for the Commissioner to come up with those calculations, and not to require the parties to go away and do their own calculations. There is absolutely no reason to believe that the Commissioners - one cannot be confident that the Commissioner followed exactly the same rationale in coming to that bottom line. There is no - there is a duty on the Commission to provide the reasons for the order which was reached, and that duty cannot be discharged by having the respondent do the legwork for the Commission, in my submission.

PN247

With respect to the Commissioner, there was a failure to provide those calculations. I have tried to perform the same calculations, and come up with all sorts of different figures. It may be that this is the rationale that the Commissioner followed, but that is not disclosed by the decision; is not disclosed by the transcript. It has been a matter for the respondent to go away and join the dots and work out exactly how this figure is calculated. The Commissioner's decision stands on its own. It can't be supported by calculations that have been independently performed, and handed up by the respondent.

PN248

It was for the Commissioner to come up with those calculations, and in my submission, she has failed to do so. The reader of the decision, whose - who doesn't have the advantage of the information that has been provided to your Honour today, would be none the wiser as to how the Commissioner has come to her decision. And, in my submission, it remains defective, notwithstanding that my friend has come up with a means of calculation which is consistent - appears to be consistent with the Commissioner's reasoning.

PN249

THE SENIOR DEPUTY PRESIDENT: I am tempted to comment, Mr Millar, that if it was a requirement that the decision set out the mathematics of how one arrived at the final figure, almost no lawyer would be able to be appointed to the Bench.

PN250

MR MILLAR: That would be a sad thing indeed, your Honour. We wouldn't wish to promote that conclusion. But the means of calculation is not explained in there. There is no reference in the decision of 23 weeks, which seems to be the difference between the earlier calculations and this one. The decision stands or falls on its own, and is defective on that ground, as well as the grounds I have mentioned earlier. The issue of balance of convenience, which my friend has mentioned, has been subject to a great deal of contribution from my client as to the issues involved in the unavailability of the respondent's former position. That is, as I said earlier, there has been a restructure, which has meant that that position is no longer able to be filled. And the appellant has, since the termination, acted - to fill that vacancy, restructured. It would cause not only difficulty and inconvenience, but endanger the employment of others, if the respondent were required to be reinstated.

PN251

And that may be the result down the track. It may be that if the appeal fails, that has to happen, and the appellant has to live with it at that stage. But it would be premature to require him to do so at this stage, because it may well be that, if the appeal is successful, that all of that adjustment that he would have to have gone through, all of the inconvenience caused to others, will have been unnecessary. Now, again, these factual issues, and I should also add many - a variety of factual issues that arise in relation to whether the correspondence from the Commission had been received, and the earlier proceedings in relation to Commissioner Cribb, and the requirement for their Managing Director to work in the factory, and the little time that he has to attend to paperwork.

PN252

All of those factual issues are matters that the appellant's officers have never had the opportunity to address in the Commission. If the Commission wants explanations as to what happened in earlier times, what happened when the - there was a failure to present the documents to the Commission in a timely manner, if those issues are to be thrashed out then the appellant's officers should be able to give evidence in the Commission. They were denied that at first instance, and it is the appellant's submission that the matter, in due course if it is returned to a Commissioner sitting alone for determination, those issues perhaps could be explored then.

PN253

But the point that pervades all of this is that the appellant has never had the opportunity to take the witness to the box; it has never had the opportunity to put its material before the Commission; has never had the opportunity to be properly heard as to what its case is. It is now attempting to pursue the only course it has available to it, to try and remedy what has been done before. And the appellant should, in my submission, be allowed to do so without the requirement to implement the orders that were made at first instance, in circumstances which were so contrary to the principles of natural justice that they should not be implemented at this stage.

PN254

The appellant, if you like, has had its shot across the bows, in terms of failure to comply with the procedures of the Commission. It is fully aware because of the difficulty that it has been put to in terms of having to go through an appeal, of the consequences of not abiding by what the Commission has requested. It is now seeking to try and correct the record for what has happened at first instance in this matter. And, in my submission, a stay of that decision should be put in place to allow the parties to maintain the status quo, pending the resolution of the substantive matter between them. If the Commission pleases.

PN255

THE SENIOR DEPUTY PRESIDENT: I will adjourn briefly.

SHORT ADJOURNMENT [4.00pm]

RESUMED [4.10pm]

PN256

THE SENIOR DEPUTY PRESIDENT: I am in a position to give a decision in this matter. On the basis of the material put in this matter I am not satisfied the appellant has established an arguable case with respect to the substantive merits or grounds of appeal; or with respect to leave to appeal being granted. As to the balance of convenience, I am satisfied the matters raised by the appellant for the granting of the stay on the balance of convenience are outweighed by those raised by the respondent, with respect to balance of convenience.

PN257

This is particularly so given the respondent's agreement to have the moneys payable and contributable under paragraphs 2 and 3 of the Commissioner's order paid into an interest bearing trust account pending the hearing and determination of the appeal. Accordingly, I am satisfied the balance of convenience is against the granting of a stay order. Given my decision in this matter, the application for a stay order is therefore refused. I expect the parties to organise the relevant interest bearing trust account. In the event that there is any difficulty in this matter, leave to apply is granted.

ADJOURNED INDEFINITELY [4.11pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 OUTLINE OF SUBMISSIONS PN5
EXHIBIT #F1 OUTLINE OF SUBMISSIONS ON STAY PRINCIPLES PN211
EXHIBIT #F2 CALCULATIONS ABOUT COMPENSATION PN211