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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 1, 17-21 University Ave., CANBERRA ACT 2601
(GPO Box 476 Canberra 2601) DX5631 Canberra
Tel: (02)6249 7322 Fax: (02)6257 6099
TRANSCRIPT OF PROCEEDINGS
O/N WT04876
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT LACY
C2001/6062
APPEAL UNDER SECTION 45 OF THE ACT
BY SMITH, ARTHUR AND OTHERS AGAINST
THE DECISION OF COMMISSIONER HINGLEY
ISSUED ON 7 NOVEMBER 2001 IN U2001/1310
RE APPLICATION FOR RELIEF OF
TERMINATION OF EMPLOYMENT
ALBURY
10.21 AM, MONDAY, 3 JUNE 2002
PN1
MR L. ARMSTRONG: I seek leave to appear on behalf of the applicant appellants.
PN2
MR G. McKEOWN: I seek leave to appear on behalf of the respondent.
PN3
THE SENIOR DEPUTY PRESIDENT: Now I understand there has been some problem with documents or locating documents.
PN4
MR ARMSTRONG: My instructor's Melbourne agents photocopied the wrong collection of someone's documents on Friday afternoon but I am indebted to my friend, I have had an opportunity to look at the documents briefly this morning and I think that that is sufficient for my purposes.
PN5
THE SENIOR DEPUTY PRESIDENT: Fair enough. If you need more time, you can apply at the appropriate time.
PN6
MR ARMSTRONG: Thank you Senior Deputy President. I'm grateful.
PN7
THE SENIOR DEPUTY PRESIDENT: Thank you Mr Armstrong.
PN8
MR ARMSTRONG: Sir, given the way the matter has transpired, I would not propose to make an opening statement this morning - - -
PN9
THE SENIOR DEPUTY PRESIDENT: No.
PN10
MR ARMSTRONG: Everybody is very familiar with the facts and history of the matter. Could I simply raise one housekeeping or perhaps two housekeeping matters and that is that the applicants have obtained medical opinions from two of the treating documents, one in respect of Mr Rapsey and one in respect of Mr Kimball. We have made arrangements for Dr Moeller, who gave Mr Rapsey's statement - gave the opinion in relation to Mr Rapsey, to be present at the Commission today but we're advised that she would only be able to attend during effectively lunch hours and so we would seek the Commission's indulgence to perhaps sit at 1.30 and structure a lunch break with that consideration in mind.
PN11
In relation to Dr Hayden who gave the opinion in relation to Mr Kimball, Dr Hayden, we're advised, is on long service leave at the moment and will be seeking to tender the opinion from Dr Hayden but we are not able to produce him to be cross-examined, despite our efforts in arranging it.
PN12
THE SENIOR DEPUTY PRESIDENT: Sorry, whose doctor is he?
PN13
MR ARMSTRONG: Sorry?
PN14
THE SENIOR DEPUTY PRESIDENT: Who's doctor is he?
PN15
MR ARMSTRONG: Doctor for Mr Kimball.
PN16
THE SENIOR DEPUTY PRESIDENT: Yes.
PN17
MR ARMSTRONG: If it pleases.
PN18
THE SENIOR DEPUTY PRESIDENT: And do you want to cross-examine any of the respondent's witnesses.
PN19
MR ARMSTRONG: Yes, Commissioner, we do. There may be some debate as to which of those witnesses become necessary to call and it might perhaps, if it was convenient to my friend and to the Commission, we might perhaps deal with that as a house-keeping matter to begin with. We would object to the evidence of Mr Gasperov and Mr Parsons in its entirety. In our submission, it's irrelevant and if the Commission was to accept that view, then neither of those witnesses would be required to be called at all. But I am in the Commission's hands as to whether we deal with that at the outset or at the close of the applicant's evidence.
PN20
THE SENIOR DEPUTY PRESIDENT: Yes. Have you had an opportunity to see Mr Gilly's statement?
PN21
MR ARMSTRONG: Sorry, Commissioner?
PN22
THE SENIOR DEPUTY PRESIDENT: See Mr Gilly's statement?
PN23
MR ARMSTRONG: Mr McGilly - yes I have.
PN24
THE SENIOR DEPUTY PRESIDENT: Mr McGilly, sorry, yes. Sorry Mr McGilly.
PN25
MR ARMSTRONG: The Commission made an order in relation to Mr McGilly's statement.
PN26
THE SENIOR DEPUTY PRESIDENT: Yes.
PN27
MR ARMSTRONG: It has been viewed by myself and my instructor. I would anticipate that the objection on the grounds of confidentiality would extend through the hearing, in which case the applicants presumably would be required to leave the hearing room while Mr McGilly was giving evidence.
PN28
THE SENIOR DEPUTY PRESIDENT: What is your position on that?
PN29
MR ARMSTRONG: We would say that is overkill, with respect sir. Mr McGilly does not give evidence that could really be regarded as terribly commercially sensitive. I do not anticipate that I will be cross-examining Mr McGilly as to the financial details that are referred to in his witness statement. I will be cross-examining him as to other matters which do not, in my respectful submission, attract the commercial in confidence considerations that justified the initial objection to wide production and so, on that basis, perhaps Commissioner - Senior Deputy President what I would suggest respectfully is that the applicants be permitted to remain in the hearing room during Mr McGilly's evidence.
PN30
If, at any point, I stray into financial details or if my friend forms the view that I am getting into the commercial in confidence issues, then perhaps at that point the applicants might be required to leave the room, presumably with any other spectators who might be present but unless and until that happens the hearing continue to be public and open to the public. If it pleases.
PN31
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. I will just clarify with Mr McKeown, his attitude or position in relation to, first of all, the doctors, Mr McKeown. Do you have any difficulty with the sitting arrangements being modified to allow one of the medical people to come at 1.30?
PN32
MR McKEOWN: No, your Honour.
PN33
THE SENIOR DEPUTY PRESIDENT: And what about Dr Hayden not being available for cross-examination?
PN34
MR McKEOWN: I do object to his report going into evidence, your Honour.
PN35
THE SENIOR DEPUTY PRESIDENT: Now, in relation to Mr McGilly, it seems to me that what Mr Armstrong is suggesting is perfectly sensible in the sense that if none of the commercial material is going to be broached by him in cross-examination, then there ought not be an order for witnesses - other people out of Court.
PN36
MR McKEOWN: Your Honour, I would say this. I've - Mr McGilly arrived back in the country yesterday. I've had brief - well I have had a conference with him late last night. There will be additional material which is extremely confidential in terms of the possible future operations associated with this company in this particular area. In my submission, particularly when you have a regional centre such as this where - if I can put it, rumours can spread rapidly and unfoundedly and cause unnecessary anguish when it's not required, I would be maintaining that it would be preferable not to have a situation where, if you like, it's awaiting to see what falls from Mr McGilly's mouth in terms of the evidence and then have a running issue as to whether or not the appellants should be in the body of the Courtroom or any other members of the public.
PN37
It would be still my - I maintain, your Honour, that it would be in the best interests that in regard to Mr McGilly's evidence, which will be relatively short in nature, we are not talking about a lengthy period, that the confidentiality order be maintained and that it go to the extent of marking the transcript as well in terms of access only being to the legal representatives of the parties. I can say, your Honour, that from my instructions that there is an indication there that there has been further loss of major business for this particular company and in my submission, your Honour, it is indeed appropriate that, given the probably the short nature of the evidence, that witnesses be excluded and that a confidentiality order be placed.
PN38
THE SENIOR DEPUTY PRESIDENT: Yes. Perhaps I ought to mark Mr McGilly's witness statement that has been filed and, as I understand it, viewed by Mr Armstrong and his instructing solicitor - is that right?
PN39
MR McKEOWN: I understand that to be the position, your honour.
PN40
THE SENIOR DEPUTY PRESIDENT: Yes. Well perhaps I will make that statement - Patrick McGilly supplementary witness statement, is that the one?
PN41
MR McKEOWN: Yes your Honour.
PN42
THE SENIOR DEPUTY PRESIDENT: Dated 15 April 2002?
PN43
MR McKEOWN: Yes your Honour.
PN44
THE SENIOR DEPUTY PRESIDENT: Yes. Well I will direct that that document remain confidential and not be published or kept on the file other than in a sealed envelope and perhaps I will make it as MP1.
PN45
MR McKEOWN: Thank you, your Honour.
EXHIBIT #MP1 SUPPLEMENTARY STATEMENT OF PATRICK McGILLY DATED 15/04/2002
PN46
THE SENIOR DEPUTY PRESIDENT: Now in relation to the other evidence that Mr McGilly is going to - or you have foreshadowed Mr McGilly will be - or will be led from Mr McGilly, have you spoken to Mr Armstrong about that?
PN47
MR McKEOWN: No, your Honour.
PN48
THE SENIOR DEPUTY PRESIDENT: No. Well it's unlikely we will get to Mr McGilly before the lunch adjournment. Perhaps you could speak with Mr Armstrong about that evidence then and we can deal with this subject if necessary, on voir dire and after lunch.
PN49
MR McKEOWN: Certainly your Honour.
PN50
THE SENIOR DEPUTY PRESIDENT: All right. Did you have any other matters you wanted to?
PN51
MR McKEOWN: Only my learned friend has just indicated to me about the issue of Mr Parsons and Mr Gasperov, in terms of their statements, your Honour. I would submit that their statements are still relevant, they are relevant under 170CH(7)(c). They are relevant under the principles annunciated in Sprigg v Paul's Licensed Festival Supermarket and as further Full Bench authorities in terms of Sulocki, Ellawala, that they are relevant to the issue of - if I could put it in terms of what was said in Ellawala's case, your Honour, the anticipated employment period.
PN52
It is submitted that they go to the issue that - and I noted from my learned friend's written submissions, he attributes the - my written submissions as being identical except for name changes in terms of the submissions. However, a closer inspection of those submissions will reveal that there are varying estimates given in terms of anticipated employment period.
PN53
It is submitted, your Honour, that indeed the activities of Mr Perrett, both prior and post, are relevant to that issue, that very difficult issue that your Honour is called upon to decide in terms of anticipating employment period and that is why it is submitted the relevance of that issue, your Honour, and also in terms of under subparagraph (7)(c)(h)(e) as any other matter that the Commission considers relevant. I would submit that it may come under the umbrella, your Honour, also in terms of the fair go all round. But primarily, your Honour, it's - - -
PN54
THE SENIOR DEPUTY PRESIDENT: Sorry, which two statements are we talking about - Mr Joseph Gasperov dated - sorry, 16 April, is it?
PN55
MR McKEOWN: Yes your Honour. I will just - your Honour there - the statement from Mr Elton Parsons, it is dated, looks like 15 April, your Honour.
PN56
THE SENIOR DEPUTY PRESIDENT: Yes.
PN57
MR McKEOWN: There are two attachments to it, your Honour. EP1 and EP2.
PN58
THE SENIOR DEPUTY PRESIDENT: Yes.
PN59
MR McKEOWN: The statement of Mr Gasperov is also dated - oh, it's dated 16 April and that has attachments JG3, 4 and 5. Those statements do concentrate, your Honour, in terms of an incident, if I can put it in those terms, involving Mr Perrett both whilst he was employed and also of an incident in relation to Mr Parsons which occurred post employment. Your Honour, it is submitted the relevance as to why, even in light of the indication or the submissions made by the appellant's counsel and written submissions and endorsed in terms by the respondent's written submissions that reinstatement orders aren't appropriate in terms of Mr Perrett. It's maintained the relevance still is there in terms of the issue of the anticipated employment period.
PN60
THE SENIOR DEPUTY PRESIDENT: Yes. All right. Did you want to say anything in reply?
PN61
MR ARMSTRONG: Commissioner - I beg your pardon, Senior Deputy President, we've got this slightly around about. I had foreshadowed that our objection was on the grounds of relevance. My friend has made detailed submissions but I hadn't made the four submissions that I intended to make in relation to these statements so, rather than - it's not strictly by way of reply I suppose. Sir, could I ask you to look at Mr Parson's witness statement of 15 April.
PN62
THE SENIOR DEPUTY PRESIDENT: Yes.
PN63
MR ARMSTRONG: Now, as my friend has made quite clear, Mr Perrett does not now seek reinstatement. Mr Parson's witness statement deals entirely, as is quite clear from the final paragraph, addresses Mr Parson's concerns as to what would happen if Mr Perrett is reinstated. The incident, which is referred to, happened many months after the employment terminated. The incident happened after the decision of the learned Commissioner Hingley in relation to the matter at first instance. In no respect could it be said that this incident has anything to say about the likely period of employment but for the events of February 2001.
PN64
Now what the Commission, with respect, is required to determine in ascertaining the anticipated length of employment, is what would have happened but for the termination of the initiative of the company. Now it is quite clear that, prior to Mr Perrett's termination on 8 February 2001, this incident had not happened. There was no suggestion that this incident, or anything like it, had happened - and I make that submission quite cognisant of Mr Gasperov's statement which I will come to in a second.
PN65
But in light of the fact that this happened some eight months after the events of February 2001 and in circumstances where all of the parties were quite conscious of the allegation which has since been proved, that this company sacked these men because they were on Work Cover or had injuries, this statement is wholly irrelevant for showing or indicating the length of employment that as at January or February 2001 would reasonably have been anticipated, so we object to Mr Parson's statement on that basis. Mr Gasperov addresses a similar or the same incident but with an additional slant.
PN66
Mr Gasperov tries to re-open the issue which was agitated before Commissioner Hingley regarding the circumstances of the altercation between him and Mr Perrett in late 2000. Now this was the altercation which led to Mr Perrett's claim for Work Cover leave on account of stress. Work Cover leave was granted. Liability to make weekly payments was admitted and the evidence before the Commission, sir, is that at a meeting between Mr Perrett, Mr McGilly and Mr Leonard from the union on 8 - sorry, on 2 or 3 February 2001, Mr McGilly informed Mr Perrett that the company had investigated the circumstances of the incident to which Mr Gasperov refers and has concluded that there is not a scrap of evidence to support the original warning that had been given to Mr Perrett.
PN67
Now Mr Gasperov is trying to re-open an issue which was put firmly to bed before Commissioner Hingley. The company did not, despite having ample opportunity, did not contradict Mr Perrett's account of the meeting of 2 or 3 February - I think it was the 3rd, and it ought not be allowed to re-open this whole question now. The evidence has been given, it has been put to bed. Mr Gasperov can think whatever he likes about the incident that he refers to but his own employer investigated it and formed the view that whatever he thinks there was not a scrap of evidence to support a warning against Mr Perrett. And, as I say, that evidence was not contradicted.
PN68
Now, for that reason, and one further point. Mr McGilly made quite clear to Mr Perrett in the meeting on 2 and 3 February - 2 or 3 February, that Mr Perrett was a good worker. The altercation between him and Mr Gasperov was never suggested by the company to provide a reason for termination. Now it cannot be raised at this late stage to achieve the same thing by a side wind and that is to say, well, the Commission ought to find that, in light of Mr Gasperov's attempt to re-open the question, Mr Perrett had a somewhat abbreviated anticipated future employment, abbreviated compared to what otherwise would have been the case.
PN69
The company's position was that was not the case and it cannot try and avoid that by a side wind now by trying to re-open this point. Now, for that reason as well, Senior Deputy President, we say that Mr Gasperov's supplementary witness statement deals with matters which are - were irrelevant in February 2001. They were dealt with in detail before Commissioner Hingley. Evidence was given and the company had the opportunity to - - -
PN70
THE SENIOR DEPUTY PRESIDENT: You say that Commissioner Hingley didn't come through a position where he had to consider a remedy, did he?
PN71
MR ARMSTRONG: No, he didn't Senior Deputy President. But the remedy point comes to - we get back to this question of anticipated future employment. The company itself had eschewed any reliance on the circumstances of the altercation between Mr Perrett and Mr Gasperov. It said we can't find a "scrap of evidence" to support the warning that had been given. Mr McGilly said, "As far as I am concerned, he is a good worker, bygones are bygones, forgive and forget, all over, let's get on with the job". This is not something the company had ever suggested warranted either the termination or a warning or anything else that would suggest that Mr Perrett's anticipated future employment should be cut short. That was the company's own position in February 2001.
PN72
THE SENIOR DEPUTY PRESIDENT: Was it the position of Mr McGilly that the incident did not occur at all or simply that it didn't warrant a warning?
PN73
MR ARMSTRONG: Excuse me one second, Senior Deputy President. The evidence from Mr Perrett, which was not contradicted by Mr McGilly - and this is at page 75 of the appeal book. Mr Perrett refers to the general meeting on 2 February and then says:
PN74
The meeting with Mr McGilly and Mr Leonard was called after I had been at meetings the day before regarding - - -
PN75
MR McKEOWN: Excuse me, I'm sorry to interrupt my learned friend, I didn't quite get the - - -
PN76
MR ARMSTRONG: It is appeal book 75 in volume 1, Senior Deputy President.
PN77
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN78
MR ARMSTRONG:
PN79
... the meeting was called after I had been at the meetings the day before regarding redundancies ...(reads)... He said he knew that and he was going to fix it.
PN80
That was Mr Perrett's evidence and that is consistent with the evidence in his witness statement and Mr McGilly, at page 114, is asked about - asked by counsel or Ms Cleary appearing for the company, he is asked about the circumstances of that meeting and is asked what was the issue in that meeting, to which his reply is:
PN81
That issue was the -
PN82
The transcript says "agreements" but I think it ought to be - the transcript -
PN83
... was a grievance that had been put in by Mr Perrett against the company ...(reads)... but his management has advised me that he was a good worker.
PN84
THE SENIOR DEPUTY PRESIDENT: His what, sorry? Advised that he was a good worker, who, his management was?
PN85
MR ARMSTRONG:
PN86
His management has advised me that he was a good worker.
PN87
And there is nothing anywhere in Mr McGilly's evidence that contradicted the proposition by Mr - or the evidence given by Mr Perrett and when he was examined on the circumstances of that meeting, his evidence before this Commission was that Mr Perrett was a good worker and bygones should be bygones. This is not a matter that was ever suggested by the company as warranting any further action against Mr Perrett or which would have warranted the view that Mr Perrett's likely future employment had been abbreviated. Now for that reason as well, Senior Deputy President, we say that Mr Gasperov is now seeking to re-agitate something that was also dealt with in his witness statement, as I recall, at first instance.
PN88
He is trying to re-open something that was dealt with fully at the hearing before Commissioner Hingley. It is now being sought to be raised in a manner that is contrary to the company's own conduct and own evidence before Commissioner Hingley and it ought not be allowed to be re-opened. If it pleases.
PN89
THE SENIOR DEPUTY PRESIDENT: Yes. Mr McKeown, do you want to say any more?
PN90
MR McKEOWN: Yes your Honour. It is not contrary at all. All that my learned friend has referred to is really Mr Perrett's own evidence in terms of what he attributes to the situation. In fact, as per the documentation attached to Mr Gasperov's statement, there is indeed a letter draft as a final warning letter, your Honour, which is JG5, in terms of the issues raised over this matter. It is not, as my learned friend, wishes to gloss over as if, well, there was nothing in it. And I would need to clarify with instructions, your Honour, and it could be, in fact, something I would clarify with Mr McGilly in terms of that issue, that indeed the very fact that the warning was withdrawn was as a result of industrial matters that were raised against the company and nothing to do with - and as with any industrial environment, sometimes there are compromises reached, warnings withdrawn.
PN91
It doesn't fall away at all from the very issues that were raised in regard to Mr Perrett and the issue that is of relevance to this Commission which was of relevance in the Ellawala v The Australian Postal Corporation Full Bench Decision was in that particular case, Mrs Ellawala was a postal officer who had been the subject of two previous internal inquiries in regard to her conduct involving allegations of misappropriation of funds etcetera. Your Honour, it goes to the issue of, in my submission, in Mr Perrett's case of an attitudinal problem he has with management. And it goes to the issue that that has to be taken into consideration as to when one looks at incidents of this nature as to his period of anticipated employment and clearly there were very serious issues in terms of the language used - the type of language used and his attitude to management. And in my submission, your Honour, it is very relevant to that issue of anticipated employment and the evidence should be heard on that.
PN92
THE SENIOR DEPUTY PRESIDENT: Thanks Mr McKeown. Mr Armstrong, was it put to Mr McGilly in cross-examination at all that he had said that?
PN93
MR ARMSTRONG: I don't - just bear with me a moment, sir.
PN94
THE SENIOR DEPUTY PRESIDENT: What I might do is, at this stage, I will reserve my decision on the issue that you raised and perhaps you might just check that out for us and confirm whether that was put to Mr McGilly in cross-examination that he had completely exonerated Mr Perrett in relation to the matter.
PN95
MR ARMSTRONG: Thank you sir. My recollection - and I will check this, Senior Deputy President, is that it wasn't put to Mr McGilly in cross-examination because nothing had been put into contradiction and on that basis it was not necessary to take him to it because he had been taken to the circumstances of the meeting by Ms Cleary on behalf of the company and had given an account of the meeting which, to the extent that he dealt with it, was entirely consistent with Mr Perrett's evidence.
PN96
THE SENIOR DEPUTY PRESIDENT: But did Mr Perrett in giving that evidence actually set it out in his original witness statement?
PN97
MR ARMSTRONG: Yes, Senior Deputy President, he did. I will give you the page reference for that as well. It was paragraph 14 of Mr Perrett's original witness statement which is reproduced in appeal book 252, Senior Deputy President, and I quote:
PN98
McGilly told me that the allegations made by Gasperov against me ...(reads)... but he was planning to change all that.
PN99
And you will recall, Senior Deputy President, that that was the effect of Mr Perrett's evidence given orally which I took the Commission to before.
PN100
THE SENIOR DEPUTY PRESIDENT: It's suggestive isn't it, even on Mr Perrett's own evidence, of the fact that he was swearing. I mean that's the inference in the exchange or the words that he uses.
PN101
MR ARMSTRONG: Well, Senior Deputy President, yes and we don't resile from that. What the evidence also shows is that Mr McGilly formed the view that whatever conduct by Mr Perrett had taken place, was not sufficient as to warrant a warning and I don't recall that there is evidence before the Commission as to what Mr Gasperov had to say for himself.
PN102
THE SENIOR DEPUTY PRESIDENT: Mr Gasperov says, well, the reason the warning was removed was because of representations by the union or pressure from the union.
PN103
MR ARMSTRONG: Yes that would be interesting if we had any evidence of that, Senior Deputy President. That was not given before Commissioner Hingley.
PN104
THE SENIOR DEPUTY PRESIDENT: Look, what I will do is I will reserve on that point and, at some stage before Mr Perrett comes into the witness box, I will rule on it.
PN105
MR ARMSTRONG: If it pleases.
PN106
THE SENIOR DEPUTY PRESIDENT: You're not calling Mr Perrett first are you?
PN107
MR ARMSTRONG: No. I think he will be fifth, Senior Deputy President.
PN108
THE SENIOR DEPUTY PRESIDENT: Yes. Very well.
PN109
MR ARMSTRONG: If it pleases then, sir, I will call Mr Bakic as the first witness for the applicants.
PN110
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Armstrong. Oh, just before Mr Bakic is sworn in, what do you suggest then for the luncheon - what do you suggest for the luncheon adjournment?
PN111
MR ARMSTRONG: Perhaps, sir, we might - I might suggest that we adjourn for lunch at 12.45 and then resume at 1.30 and sit through the afternoon. The reason, if it was convenient, Senior Deputy President, that I suggest an abbreviated lunch break is that I do have some hopes that we will be able to finish this matter today and if the parties can be avoided the cost of having to have us all attend again tomorrow, then I think that would be a desirable thing. So that would be my suggestion, with respect sir, from 12.45 to 1.30 and then sit through the afternoon.
PN112
THE SENIOR DEPUTY PRESIDENT: Yes. What do you say Mr McKeown. Do you have the same optimism about finishing today or - - -
PN113
MR McKEOWN: I'm not as sure given what has transpired to date. I don't anticipate I have to say being involved in lengthy cross-examination, if I can put it that way, your Honour.
PN114
THE SENIOR DEPUTY PRESIDENT: Right.
PN115
MR McKEOWN: In terms of the specific issues that we're looking at, I will be hopeful and indeed in light of the written submissions, again I would be only highlighting in terms of the closing really what is already placed in those submissions. I can't - - -
PN116
THE SENIOR DEPUTY PRESIDENT: Well, I have a couple of matters that I want to raise on the submissions. I have read the written submissions of both parties, I mean, but I mean there wouldn't be any reason why we couldn't reconvene in Melbourne although that's going to be an additional expense for the day anyway. But, all right - what do you say then about the proposal for lunch, 12.45 to 1.30?
PN117
MR McKEOWN: I don't have any difficulty with that, your Honour.
PN118
THE SENIOR DEPUTY PRESIDENT: Very well. We will sit on until 12.45 and then adjourn for lunch and resume at 1.30 and then we will see how we are going this afternoon. If necessary - well, I don't know about being able to occupy this Courtroom after 4.30 in the afternoon but we can make some inquiries any way.
PN119
MR McKEOWN: If it pleases.
PN120
PN121
MR ARMSTRONG: Mr Bakic, you have made a supplementary witness statement in this proceeding, is that correct?---It is.
PN122
Have you had an opportunity - do you have that witness statement with you?---I have.
PN123
Can I take you to paragraph 3 - also, is that witness statement dated 17 April 2002?---It is.
PN124
And can I take you to paragraph 3, you refer to an exhibit CB7 being a copy of the redundancy letter from Moore Paragon. Is the document, being CB7, reproduced at the end of your witness statement? Mr Bakic, go back to the start, page 3 of the bundle in your hand, is that a front sheet saying exhibit CB7?---Yes.
PN125
And behind that is a letter dated 8 February 2001?---Yes.
PN126
Behind that are two pages of a grid of calculations?---Yes.
PN127
Is that the letter and enclosures referred to at paragraph 3 of your witness statement as CB7?---Yes.
PN128
Now in paragraph 7(a) of your witness statement you refer to exhibit CB8 which is a copy of a payment summary from Drake?---Yes.
PN129
Can I ask you to turn to the - I think it's the seventh page of the bundle in your hand which is a front sheet saying exhibit CB8, can you see that?---Yes.
PN130
And behind that is that the payment summary you refer to?---Yes.
**** COREY MARCUS BAKIC XN MR ARMSTRONG
PN131
The next page is a front sheet referring CB9 which is described in your witness statement as a true copy of a payroll print-out from Drake showing your earnings from 30 June 2001 until 12 November 2001. Is that the two pages produced behind the front sheet CB9?---Yes it is.
PN132
And exhibit CB10 is a true copy of your most recent pay slip from Tenix. Is that the page produced?---Yes.
PN133
Thank you. And then there is a front sheet missing but after the last page, which I asked you to look at, a true copy of your pay slips from your employment at Moore Paragon for the period leading up to your termination. There are 4 pages of photocopy pay slips?---Yes.
PN134
Are those the documents you refer to?---Yes.
PN135
Now Mr Bakic have you had an opportunity to read your witness statement recently?---Yes I have.
PN136
Are there any corrections you wish to make to it?---No.
PN137
No? Is that statement true and correct in every particular?---Yes it is.
PN138
Thank you. I tender that witness statement, Senior Deputy President.
PN139
THE SENIOR DEPUTY PRESIDENT: Yes Mr Armstrong. I have exhibit CB10 which is how many pages?
PN140
MR ARMSTRONG: CB10 itself is one page sir.
**** COREY MARCUS BAKIC XN MR ARMSTRONG
PN141
THE SENIOR DEPUTY PRESIDENT: Oh, I see.
PN142
MR ARMSTRONG: And then there's a front page or an exhibit face sheet missing.
PN143
THE SENIOR DEPUTY PRESIDENT: CB11.
PN144
MR ARMSTRONG: And the following - - -
PN145
THE SENIOR DEPUTY PRESIDENT: Three pages is it?
PN146
MR ARMSTRONG: Four pages, Senior Deputy President, are all the pay slips from Moore Paragon and they are CB11.
PN147
THE SENIOR DEPUTY PRESIDENT: Well I must be missing the - just bear with me a moment.
PN148
MR ARMSTRONG: I could hand up a set if it is of assistance, Senior Deputy President.
PN149
THE SENIOR DEPUTY PRESIDENT: I'm not sure which pay slips I have got here, whether I have got the Tenix ones or the - - -
PN150
MR ARMSTRONG: No, these are Moore Paragon pay slips, Senior Deputy President.
PN151
THE SENIOR DEPUTY PRESIDENT: Yes but I'm not sure whether the ones I've acquired are Moore Paragon or Tenix because it's got CB10 cover sheet attached to it.
**** COREY MARCUS BAKIC XN MR ARMSTRONG
PN152
MR ARMSTRONG: Yes.
PN153
THE SENIOR DEPUTY PRESIDENT: And then it has got a number of pay slips - perhaps I will ask my associate to show you the document I've got but, whichever way it goes, I appear to be missing one lot of pay slips. It might be the Tenix ones. There are four pages under that of pay slips.
PN154
MR ARMSTRONG: I think, Senior Deputy President, what has happened effectively is that there is no front sheet for CB11.
PN155
THE SENIOR DEPUTY PRESIDENT: Right.
PN156
MR ARMSTRONG: And it is the one page Tenix Defence Pty Ltd pay slip which is in front of the face sheet for CB10 which should actually be behind the face sheet for CB10.
PN157
THE SENIOR DEPUTY PRESIDENT: I see. Right.
PN158
MR ARMSTRONG: So there is the CB10 which is the one page Tenix pay slip, followed by four pages of Moore Paragon pay slips which are CB11. I apologise for that confusion sir.
PN159
THE SENIOR DEPUTY PRESIDENT: All right. Well I will mark the supplementary statement of Corey Bakic as AA1.
PN160
MR McKEOWN: I'm sorry your Honour?
PN161
THE SENIOR DEPUTY PRESIDENT: Exhibit AA1.
**** COREY MARCUS BAKIC XN MR ARMSTRONG
PN162
PN163
MR ARMSTRONG: No further questions Commissioner.
PN164
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Armstrong. Mr McKeown, any cross-examination?
PN165
PN166
MR McKEOWN: Mr Bakic. You commenced as a casual in '95, is that right?---That's correct.
PN167
And you became full-time in October '98?---That's correct.
PN168
And in terms of prior to joining Moore Paragon, when you worked as a casual was it - what was the basis of the, your engagement there? Was it just during summer or what was it?---It was pretty much full-time.
PN169
Was it?---Yes.
PN170
And when you say full-time, are you talking five days a week?---Most times, yes.
**** COREY MARCUS BAKIC XXN MR McKEOWN
PN171
And in terms of the situation - you were aware of the situation in terms of the - I'm talking about February 2001, of the changes that were occurring in terms of the company structure and the call for redundancies?---I was away at the time.
PN172
But you became aware, didn't you, through your friends?---When I came to work, yes, I did, yes.
PN173
And when did you first become aware of the skills audit that had been performed in relation to yourself? Can you recall that?---No I can't.
PN174
In terms of the - you were interviewed on 8 February, can you recall who interviewed you?---No I can't.
PN175
In terms of that, you were asked whether you would consider for voluntary retrenchment. Do you recall that?
PN176
MR ARMSTRONG: Objection. I'm sorry, Senior Deputy President. This is evidence that has been given at length before Commissioner Hingley and this is a hearing on the remedy. I don't see how this is relevant to the question of remedy. We have established that Mr Bakic's dismissal was unjust and unreasonable. These questions go to the circumstances of the dismissal and that's no longer an issue in this proceeding.
PN177
THE SENIOR DEPUTY PRESIDENT: Is this - well, where is this going, Mr McKeown?
PN178
MR McKEOWN: Your Honour, it goes to the issue in terms of the skills issue associated with this particular Mr Bakic, it goes to in terms of - because what is a constant theme in terms of coming from the appellant's side is that the appellants were all middle of the range, if you like, skilled employees. It goes to the issue in terms of anticipated employment period, your Honour, that with the extent that a view could be had in terms of the skill levels that there wouldn't be long term employment and that's where it's headed.
**** COREY MARCUS BAKIC XXN MR McKEOWN
PN179
THE SENIOR DEPUTY PRESIDENT: There's been no more retrenchments have there since this group were retrenched?
PN180
MR McKEOWN: No, not that I am aware of, your Honour, in terms of more retrenchments. But in terms of the - well, that is as high as I can take it.
PN181
THE SENIOR DEPUTY PRESIDENT: Well, I mean, I don't think we can re-open that issue. It was - if there was evidence to say that there have been more retrenchments and you say, well, down the pecking order Mr Bakic would have fallen within the next lot of people that were selected on the skills audit or something of that nature, then it might be relevant. But I don't see how going into it now is going to assist me in determining how much longer he might have been employed there.
PN182
MR McKEOWN: Well, the only thing I would say about that, your Honour, is the difficulty I have is that in light of the decision in Southcorp which I am aware, your Honour, was a member of that particular bench and need not be taken to the factual situation of it, I am aware that in regard to Mr McDonald, the anticipated period of employment was five years.
PN183
THE SENIOR DEPUTY PRESIDENT: That's right.
PN184
MR McKEOWN: And, your Honour, I would submit that in terms of the possibility or the - if we are looking at a time frame of that, then this is all very relevant because with this particular company and its current situation - and I won't refer to Mr McGilly's evidence but in terms of it that indeed a possibility that it will exist in terms of future retrenchments.
PN185
THE SENIOR DEPUTY PRESIDENT: So what you propose leading other evidence to demonstrate that there is a precarious situation in terms of the ongoing employment of other people?
**** COREY MARCUS BAKIC XXN MR McKEOWN
PN186
MR McKEOWN: Probably not as high as precarious and because I have limited instructions, your Honour, under no circumstances do I wish to - well I can't predict with any certainty in terms of - I can only put the questions to Mr McGilly and his response is there. But what I am saying, your Honour, is that what I want to be able to put to Mr Bakic is that there are things in his skills assessment, that issue could become relevant if this - if your Honour were to take a view that, well, the possibility that this particular individual were to continue working for five years and that there be no situation in that period where there might be further redundancies.
PN187
THE SENIOR DEPUTY PRESIDENT: Are you going to make submissions to me about the characterisation of the skills assessment in terms of the ongoing or likely ongoing employment, is that what you are going to put, ultimately?
PN188
MR McKEOWN: Yes, your Honour, that it comes into a situation - - -
PN189
THE SENIOR DEPUTY PRESIDENT: Well you can make those submissions to me but Mr Armstrong, I think as a matter of fairness, it might appropriate then if Mr McKeown is going to address me on how these matters might affect - or might have affected the ongoing nature of the employment, to put that matter to him - the witness. I mean, if you cut it off, you can't very well say, well, Mr McKeown is making this submission from the bar table now at some time and he never ever put it to the witness.
PN190
MR ARMSTRONG: Senior Deputy President, there are a couple of points about that. First of all, we have never sought to cut the company off.
PN191
THE SENIOR DEPUTY PRESIDENT: No, no, no. You objected to me.
**** COREY MARCUS BAKIC XXN MR McKEOWN
PN192
MR ARMSTRONG: And I'm not covering with anything but our first proposition is that this has been dealt with in great - this was the whole point of the hearing before Commissioner Hingley. Secondly, as a matter of fairness, if Mr McKeown seeks to rely on the skills audits, he ought to identify who did it, call them to verify them and submit them for cross-examination and that has never happened.
PN193
THE SENIOR DEPUTY PRESIDENT: Mr Bakic's skills audit isn't in, is that what you are saying? Isn't in evidence?
PN194
MR ARMSTRONG: It is not in as a verified document, Senior Deputy President. You will recall, sir, this was one of the issues in the appeal.
PN195
THE SENIOR DEPUTY PRESIDENT: Well that issue wasn't addressed in the appeal.
PN196
MR ARMSTRONG: No, it wasn't, it didn't become necessary for the Full Bench to consider it, but one of the problems is that the skills audits were produced as part of the company's discovery before Commissioner Hingley. The applicant - they were put to each of the applicants. Each of the applicants says, "I've never seen it before", and that was the evidence that it wasn't shown to them. There was an instruction given by the company that it was not to be shown to them. The authors of them were never called, were never identified.
PN197
We weren't able to cross-examine them. If we are now going to rely on these skills audits, we really are opening up the - effectively, the whole half of the case that dealt with the company's process again.
PN198
THE SENIOR DEPUTY PRESIDENT: Well, I mean, we're not going to go to the skills audit if the witnesses have never seen them but I understood the question was whether or not he had undergone some sort of assessment or a skills assessment.
**** COREY MARCUS BAKIC XXN MR McKEOWN
PN199
MR ARMSTRONG: Senior Deputy President, I think the question related to his interview rather than the audit.
PN200
THE SENIOR DEPUTY PRESIDENT: Yes.
PN201
MR ARMSTRONG: Now the evidence before the Commission to date - and we don't seek to resile from this, is that Mr Bakic was not the most experienced employee there but he was not the least experienced. And there was some other employees who were less experienced than had - a lesser range of skills than he did. Now, as you have pointed out, sir, the company has not undertaken any further involuntary retrenchments since 16 months ago. Mr McGilly, it appears, is going to give evidence about what may or may not happen into the future. He can do that if it's not something that Mr Bakic can comment on, Mr Bakic doesn't even know what Mr McGilly's evidence to date has been but really to now and try and re-visit with Mr Bakic the validity of the assessment that he gave that was given to him back in February 2001, re-opens the question of how the assessment came about, and this was agitated at length before Commissioner Hingley and it was some of the grounds of appeal.
PN202
THE SENIOR DEPUTY PRESIDENT: I'm not sure that is where Mr McKeown is heading but, if it is, well it is not.
PN203
MR ARMSTRONG: Mr McGilly - sorry, Mr McKeown, as I understand it is proceeding on the proposition that if, for instance, the Commission were to determine on a Southcorp type application of principle that Mr Bakic has another five years worth of employment in him with Moore Paragon but for what happened last year, then the evidence that he is in the middle range of employees, combined with any evidence Mr McGilly might give about what's going to happen in the future in terms of employment levels, could justify the Commission in setting some lesser level.
**** COREY MARCUS BAKIC XXN MR McKEOWN
PN204
Now that Mr Bakic was in the mid range of employees, we do not dispute that is the evidence. How he got there and whether the skills audit if Mr McKeown is going to make a submission, well, Mr Bakic was ranked, you know, in the bottom three in his department, we do object to that because the way that the skills score was derived is a matter that is a complete mystery to everybody except the company. It's a mystery to the Commission and it has always been a mystery to the applicants who are now before you.
PN205
THE SENIOR DEPUTY PRESIDENT: I accept that but I mean I don't know that Mr McKeown was going to approach the skills audit aspect. I thought he was talking about the interview process itself.
PN206
MR ARMSTRONG: He had gotten into scores, as I understood it, sir.
PN207
THE SENIOR DEPUTY PRESIDENT: I don't know how he could if this witness had never seen the scores.
PN208
MR McKEOWN: Could I just clarify something, your Honour. I would be going to the skills audit as well but I find it somewhat mysterious that - it was the same argument that was argued before Commissioner Hingley that somehow documents that were handed up were not tendered in a formal tender process and marked as exhibits that they cannot be relied upon or taken into consideration by the Commission. The skills audit for Mr Bakic was attached to his own statement. They were the ones who put it in. Well, my learned friend, according to appeal book 351, the witness statement by Mr Bakic - your Honour, if you go to page 377 of the appeal book, it refers to - - -
PN209
THE SENIOR DEPUTY PRESIDENT: Which page did you say, 3?
PN210
MR McKEOWN: His statement commences, your Honour, at 351. If one goes to 377, attached to his own statement - I'm sorry - - -
**** COREY MARCUS BAKIC XXN MR McKEOWN
PN211
MR ARMSTRONG: Sir, I can clarify this. Page 373 of the appeal book is the last exhibit to Mr Bakic's witness statement which is CB6. Page 377 bears the number A26. It was a document that was handed to Mr Bakic in the course of his evidence-in-chief to find out whether he had ever seen it. He said that he hadn't and it was noted, during the hearing, that the document was not verified and that if somebody was going to come forward and say, yes, I wrote it and I wrote it in February 2001 and I only took into account proper considerations and I didn't give him a low score because I knew he was injured, then that person should have been called. And that was noted during the hearing.
PN212
MR McKEOWN: Your Honour, I am indebted to my learned friend for that. It still does not detract from my submission that they want to have their cake and eat it too. They want to put documents to the witness and then say, but, no, we don't want to rely upon it.
PN213
In my submission, your Honour, once it is in, it is in. It is open for the Commission to take whatever weight in terms of it - my learned friend wants to say that a number of these skills audit - - -
PN214
THE SENIOR DEPUTY PRESIDENT: I'm sorry, sorry, Mr McKeown, for cutting you off. Was it tendered, was it actually marked as an exhibit in the proceedings?
PN215
MR ARMSTRONG: It was marked for identification, sir.
PN216
MR McKEOWN: I'm indebted to my learned friend.
PN217
MR ARMSTRONG: And that is page 96 of appeal book volume 1 at paragraph 886.
**** COREY MARCUS BAKIC XXN MR McKEOWN
PN218
MR McKEOWN: And your Honour that was the subject of submissions in terms before the Full Bench. That it submitted in terms of it that, if the document is there, it can be put to this particular witness which I want to put now in terms of the skill ratings associated with that. In terms of - because my learned friend wishes to say that the, you know, we can't take any weight etcetera but the document itself, when one looks at the document, and there is evidence from the company witness statements in terms of other supervisors who indicate that they filled out these particular skills assessments and how they adopted that - - -
PN219
THE SENIOR DEPUTY PRESIDENT: But they were never ever called, were they?
PN220
MR McKEOWN: Sorry your Honour?
PN221
THE SENIOR DEPUTY PRESIDENT: Were they called?
PN222
MR McKEOWN: Yes they gave evidence and they had statements - - -
PN223
THE SENIOR DEPUTY PRESIDENT: Oh, yes, yes. But the - not all of the skills assessments went in, did they?
PN224
MR McKEOWN: No, your Honour, from what I understand. But it is an issue, your Honour, in terms of clearly there is a document in the appeal book. What's been said from the other side is that, well, we were very careful. We - it wasn't properly tendered so therefore no reliance can be had of the document but it is a bit like saying, with respect, that, well, we will show you this so that you can deny it but we don't acknowledge that it's a proper document full stop. In my submission, it is open, particularly in terms of this witness as to his skill levels because constantly thrown up is the fact that he is middle range but submitted, your Honour, if the issue can be explored, that he is not middle range at all. He, in fact, failed the skills audit if you take a purely numeric score out of the skills audit.
**** COREY MARCUS BAKIC XXN MR McKEOWN
PN225
THE SENIOR DEPUTY PRESIDENT: Well, the difficulty I have though is, at the end of the day - I mean we can't re-open the question that's already been determined that the Commission was of the view that the skills audit was, in some way, flawed or the selection process was, in some way, flawed because the skills audit on their face don't reflect what the company says they do. But the difficulty I'm having is that if the skills audit shows that the person is the middle of the range or fourth from the bottom or whatever, in the absence of some evidence to demonstrate that there is other retrenchments since these retrenchments occurred, that is since February 2001, or that there are pending or impending retrenchments to occur in the very near future, I just don't see how it's going to assist me in saying, well, the fact that he was fourth last on the list or mid-range, might have meant that at some time in the future when or if there are further retrenchments, he be selected. I mean, that is just too - - -
PN226
MR McKEOWN: Yes. Your Honour, the difficulty I have is there has been further retrenchments in the company but, as referred to in the supplementary statement, but not in Wodonga location - - -
PN227
THE SENIOR DEPUTY PRESIDENT: Yes, yes.
PN228
MR McKEOWN: And without the benefit of instructions, it is something I would need to clarify, I suppose, in terms of with Mr McGilly. And I'm not sure whether your Honour it might be appropriate to seek a short adjournment.
PN229
THE SENIOR DEPUTY PRESIDENT: Well, before we do that, I mean, again, I am not sure what you want put to the witness yet but if you are going to ask him about an interview that he had in relation to his performance or something like that, I would see some relevance in that if you are going to call somebody else to give evidence about that. If you want to go to his skills assessment, it seems to me, as he has already given evidence that he has never seen the form or the document before, it doesn't - it can't carry any weight at all.
**** COREY MARCUS BAKIC XXN MR McKEOWN
PN230
MR McKEOWN: But, your Honour, when he says he's never seen the document before, he's obviously seen it when he has identified it previously or am I incorrect in that assumption?
PN231
MR ARMSTRONG: You are incorrect in that assumption. With respect, Commissioner, can I read from page 96, the appeal book, volume 1, paragraph 884 - I beg your pardon, yes he can see the document, Paragraph 885:
PN232
Have you seen that document before?---No, no, I haven't. Commissioner, again -
PN233
This is me talking:
PN234
I request that that document be marked for identification.
PN235
The Commissioner: A26.
PN236
It was never identified. It doesn't matter how it got in before the Commission, sir, it was never identified. This witness hasn't seen it. It bears a date, it might - we don't know who wrote it, we don't know whether the date on it is valid, we don't know what considerations they took into account. This document is a mystery. It has no weight. It was put to this witness so that we could find out whether the witnesses had seen these skills audits but then when they all said, no they had not, nothing then came from the Commission to verify the audits.
PN237
THE SENIOR DEPUTY PRESIDENT: Was it in a document attached to somebody else's witness statements?
PN238
MR ARMSTRONG: No.
**** COREY MARCUS BAKIC XXN MR McKEOWN
PN239
THE SENIOR DEPUTY PRESIDENT: No. Not from the respondent either?
PN240
MR ARMSTRONG: No.
PN241
THE SENIOR DEPUTY PRESIDENT: No.
PN242
MR ARMSTRONG: No. Senior Deputy President, there were three witnesses - sorry, I withdraw that. There were two witnesses from the company who, between them dealt with the skills assessments audits of three of the applicants - Mr Wellardsen had dealt with Mr Smith. As the applicants have submitted before, that assessment was a farce. He didn't even know that Mr Smith was the pilot supervisor. Mr Gasperov dealt with Mr Rapsey and even - and Mr Rapsey and Mr Gasperov are the only two applicants for whom we can see their relative positioning in the skills assessment - sorry, Perrett and Rapsey, yes. I beg your pardon. Mr Gasperov I have dealt with - Mr Perrett and Mr Rapsey.
PN243
Now we can see for those two where they were ranked relative to their peer groups. Mr Gasperov's own evidence eventually, after conducting quite some defence from the box, his own evidence was that on the skills assessment Mr Rapsey ought not to have been selected and he was fourth from the bottom out of a group of, I think, about nine. So he was very much mid-range. Mr Perrett, with whom Mr Gasperov had had the altercation, Mr Gasperov is quite candid in the assessment, that he says, "Attitude is the main influencing factor".
PN244
Now the inappropriateness of Mr Gasperov doing Mr Perrett's audit is manifest in my submission. So for the three audits that have been - where the authors have been identified, each of them raised very serious concerns about the way that they were put together. We've got four other audits, the authors of which were never even called, despite it having - and I've given transcript references in the submissions. It was noted specifically when each of these documents was produced to the witness and marked for identification because the witnesses could not say what it was, that it was never then identified. We don't know who did them.
**** COREY MARCUS BAKIC XXN MR McKEOWN
PN245
THE SENIOR DEPUTY PRESIDENT: I mean I understand your argument but, as you know, the Commission is not bound by the rules of evidence and the Commissioner was entitled to take those matters into account. Whether he did or not is not entirely clear but I take your point that those witnesses were not called and the status of those documents we don't really know. But let me hear what Mr McKeown's question is again because I have forgotten what it was. I thought it was to do with the interviews and not with the skills assessment.
PN246
MR McKEOWN: That was correct, your Honour.
PN247
THE SENIOR DEPUTY PRESIDENT: Yes.
PN248
MR McKEOWN: But I did wish to indicate that in terms of the skills but I won't go there at the moment. In terms of the structured interview - it might be more efficient if - I don't think I've got a spare copy of the appeal book, your Honour, but - - -
PN249
THE SENIOR DEPUTY PRESIDENT: I have a copy of the appeal book.
PN250
MR McKEOWN: If the witness could be shown appeal book volume 2 and I will take him to - - -
PN251
THE SENIOR DEPUTY PRESIDENT: What page did you want?
PN252
MR McKEOWN: Page 376, your Honour.
PN253
You see that document there, Structured Interview?---Yes.
**** COREY MARCUS BAKIC XXN MR McKEOWN
PN254
And that is - this is of an interview that took place on 8 February 2001. Now I think - and just clarify for me again. Firstly, do you recall being interviewed around that date?---Yes I do.
PN255
And can you recall who interviewed you?---No I can't.
PN256
All right. In terms of the - you will note there, where it refers to - "Tell me briefly about your past positions", you put, "Casual - what is - I can't quite read that - is that Drake, is it?---Yes.
PN257
So, all right. And in terms of where you've got - all right, that's - where you're asked the question, "How do you see yourself fitting into the new direction of the company?" Firstly, what direction did you understand the company was going in?---In the way of redundancies, you mean?
PN258
Mm?---Down-size - - -
PN259
You realise then that the company had to reduce its numbers, didn't you?---Yes.
PN260
And that was why the interview was taking place?---Yes.
PN261
And you understood that was the purpose of that interview?---Yes.
PN262
And that, in effect, you were being asked, "What were your positives" so to speak, in terms of that situation?---From what I recall, yes.
PN263
And the response there in terms of, "How do you see yourself fitting into the company new direction?", there's an indication there, "Uncertain". Is that how you felt at that point in time?---Well, I had just got back from holidays and it was when all these redundancies were happening and was unsure what was happening around the place, yes.
**** COREY MARCUS BAKIC XXN MR McKEOWN
PN264
Now Mr Bakic I just wish to ask you a question in terms of after you were made redundant. Firstly, in terms of your supplementary statement, is it correct that at the time you were retrenched you were on a base salary of 496.89, is that correct? If it's easier, you can go to the letter of advising you of retrenchment, there's a schedule there headed: Bakic Redundancy Summary Payment - or could I put it this way, in terms of - and if it's too difficult, please say so, but in terms of - your base salary was 496.07 and then you had a shift allowance of $99.38 - - -
PN265
THE SENIOR DEPUTY PRESIDENT: 496.89, was it?
PN266
MR McKEOWN: 496.89 is on the sheet there, your Honour.
PN267
Did you receive a shift allowance at that time?---Was I? Yes.
PN268
What were you working? Night shift?---It was split shifts. Day - - -
PN269
Split shift?---Yeah.
PN270
Could I just take you to the second page of that document. If you go down to the summary. You see the net payment figure of $9433.36. Do you see that figure?---It is just a little bit hard to read, that is all.
PN271
Yes, it is a little bit difficult?---9433.36, yes, found that.
PN272
Are you able to say how much that would equate, roughly, in terms of number of weeks as a net pay period, based on your net pay?---It would just depend because I had a fair bit of overtime there so it could vary.
**** COREY MARCUS BAKIC XXN MR McKEOWN
PN273
All right. Now, in terms of following our retrenchment, you obtained work with Labour Hire, is that correct?---Drake.
PN274
Drake? Is that - - - ?---With - through Tenix.
PN275
Same thing, is it? Okay. And in terms of the - I am sorry, I will be more precise. When did you start with Drake following your retrenchment?---It was May. May last year, with Tenix.
PN276
So, you were retrenched in February and you started in May. Is that correct?---Yes.
PN277
And then all of the payments that you received as per your supplementary witness statement?---Yes.
PN278
And in terms of - just bear with me one moment. And Fast Track, you gained employment with them as well?---No.
PN279
You don't recall employment with an organisation called Fast Track?---No.
PN280
Your Honour, could I request - I think there is a folder of the subpoena documents. That was produced by the appellants.
PN281
THE SENIOR DEPUTY PRESIDENT: Produced by the applicants.
PN282
MR McKEOWN: I am indebted to my learned friend as an instructor. They have indicated that appears to be the software company that produces the pay slips so I won't pursue that, your Honour.
**** COREY MARCUS BAKIC XXN MR McKEOWN
PN283
THE SENIOR DEPUTY PRESIDENT: Right.
PN284
MR McKEOWN: In terms of the situation and currently you have continued with full time employment with Tenix?---That is correct.
PN285
And that is per the payments you have indicated there?---Yes.
PN286
Thanks, Mr Bakic.
PN287
Thank you, your Honour.
PN288
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr McKeown.
PN289
MR ARMSTRONG: Nothing arising, Senior Deputy President.
PN290
PN291
MR ARMSTRONG: The next applicant I wish to call, Senior Deputy President, is Terrence Hodge.
PN292
PN293
MR ARMSTRONG: Mr Hodge, do you have a copy of the witness statement that you have made in this proceeding with you?---I have got the supplementary one.
PN294
Yes, sorry, the supplementary statement, yes?---Okay, yep.
PN295
That is a two page statement dated 17 April 2002?---Yes, it is.
PN296
In paragraph 3 of that statement you refer to an exhibit TH4 which is a copy of the redundancy letter and calculations you received from the company. Do you see those documents attached?---Yes, I do.
PN297
And they behind cover sheet marked exhibit TH4?---Yes.
PN298
You see that. At the end of those documents there is a cover sheet marked TH5. Can you see that?---Yes.
PN299
And behind that cover sheet is a document entitled: Terry Hodge's t/as T.H. Mowing. Do you see that?---Yes, I do.
PN300
Is that the exhibit TH5 being a copy of the profit and loss statement prepared by your accountant for the period up to 31 December 2001 for your lawn mowing business?---Yes, it is.
PN301
And there are four pages to that exhibit, is that correct?---Yes, there are.
PN302
And then there is another exhibit sheet headed: TH6. Do you see that?---Yes.
**** TERRENCE KEITH HODGE XN MR ARMSTRONG
PN303
With one page behind it headed: TH Mowing?---Yes.
PN304
Is that exhibit TH6 being a copy of an income statement prepared by your accountant showing your income from the business from August 2001 until 22 March 2002?---Yes, it is.
PN305
Thank you. Have you had an opportunity to read your supplementary witness statement recently, Mr Hodge?---Yes, I have.
PN306
Are there any corrections you wish to make to it?---No, there is not.
PN307
All right. Is it true and correct in every particular?---Yes, it is.
PN308
I tender that, Senior Deputy President.
PN309
THE SENIOR DEPUTY PRESIDENT: Yes.
EXHIBIT #AA2 SUPPLEMENTARY WITNESS STATEMENT OF TERRENCE KEITH HODGE
PN310
MR ARMSTRONG: I thank you, Senior Deputy President. Excuse me one moment, Senior Deputy President.
PN311
Mr Hodge, can I hand you up this two page document, please. Mr Hodge, are you able to identify that document?---Yes, I do.
PN312
What is it?---No, I don't think I have seen that before. No, I don't think I have seen that before.
**** TERRENCE KEITH HODGE XN MR ARMSTRONG
PN313
Do you recognise the hand-writing on it, Mr Hodge?---No, I don't.
PN314
Thank you, Mr Hodge, could you hand that back.
PN315
No further questions, Senior Deputy President.
PN316
THE SENIOR DEPUTY PRESIDENT: Yes. Yes, I did mark it exhibit AA2, yes. Mr McKeown?
PN317
MR ARMSTRONG: I am sorry, Senior Deputy President.
PN318
Mr Hodge, could I hand you that document again. Could I just ask you to look at the contents. Have you seen the contents of that document before?---No, I haven't.
PN319
PN320
MR McKEOWN: Mr Hodge, you were with the company for some 19 years, is that correct?---Yes, I was, yep.
PN321
And you were a union member?---Yes.
PN322
And the union was involved, was it not, in the retrenchment process?---Yes, it was.
PN323
And you were interviewed by Mr Furst, do you recall that, on or about 7 February?---On 8 February it was, yes. It was Mr Furst.
**** TERRENCE KEITH HODGE XXN MR McKEOWN
PN324
And in terms of the situation, the situation, was it not, that you weren't on WorkCover at that point in time, were you?---Yes, I was.
PN325
You were?---Yes.
PN326
In terms of the situation, when did you go on WorkCover?---I can't quite recall.
PN327
Because in fact you weren't on WorkCover at the time of the retrenchments, were you?---Yes, I was.
PN328
Just bear with me. But you don't recall when you went on WorkCover?---No, I don't.
PN329
Because the document that my learned friend was asking you to, if you like, identify is a document addressed to you dated 13 March 2001. It refers to:
PN330
The above claim. And have been advised by your employer that you are in receipt of redundancy package effective from 8 February 2001.
PN331
It further states that:
PN332
Under the Accident Compensation Act as amended you will be subject to section 96.
PN333
Do you recall have discussions with your solicitor about that?---No.
PN334
You don't?---No.
**** TERRENCE KEITH HODGE XXN MR McKEOWN
PN335
Do you recall in terms of the situation that - well, when do you say you were in receipt of WorkCover payments?---I think it was 51 weeks or something.
PN336
Well, can I put it this way, Mr Hodge. In terms of when you attended the interview, did you come off WorkCover for that interview or were you already at work?---I was still at work, yeah.
PN337
So, you weren't off on WorkCover when you were interviewed?---No, but I was on light duties whatever.
PN338
All right?---Yeah.
PN339
Well, maybe there is a slight misunderstanding?---Yeah, I think - yeah.
PN340
I am not talking about - you were at duty at Moore Paragon?---Yeah.
PN341
And you were doing light duties?---Light duties, yeah.
PN342
You weren't away from the workplace on Workcover?---No.
PN343
Okay. And that in fact you put in a claim after you were retrenched. Is that correct?---No, I don't think I did.
PN344
Well, in terms of the letter that my learned friend was trying to get you to identify, firstly, your solicitors, in regard to this matter are also your solicitors in regard to your WorkCover?---Yes.
PN345
Yes. And you understood, did you not, that you were challenging the company's decision to terminate you?---Yes.
**** TERRENCE KEITH HODGE XXN MR McKEOWN
PN346
You understood that, didn't you?---Yes.
PN347
Because you were saying you should not have been selected for retrenchment?---That is correct.
PN348
Correct. And you understood that because you had instructed your solicitors and they had filed an application in the Commission?---That is correct.
PN349
Yes. And in terms of the situation, you don't recall ever being advised by your solicitors that you are not going to get your WorkCover payments because you received this retrenchment pay-out?
PN350
MR ARMSTRONG: Objection.
PN351
THE SENIOR DEPUTY PRESIDENT: I don't think he is talking about it in terms of professional advice, is he? It that the basis of your objection?
PN352
MR ARMSTRONG: It was, yes, Senior Deputy President.
PN353
THE SENIOR DEPUTY PRESIDENT: Perhaps you can put it another way, Mr McKeown.
PN354
MR McKEOWN: You understood, did you not, Mr Hodge, that - well, I will put it another way. You were not in receipt of WorkCover payments when you were retrenched by the company, were you?---No.
PN355
You did put in a claim for WorkCover payments?---Yes.
**** TERRENCE KEITH HODGE XXN MR McKEOWN
PN356
And you did receive advice to the effect that you weren't going to get your WorkCover payments for a certain period?---That is correct, yes.
PN357
So, you did get that advice?
PN358
THE SENIOR DEPUTY PRESIDENT: Who told you that? Who told you that, Mr Hodge?---The solicitors. I think I got a letter from Moore Paragon's actually to say an exclusion period of 51 weeks or - - -
PN359
Yes, all right?---Yes.
PN360
Sorry, Mr McKeown.
PN361
MR McKEOWN: Thank you, your Honour.
PN362
In terms of that situation, but you understood you were challenging the very reason that you had been retrenched, didn't you?---Hm.
PN363
Did you state anything to your solicitors in terms of, well, hang on a minute, why am I not receiving WorkCover payments?
PN364
MR ARMSTRONG: Objection.
PN365
THE SENIOR DEPUTY PRESIDENT: Well, we can't go into his - - -
PN366
MR McKEOWN: Yes, I will retract that, your Honour.
**** TERRENCE KEITH HODGE XXN MR McKEOWN
PN367
THE SENIOR DEPUTY PRESIDENT: You can ask him - did you understand why you weren't receiving WorkCover payments at the time?
PN368
THE WITNESS: Yes.
PN369
What did you understand that to be?---Because of my redundancy. I had to - yeah, because of the redundancy payment.
PN370
All right.
PN371
MR McKEOWN: In terms of the situations prior to starting up your lawn mowing business, when did you commence that?---In August of last year.
PN372
What is your current situation in terms of WorkCover payments?---Nothing.
PN373
Did you ever receive, I am talking of the post-termination period, WorkCover payments?---Yeah. No, nothing, no.
PN374
And did you inquire as to why?---No.
PN375
So, when it indicates in the letter that - you referred to before, it indicates that you have a non-entitlement period of 57 weeks. And this is referring back to March of 2001. Nothing occurred after that 57 weeks?---No.
PN376
What action have you taken in regard to WorkCover payments?---Nothing.
PN377
Since you were terminated?---Yeah, nothing.
**** TERRENCE KEITH HODGE XXN MR McKEOWN
PN378
Nothing?---No.
PN379
Did you make any inquiries about it?---No.
PN380
Why not? I take it you need funds?---Yeah.
PN381
You made no inquiries?---No.
PN382
In terms of your retrenchment pay-out, you received a net sum of $46,404.86?---Yes, I did.
PN383
And you utilised 20,000 of that according to your statement there in terms of the purchase of the garden business. Is that correct?---That is correct.
PN384
Your Honour, if I could seek to examine the subpoena documents in relation to Mr Hodge.
PN385
See, Mr Hodge, the document that I was you to before was provided by - well, under the subpoena it was provided in terms of documents produced. But you don't recall it?---No.
PN386
Prior to starting up your lawn mowing business, how many positions did you apply for?---About five.
PN387
Thank you, Mr Hodge.
PN388
**** TERRENCE KEITH HODGE RXN MR ARMSTRONG
PN389
MR ARMSTRONG: Mr Hodge, do you recall participating in any conciliation conferences conducted by the Victorian WorkCover Authority?---No.
PN390
No. As I understand your evidence, you had been told when you were dismissed that there was an exclusion period that applied to any weekly benefits under WorkCover, is that right?---Yes, that is right.
PN391
Can you recall who told you that?---No.
PN392
Do you recall whether it was explained to you why that was?---No, I can't.
PN393
What was your understanding as to why you weren't going to get weekly payments?---Just because of the redundancy pay-out I got.
PN394
Okay. And do you recall who told you that?---No, I don't.
PN395
And how long was that exclusion period going to last, on your understanding?---57 weeks.
PN396
Okay. So, 57 weeks from 8 February 2001?---Yeah.
PN397
So, that would mean, would it not, that the exclusion period ended in about late April this year?---Yeah.
PN398
And you did not make any inquiries about what would happen with your weekly payments at the end of the exclusion period?---No.
**** TERRENCE KEITH HODGE RXN MR ARMSTRONG
PN399
No. Why not?---I just had the lawn moving business on my mind at the time and, yeah, I just didn't, sort of, give it a thought.
PN400
No further questions, Senior Deputy President.
PN401
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Armstrong. Mr Hodge, the injury you suffered prior to your retrenchment was an injury to your elbow, was it?---That is correct, yeah.
PN402
And does that still trouble you or not?---Not as much as what it did when I was at Paragon's, yeah.
PN403
Right. Yes, anything arising out of that?
PN404
PN405
MR McKEOWN: Is it your understanding that there is on-going litigation in regard to WorkCover matters pertaining to your injury?---Yeah.
PN406
And what is that?---I am not sure.
PN407
You don't recall anything your solicitors have indicated about that issue?---No, I don't, no.
PN408
When did you last - no, I won't press it further, your Honour.
**** TERRENCE KEITH HODGE FXXN MR McKEOWN
PN409
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Armstrong?
PN410
MR ARMSTRONG: Nothing arising, Senior Deputy President.
PN411
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Hodge, you are excused.
PN412
MR ARMSTRONG: The next witness from the applicants, Senior Deputy President, is Darrell Murphy.
PN413
MR ARMSTRONG: Mr Murphy, you just made a supplementary witness statement in this proceeding?---Yes.
PN414
Do you have a copy of that statement with you?---Yes.
PN415
Now it is a two page statement, correct?---Yes.
PN416
It is dated 17 April 2002?---Yes.
PN417
Now the third page of the bundle in your hand, was that an exhibit sheet referring to an attachment marked: D.M. Supple?---Yes.
PN418
Behind that exhibit sheet is a letter from Moore Paragon dated 8 February 2001?---Yes.
PN419
And two pages of calculations?---Yes.
PN420
Now is that exhibit the document referred to in paragraph 3 of your supplementary statement which is a true copy of the redundancy letter and calculations you received from Moore Paragon when you were terminated?---Yes.
PN421
Mr Murphy, have you had an opportunity to read your supplementary witness statement recently?---Yes.
PN422
Are there any corrections you wish to make to it?---Yes.
PN423
What are they?---Paragraph 4:
**** DARRELL JOHN MURPHY XN MR ARMSTRONG
PN424
My wife has returned to a part-time job two weeks ago.
PN425
And paragraph 6:
PN426
Also paid back family $2000 I had used to survive while waiting for insurance.
PN427
And I have received - I've grossed $800 in starting the business but costs haven't come out of that.
PN428
Thank you.
PN429
THE SENIOR DEPUTY PRESIDENT: So you want to add to the end of paragraph 4, "My wife returned to work" - when did you say?---Two weeks ago. Part-time work.
PN430
On a part-time basis?---Yes.
PN431
MR ARMSTRONG: Now, Mr Murphy- - -
PN432
THE SENIOR DEPUTY PRESIDENT: Sorry, what was paragraph 6, I didn't get all of that?---Sorry. Paragraph 6, I also had to pay back money I borrowed off my family just to survive and pay bills as I was waiting for insurance. And paragraph 10, it is $800 I have grossed.
PN433
And how much money did you have to pay back to your family?---To my family?
**** DARRELL JOHN MURPHY XN MR ARMSTRONG
PN434
Yes?---$2000.
PN435
Yes. Thank you, Mr Armstrong. Sorry.
PN436
MR ARMSTRONG: Thank you, Senior Deputy President.
PN437
Mr Murphy, could I hand you up this document. I beg your pardon, Senior Deputy President, I tender that witness statement.
EXHIBIT # AA3 SUPPLEMENTARY STATEMENT OF DARRELL MURPHY, INCORPORATING AMENDMENTS TO PARAGRAPH 4, 6 AND 10
PN438
MR ARMSTRONG: Now, Mr Murphy, you have just been handed a one page document?---Yes.
PN439
Have you seen that before?---I'm not certain, it may have come with the final cheque from the insurance company.
PN440
Can I ask you to turn to paragraph 5 of your supplementary statement? You refer there to having received an amount of $18,800 from Safety Net Insurance?---Yes.
PN441
As accident insurance?---Yes.
PN442
Now the one page document I've just handed to you is that the letter that came with the cheque that you refer to in paragraph 5?---I couldn't be sure whether it is the exact one, more than likely it is I just can't remember exactly.
**** DARRELL JOHN MURPHY XN MR ARMSTRONG
PN443
Mr Murphy, do you recall whether you received a cheque for $17,858.29?---Yes.
PN444
I tender that letter, Senior Deputy President.
PN445
THE SENIOR DEPUTY PRESIDENT: Is that in the discovered documents, do you know.
PN446
MR ARMSTRONG: Yes, it is in the summonsed documents,Senior Deputy President.
PN447
THE SENIOR DEPUTY PRESIDENT: Yes, I will mark it as exhibit AA4. How do I describe the document?
PN448
MR ARMSTRONG: I think, Senior Deputy President, that you will have received a folder of the summonsed documents?
PN449
THE SENIOR DEPUTY PRESIDENT: Yes, I have.
PN450
MR ARMSTRONG: Produced by the applicants. If you could go to tab 4 in the folder? The letter I have just handed up was - - -
PN451
THE SENIOR DEPUTY PRESIDENT: The last item.
PN452
MR ARMSTRONG: One of the last two documents.
PN453
THE SENIOR DEPUTY PRESIDENT: The last two documents?
**** DARRELL JOHN MURPHY XN MR ARMSTRONG
PN454
MR ARMSTRONG: Yes, and I am about to deal with the last one.
PN455
THE SENIOR DEPUTY PRESIDENT: So that is payment advice, Mr Darrell J. Murphy, Australian Taxation Office?
PN456
MR ARMSTRONG: No I think it was after that one, Senior Deputy President.
PN457
THE SENIOR DEPUTY PRESIDENT: A document with the heading: Moore, M-o-o-r-e, dated 11 December 2001?
PN458
MR ARMSTRONG: Yes, Senior Deputy President.
PN459
THE SENIOR DEPUTY PRESIDENT: Re income protection. I will mark that as exhibit AA3.
PN460
MR ARMSTRONG: I think it is AA4, Senior Deputy President.
PN461
THE SENIOR DEPUTY PRESIDENT: Sorry, I hadn't - yes, I'm sorry, it is AA4. Thank you.
PN462
MR ARMSTRONG: Now, Senior Deputy President, within the last three or four documents of that bundle summonsed from Mr Murphy there is another letter dated February 11 2002 from Safety Net Insurance.
PN463
THE SENIOR DEPUTY PRESIDENT: Is this one I have here?
**** DARRELL JOHN MURPHY XN MR ARMSTRONG
PN464
MR ARMSTRONG: I'm instructed it is not there, Senior Deputy President, I will leave - I won't deal further with that but - sorry, the document I meant, Senior Deputy President, was a Business Activity Statement of January to March 2002 which is in that last group.
PN465
THE SENIOR DEPUTY PRESIDENT: There are a number of documents, income tax returns? Is that right?
PN466
MR ARMSTRONG: No, not that one, Senior Deputy President, I think it is after that.
PN467
THE SENIOR DEPUTY PRESIDENT: Business Activity Statement, yes?
PN468
MR ARMSTRONG: That is it and it is a two page document, I think, Senior Deputy President.
PN469
THE SENIOR DEPUTY PRESIDENT: Yes. Do you wish to tender that? Or it hasn't been identified?
PN470
MR ARMSTRONG: Through the witness, Senior Deputy President, yes.
PN471
Mr Murphy, could I show you this two page document? Mr Murphy, can you identify that document?---Yes. It is my BAS statement.
PN472
That is the BAS statement for the business you are now operating?---Yes.
PN473
Thank you. I tender that document, Senior Deputy President.
**** DARRELL JOHN MURPHY XN MR ARMSTRONG
PN474
THE SENIOR DEPUTY PRESIDENT: Yes.
EXHIBIT #AA5 BUSINESS ACTIVITY STATEMENT FOR MR MURPHY FOR THE PERIOD JANUARY TO MARCH 2002
PN475
MR ARMSTRONG: No further evidence-in-chief, Senior Deputy President.
PN476
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Armstrong. Mr McKeown?
PN477
PN478
MR McKEOWN: I was wondering, your Honour, could I have exhibit AA4, please? My friend has provided me with a copy. Thanks, your Honour.
PN479
Mr Murphy, the Income Protection Scheme, who was that provided by?---It was part of the EBA in - with Safety Net.
PN480
So it was provided by the company?---Well, we paid for it. It was part of our EBA agreement.
PN481
You're a union member?---Yes.
PN482
And which is the union on site there?---AMWU.
**** DARRELL JOHN MURPHY XXN MR McKEOWN
PN483
Who is your union?---Yeah, I think so.
PN484
AMWU Printing Division?---No. I'm not sure what they go under.
PN485
Okay. In terms of the situation, you knew prior to going on leave that retrenchments was going to take place with the company?---I wasn't on leave. I was injured.
PN486
Away - - -?---Yes, from October.
PN487
Sorry. When - you were away from October, were you?---Yes. Had an operation in May, waiting for one in March, but it had to be postponed until a later date.
PN488
THE SENIOR DEPUTY PRESIDENT: March this year or which year?---The same year I was retrenched.
PN489
All right?---Subsequently I had the 'flu, so they couldn't operate on me.
PN490
MR McKEOWN: But you are aware - correct me if I'm wrong, the question I put to you before, you were aware that retrenchments were taking place in the company, weren't you?---I had taken some certificates into the company the day they were holding the meeting, so I sat through a meeting. And you are aware that in terms of the situation that the company was going through a process of calling for volunteers and if there wasn't enough volunteers there were going to be people selected. You were aware of that?---I was aware they were asking for that but I was also aware they had 42 - asked for voluntary.
PN491
And in terms of the - and you had only been with the company a relatively short time, hadn't you?---If you call two years a short time, well it is a short time.
**** DARRELL JOHN MURPHY XXN MR McKEOWN
PN492
Well, you would agree that two years is not as long as 19 years?---Yes.
PN493
It is not as long as 10 years?---Yes.
PN494
And in terms of the situation - and the situation is it not that unfortunately you are returning to South Australia, is that right, due to illness in the family?---If I can, when I can. My wife's mother is very ill.
PN495
In terms of the - effectively that Income Protection period covered you from 14 April, is that correct? 14 April 2001?---No.
PN496
I will read you the letter?---It covered me from October.
PN497
Well, according to the letter which is marked exhibit AA4 it indicates that you received a cheque for $17,858.29 and that was to cover lost wages for the period 14 April to 7 November?---Yes.
PN498
Okay. And that no tax had been deducted that had been a net payment to you in relation to that?---Yes.
PN499
In terms of the situation when you were retrenched you were provided with a net payment of $7495.27. Does that roughly accord with your memory of?---Yes.
PN500
Now - and you've commenced your own water divining business. Is that right?---Yes. I am in the process of - yes.
PN501
In terms of the - had you been informed in terms of the audit skill in regard to yourself?---I had no - no.
**** DARRELL JOHN MURPHY XXN MR McKEOWN
PN502
I have no further questions, thank you, Mr Murphy.
PN503
THE SENIOR DEPUTY PRESIDENT: Thank you Mr McKeown. Mr Armstrong.
PN504
MR ARMSTRONG: Senior Deputy President, just in the interests of completeness, could I perhaps ask you to turn to page 303 of volume 2 of the appeal book?
PN505
THE SENIOR DEPUTY PRESIDENT: I was just there, I might say. Yes.
PN506
MR ARMSTRONG: Senior Deputy President, can I draw the Commission's attention to paragraph 37 which obviously is to be read together with Mr Murphy's supplementary statement and the supplementary statement was drafted on that basis, I draw to the Commission's attention -- I don't propose to take Mr Murphy to it unless it would be of assistance.
PN507
THE SENIOR DEPUTY PRESIDENT: No, I read it in fact while Mr Murphy was giving his evidence and I - - -
PN508
MR ARMSTRONG: If it pleases.
PN509
THE SENIOR DEPUTY PRESIDENT: I had some recollection of seeing something about it previously and I just wanted to confirm that there was a period covered before that time.
PN510
MR ARMSTRONG: Yes. If it pleases, Senior Deputy President, no further questions for Mr Murphy. Can he be excused?
**** DARRELL JOHN MURPHY XXN MR McKEOWN
PN511
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Murphy, you are excused?---Thank you.
PN512
MR McKEOWN: Your Honour, I seek a - I realise it is rising a bit too early, I was going to seek some additional time of the lunch break to get some instructions in relation to Mr McGilly but it probably is - - -
PN513
THE SENIOR DEPUTY PRESIDENT: Well it's only 15 minutes more. I mean - do you have any objection to us adjourning now Mr Armstrong?
PN514
MR ARMSTRONG: No Senior Deputy President.
PN515
THE SENIOR DEPUTY PRESIDENT: Assuming at 1.30 pm.
PN516
MR ARMSTRONG: If it pleases.
PN517
THE SENIOR DEPUTY PRESIDENT: Is that - - -
PN518
MR McKEOWN: Thank you your Honour.
LUNCHEON ADJOURNMENT [12.24 pm]
RESUMED [1.46 pm]
PN519
MR ARMSTRONG: Senior Deputy President, thank you for the indulgence of sitting over lunch time and I apologise for the fact that we weren't able to be ready at 1.30.
PN520
THE SENIOR DEPUTY PRESIDENT: No need.
PN521
MR ARMSTRONG: Dr Moeller has had to come across from the other State so, if it pleases, I now call Dr Dulcie Moeller.
PN522
THE SENIOR DEPUTY PRESIDENT: Thank you. I was going to say, which State?
PN523
MR ARMSTRONG: Dr Moeller, you are Mr Lindsay Rapsey's treating general practitioner. Is that correct?---Yes, that's correct.
PN524
And I think you have in your hand a copy of a letter dated 25 April 2002?---Yes.
PN525
Do you have that?---Yes I do.
PN526
It is a letter of three pages, the last page being one sentence and then a signature?---Yes.
PN527
Is that your signature?---Yes, that is my signature.
PN528
And are you the author of that letter?---Yes, I am the author of this letter.
PN529
Have you had an opportunity to read that letter recently?---Oh, not recently, no, not really.
PN530
Could I ask you to perhaps read through it now?---Okay, yes.
PN531
Senior Deputy President, do you have a copy of that letter?
PN532
THE SENIOR DEPUTY PRESIDENT: I do, thank you, yes.
PN533
MR ARMSTRONG: Is that letter an accurate statement of your opinions in relation to Mr Rapsey?---Yes.
**** DULCIE MOELLER XN MR ARMSTRONG
PN534
I tender that letter, Senior Deputy President.
PN535
MR ARMSTRONG: Thank you Senior Deputy President. Dr Moeller, in your opinion as Mr Rapsey's treating general practitioner - I withdraw that. What was your opinion as to whether his employment at Moore Paragon was helpful or not helpful to him in terms of managing his injury?---The - I think working at Moore Paragon, it - at least the last lot of work he was doing, I think it was beneficial for him to continue working because of his, number one, his need to work, the fact that he was able to attain eight hours of employment through sheer determination and he was able to continue doing those eight hours.
PN536
And, in your opinion, if Mr Rapsey had not ceased working for Moore Paragon early last year, would he - how long would he have continued to be able to work at Moore Paragon?---With his - the duties he was performing before he was terminated, he would be able to continue those - he has prove - he has proven to us that he could continue with those duties and his rehabilitation provider was very happy with that and supported him.
PN537
No further questions, Senior Deputy President.
PN538
THE SENIOR DEPUTY PRESIDENT: Yes, thank you Mr Armstrong. Yes Mr McKeown.
PN539
**** DULCIE MOELLER XXN MR McKEOWN
PN540
MR McKEOWN: Doctor, you are a general practitioner?---Yes.
PN541
Do you hold any specialists qualification in regard to orthopaedics or psychiatry, of that nature?---No I don't.
PN542
In terms of - you operate a general practice?---Yes.
PN543
And you treat a number of variety of patients, I take it?---Yes.
PN544
And that would include, not only people on Work Cover, but a whole range of?---That's correct.
PN545
And in terms of - how long was Mr Rapsey been a patient?---Oh, quite a few years - I think about 1990, early probably '91 perhaps, I think. '92, no '92, early '92, he has been a patient but he has been a patient at the clinic a little bit before that but I have seen him since '92, early '92.
PN546
And in terms of - you've seen him this year?---Yes.
PN547
And you refer in your report:
PN548
I reply to your letters of 11 April and 23 April -
PN549
What was contained in those letters?---Just exactly what I said there, a medical report on the effect the termination of employment had on Mr Rapsey.
PN550
It contained no further additional information, it was simply a request of that nature?---I don't recall, I don't recall that, no. It was just how it affected him.
**** DULCIE MOELLER XXN MR McKEOWN
PN551
All right. You indicate in your report that he's continued to suffer a significant ongoing low back pain?---Yes.
PN552
Caused by L5/S1 disc prolapse. The fact is that Mr Rapsey has considerable difficulty, does he not, in coping with walking and even standing for any extended period?---Yes but he can still manage to do his work because part of his - he needs to sort of move around and that's why he doesn't - he can't sit for long because of the pressure on his back but his - by moving around it does enable him to continue with his work.
PN553
But he's got work at the farm as well, hasn't he?---Yes, he - - -
PN554
So he's not stopped from working, is he?---No, he's not stopped from working.
PN555
And in terms of the situation, there would be just as many difficulties, would there not, in terms of him working on the farm as there would his working at Moore Paragon?---He knows his back very well. He knows what he can do and he knows what he can't do and on the farm he also has a lot of assistance and he also does a lot of - he - well, ordering - well, not actually ordering but asking his brother, his wife, his son, what to do.
PN556
And in terms of it, have you prepared reports in regard to his claim for serious injury under the WorkCover legislation?---I did provide a report that was for his back.
PN557
Yes. When did you provide that?---Oh, that was some time ago. A few years ago but I can't exactly remember the date, I would have to sort of look at - look at my file.
PN558
You don't recall doing any report recently?---No. Not recently.
**** DULCIE MOELLER XXN MR McKEOWN
PN559
In terms of the situation, you do understand that is in the nature of a serious injury application. That involves a person having a permanent disability, does it not?---Yes. But he - all I did was, yeah, I wrote a report and - but not for him to have time - to claim for a permanent disability or to - it is more - it was just a report summarising his history, how his back injury occurred and the effect it had on him but not for him to stop work.
PN560
Do you have a copy of that report with you?---I would have it in my file - I would have a copy.
PN561
Perhaps if you return to the witness box - - -?---Yes. Sure.
PN562
Take it with you?---Can I take all this with me?
PN563
Yes. Take whatever you want to with you?---That will be great.
PN564
Sorry, you don't need to take the whole file unless you want to?---I will just leave it here. Yes, it was October of '99.
PN565
Yes. Could I have a look at that report, Doctor?---Sure.
PN566
No. Remain there please?---Oh, sorry, yes.
PN567
Excuse me, your Honour.
PN568
Doctor, I am speaking now to your report of 25 April of this year, you indicate, and this is on page 2 of your report, that:
**** DULCIE MOELLER XXN MR McKEOWN
PN569
On many occasions when Mr Rapsey consulted me he could not sit because his back pain and he preferred to stand and supporting himself from an overhanging curtain rod.
PN570
?---Yes.
PN571
On bad days he could not walk properly and he could barely hobble or shuffle into my room.
PN572
In terms of the situation and you refer to the fact that he applied for a disability pension?---Yes.
PN573
You would not disagree, would you, Doctor, that in terms of when his physical impairment is of such a nature there that there may be other options in terms for Mr Rapsey, ie, in terms of a disability pension as opposed to continuing to - if his physical condition is of that nature, attempting to work at Moore Paragon?---Well, he had to look at all options when he - when his work was terminated and this was just an option that he - that he pursued but you mentioned with him - with Mr Rapsey walking into my room sometimes, particularly on bad days, having difficulty walking, he would limp. That is correct but he also had better days where he could walk better and the whole problem of his back was he also - it was very frustrating for him because his back fluctuated tremendously and sitting for any length of time did aggravate his back because of just the mechanics of sitting.
PN574
But his condition is such, is it not, that it is very unpredictable and it can deteriorate quite rapidly?---Yes. It is unpredictable which has been very frustrating for him but he has managed to maintain - he has managed to continue working because he could work - after going through the pain management course he was able to cope with his symptoms knowing the nature of his problem and - but he just couldn't cope with the frustrations though.
**** DULCIE MOELLER XXN MR McKEOWN
PN575
But you would agree, Doctor, that no-one could, with any certainty at all, say in regard to Mr Rapsey that he would have the capacity to work say for another two to three years?---Knowing Mr Rapsey and his - he is pretty tough and he - and he is - he is also very, very motivated and he gives of his best. He gives - normally he gives instead of 100 per cent he will give 100 - at least 105 per cent. He is very, very motivated and he is very determined and he has shown us that by gradually increasing his hours, maintaining his hours of employment, full hours, eight hours and, as I said, the - his rehabilitation provider supported him and also followed him along the whole course of his back problem.
PN576
But you would agree, Doctor, that in terms of the situation you as his professional adviser you come to a point in time where a person would have to be advised that: look, it is not in your best interests to keep on attempting when you're enduring this physical disability?---Yes. No, I disagree because even his specialist, his orthopaedic specialist, we encouraged - also encouraged him to work with his - within his limitations. He knows his limitations and so did his rehabilitation provider and we were able to alter his - his type of work so that he could actually cope with the work and he actually managed and - - -
PN577
But the - I'm sorry, Doctor?---Yes. Go on. It is okay.
PN578
I will let you finish?---Yes. So - and he has shown us that he has been able to do that and stay at work.
PN579
But the fact, is it not, that his level of disability is such that he, according to report, has expressed anxiety about even walking around on his farm, the same situation would exist at his workplace, would it not?---Yes. Working - but this was mainly at night time, walking at night time. During the day it wasn't so much of a problem but it was more at night time and in the past he would do a lot of work at, you know, dusk or early in the morning when it was still not - not - the light was a little bit dim. He would do a lot of work on the farm where he would walk on uneven ground, but now he - he does not like - he doesn't walk at night time on the farm because of his - the possibility of him tripping and jarring his back. During the day it is okay because he knows his farm very well.
**** DULCIE MOELLER XXN MR McKEOWN
PN580
But, Doctor, in terms of you refer to his permanent incapacity in your report?---Well, he does have a permanent incapacity because he cannot do the work he did originally as a storeman, he can't do any of that, but he can do other work which he has shown us he can do as - and it has also been monitored by the rehabilitation provider.
PN581
Yes. In terms of you make reference to applying for a lecturing position at the TAFE College, would you agree, Doctor, that that would be a preferable option for a person in Mr Rapsey's situation in terms of work?---Well, I don't know about "preferable option". He was looking at all options; since he was retrenched he was looking at all possible options and of course he couldn't apply for a job that involved lifting, pushing or pulling and so these were the possible options and also because he had - he had an interest in that and also he had - he had a lot of information and knowledge in that field and so therefore it was logical conclusion is to - is to actually apply for this job because he had - he had quite a bit of experience sitting in and - - -
PN582
Would you agree, Doctor, that it would be in Mr Rapsey's interests to look further afield - no, I retract that. I have got no further questions. Thank you, Doctor?---Right. Okay.
PN583
THE SENIOR DEPUTY PRESIDENT: Mr Armstrong?
PN584
MR McKEOWN: If I can hand that four page - - -
PN585
THE SENIOR DEPUTY PRESIDENT: Yes. You don't seek to tender that?
PN586
MR McKEOWN: No. No, your Honour.
PN587
THE SENIOR DEPUTY PRESIDENT: No.
**** DULCIE MOELLER XXN MR McKEOWN
PN588
MR ARMSTRONG: Nothing arising, Senior Deputy President, Dr Moeller could be excused.
PN589
THE SENIOR DEPUTY PRESIDENT: Yes. I just have a couple of matters myself.
PN590
Dr Moeller, what are your actual qualifications?---MBBS, yes.
PN591
And have you referred Mr Rapsey to a psychiatrist for a report or anything of that nature?---Yes. He did see - briefly see Dr Ed Darby who is a psychiatrist and all Dr Darby said, "You're coping well", and he just sort of recommended a change - a possible change in the medication that - primarily to help his frustration and his - and feeling down.
PN592
On the second page of your report you in the second paragraph or the first full paragraph on the top of that page say he tried alcohol but it didn't work, he reported:
PN593
It crossed my mind to take my life.
PN594
Who did he report that to?---Well, he told - he told me that subsequently, yes, when I told - when I asked him how - how everything was going. I mean I would periodically ask him how he was going and - because I see him every month to write his certificate and he would - he mentioned that pretty well towards the end but he - the last couple of times I saw him.
PN595
So when was that, sorry, "the last couple of times"?---Oh, would have been - it was well before this report. After the - oh, I know when it was, after he - with the pain management program after he had been through that, because he - I think he discussed that too during the pain management program because it involved seeing a counsellor and this is where they discussed coping skills and coping with the pain and their emotions, the effect - their emotions, the pain had on their emotions and also on their family, how that - how it affected their family. So all of this was brought up in the pain management clinic.
**** DULCIE MOELLER XXN MR McKEOWN
PN596
Was that with Dr Brett Todd-Hunter, was it?---Yes. That is correct. Yes, it is a team of workers.
PN597
In December 2000?---Yes. Yes. That is exactly right, yes, and all - and that was brought up and - and when he - when I asked him how did the pain management program go that is when we talked about all of that, yes.
PN598
So has his outlook improved since then?---His emotional - his mental outlook, it has because he knows how to cope, his coping skills have improved, but he still gets very, very frustrated because his back - because of the very nature of his back problem in that he doesn't have set symptoms every day, they fluctuate and therefore what he can do during that day will determine - depends on his back symptoms.
PN599
I see. Thank you. Anything arising out of that?
PN600
MR ARMSTRONG: No, Senior Deputy President.
PN601
MR McKEOWN: No, your Honour.
PN602
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you for your evidence, Dr Moeller, you are excused?---Yes, thank you, your Honour.
PN603
MR ARMSTRONG: The next witness, Senior Deputy President, will be Mr Rapsey.
PN604
PN605
MR ARMSTRONG: Mr Rapsey, do you need to stand?---Please. I may stand and sit if I - permission be granted. Thank you.
PN606
Mr Rapsey, you have made a supplementary witness statement in this proceeding?---That is correct.
PN607
Do you have a copy of that supplementary statement with you?---Correct.
PN608
It is a three page statement dated 17 April 2002, is that correct?---Correct.
PN609
And following the last page of the statement is a page titled: Exhibit - and referring to exhibit LR8. Do you see that?---Correct.
PN610
Behind that exhibit sheet there are three pages, being a letter dated 8 February 2001 from Moore Paragon and two pages of calculations. Do you see that?---Correct.
PN611
Are they the documents referred to as exhibit LR8 in paragraph three of your supplementary statement?---That is correct.
PN612
Now, behind those pages is another exhibit face-sheet marked: LR9. Do you see that?---Correct.
PN613
And behind that exhibit face-sheet are a bundle of pages, three pages, of profit and loss statements for L.W. & P.D. Rapsey. Do you see those?---Correct.
PN614
Are those the documents referred to as exhibit LR9, being true copies of the profit and loss statements for your business for the 2000/2001 financial year?---Correct.
**** LINDSAY WILLIAM RAPSEY XN MR ARMSTRONG
PN615
And behind those pages is another exhibit titled: LR10. Which is the profit and loss statements for 2001 and 2002 for L.W. & P.D. Rapsey. Do you see that?---That is correct.
PN616
And they are referred to in paragraph five of your witness statement as exhibit LR10, being copies of the profit and loss statements prepared by your accountant on 4 April 2002?--- Correct.
PN617
Is that correct?---Correct.
PN618
Behind those pages is another exhibit face-sheet marked: LR11?---Yes.
PN619
Behind that is a copy of your income tax return dated 2 April 2002. Is that correct?---That is correct.
PN620
And then there is the document referred to in your witness statement as exhibit LR11. In paragraph 7 of your witness statement?---Correct.
PN621
And that should be the last of the documents. Correct?---Correct.
PN622
Now, Mr Rapsey, have you had an opportunity to read your supplementary witness statement recently?---I have.
PN623
Are there any corrections you wish to make to it or additions?---There is one correction on page 2, paragraph 8, last line. Substitute $79 for $53 per week. And also in that part, it is only an addition, is that the compensation payment I have received from WorkCover have not had tax deducted so they are gross figures. They have only started in the last fortnightly payment.
**** LINDSAY WILLIAM RAPSEY XN MR ARMSTRONG
PN624
Thank you. Subject to those corrections, is your supplementary witness statement true and correct in every particular?---Correct.
PN625
Thank you.
PN626
No further questions, Senior Deputy President.
PN627
THE SENIOR DEPUTY PRESIDENT: Yes. Do you tender that statement?
PN628
MR ARMSTRONG: Yes, could I tender that.
PN629
THE SENIOR DEPUTY PRESIDENT: Yes.
EXHIBIT #AA7 AMENDED SUPPLEMENTARY STATEMENT OF LINDSAY WILLIAM RAPSEY
PN630
MR ARMSTRONG: Thank you, Senior Deputy President.
PN631
THE SENIOR DEPUTY PRESIDENT: Yes, Mr McKeown?
PN632
PN633
MR McKEOWN: Mr Rapsey, you were made aware in early February that the company is going through a restructure?---I attended a meeting on 8 February, from memory.
**** LINDSAY WILLIAM RAPSEY XXN MR McKEOWN
PN634
And you were informed by Mr McGilly about the company restructure?---Not the total restructure. Just that there was a probable group of redundancies.
PN635
Yes. And you were interviewed by Mr Griffiths. Do you recall that?---Yes. And another person.
PN636
Who was the other person?---I can't pronounce his surname but he is known as Tilly.
PN637
Tilly? And in terms of the situation, you understood, did you not, that - I will put it another way. You made application for WorkCover payments?---They had been on-going for some considerable time prior.
PN638
Well, you were on light duties, were you, at the time? You weren't on WorkCover payments, were you? This is in February of 2001?---No. I was restricted duties as per the WorkCover certificate.
PN639
Yes. But you were at work, weren't you?---That is correct.
PN640
And you weren't on WorkCover payments at that point in time?---No, not to my knowledge.
PN641
And then subsequent to that you applied for WorkCover payments?---Due to an injury, yes.
PN642
And you were advised in effect that because of the fact that you had received a retrenchment payment, you would not receive WorkCover payments?---Yes.
PN643
Do you recall receiving advice of that nature?---Yes. From my insurance company.
**** LINDSAY WILLIAM RAPSEY XXN MR McKEOWN
PN644
Yes. And that in fact the situation that you - you knew, did you not, that you were in effect challenging the very decision that had been made regarding your retrenchment?---No.
PN645
Well, you gave your solicitors instructions, did you not, to file in the Australian Industrial Relations Commission and challenge the decision to terminate you by reason of redundancy?
PN646
MR ARMSTRONG: Objection. That calls for the witness to speculate as to a number of matters of law. Now, this has been dealt with at some detail in the legal submissions exchanged between the parties. And Mr Rapsey can give evidence about filing the application in the Commission. Further details about exactly what decision it was being challenged is, with respect, calling for some speculation as to matters of law.
PN647
THE SENIOR DEPUTY PRESIDENT: All right. Yes, I think - well, take it one step at a time in any event. Let us deal with the instructions about filing the application.
PN648
MR ARMSTRONG: All right.
PN649
MR McKEOWN: Mr Rapsey, you gave instructions to your solicitors, did you not, to file an application challenging your termination by the company by reason of redundancy?---Yes.
PN650
You did. And in terms of the situation, you knew, did you not, that the reason you were not receiving WorkCover payments was because you had received a redundancy pay-out?---As per the instructions from the insurance company.
PN651
Yes. Now, in terms of the situation and it goes to your supplementary statement.
**** LINDSAY WILLIAM RAPSEY XXN MR McKEOWN
PN652
But before I go to that, your Honour, if I could have the folder of the subpoenaed documents, please. Thank you.
PN653
Mr Rapsey, in regard to your farm, I take it that has been a long, on-going enterprise, your farm?---Yes.
PN654
And in terms of the situation, you have provided a profit and loss statement in regard to L.W. & P.D. Rapsey. That is in relation to the farm?---No, it is in relation to my income and business.
PN655
Well, I take it, it is the farm or am I wrong on that?---Well, if you read it, what about the other investments that come into it? Aren't I allowed to have anything else other than work?
PN656
No, don't misunderstand my question. All I am asking you and you can clarify it, is that when you provided a profit and loss statement for L.W. & P.D. Rapsey, that is more than just the farm, is that - - - ?---It is my whole income from my - from between my wife and myself.
PN657
All right. And according to the documents in relation to the financial year 1 July to 30th 6th, there was a total income of 69,000. Is that correct? 69,66.31?---
PN658
THE SENIOR DEPUTY PRESIDENT: When was that, sorry, Mr McKeown?
PN659
MR McKEOWN: Sorry, your Honour. It is for the period profit and loss statement 1 July 2000 to 30th of the 6th 2001. It is under tab - sorry, your Honour.
PN660
MR ARMSTRONG: I think it is exhibit LR9, Senior Deputy President.
**** LINDSAY WILLIAM RAPSEY XXN MR McKEOWN
PN661
THE SENIOR DEPUTY PRESIDENT: LR9?
PN662
MR ARMSTRONG: Yes.
PN663
MR McKEOWN: I am indebted to my learned friend, if that is the case.
PN664
It might be easier for you, Mr Rapsey, if you go to LR9 of your statement?---Yes.
PN665
Is that the correct position?---That is income gross, yes.
PN666
Yes. In terms of the situation, you also have another business, do you not, involved with your son. Is that right?---Involved with my son?
PN667
Well, do you have a business called Rapsey & Son?---That is the old partnership which is gradually being wound down.
PN668
You say it is gradually being wound down?---Where my brother and myself - - -
PN669
Okay. In terms of the S2ACC, what is that reference to?---That is reference to another account which is part of L.W. & P.D.
PN670
But is that a separate source of income?---Negative. It is all combined, if you read the back statement.
PN671
So, when you provide profit and loss statement for L.W. & P.D. Rapsey - - - ?---That is already included.
**** LINDSAY WILLIAM RAPSEY XXN MR McKEOWN
PN672
So, why do you duplicate it with a second profit and loss statement showing different income?---Because that is - part of the income went into that account and the rest went into L.W. & P.D. But if you look back, you will find where that fits into the L.W. & P.D.
PN673
In terms of income?---Yes.
PN674
All right. Can you assist me where that falls into place?---Well, they are all the same account. S2 is an L.W. & P.D. account.
PN675
No, if you can assist me by showing me where the 30,000 that I have referred you to, which is under the S2ACC account, which is income, sales, cattle, falls in under - - - ?---Because it is just a continuing part of the L.W. & P.D. And it will come in there but I can't show you exactly where it has come in.
PN676
Take your time and can you show me where it - - -?---No, I can't.
PN677
Why not?---Because it has just taken into that part and all of them have married together to create the end result on L.W. and P.D. So by rights the S2 account is incorrect, it shouldn't be there. It's part of L.W. and P.D. It's just one of the - - -
PN678
But these are documents prepared by your accountants, are they not?---That's correct.
PN679
And so your accountants have prepared two separate profit and loss statements, but you're saying that's incorrect, that that figure of 30,000 should be included in the profit and loss statement for - - -?---I don't know how he does all the final details but if you look in the back, in the actual tax return, it would probably show up there as the same.
**** LINDSAY WILLIAM RAPSEY XXN MR McKEOWN
PN680
Well, in terms of - - -?---Because if I may, sir, the S2 account is just an L.W. and P.D. Rapsey account held in another credit organisation. It's exactly the same.
PN681
When you say "another credit organisation" what do you mean?---The Police Credit Co-op.
PN682
So in terms of where you have a document showing profit and loss for L.W. and P.D. Rapsey, total income 69,066, 31 cents, you are saying that in relation to the second series of documents, profit and loss for the S2ACC that there is a further total income of 30,000 that is somehow swallowed up into the 69,000?---That is correct.
PN683
Well I put it to you, Mr Rapsey, that that doesn't marry up with these documents that you've provided does it? We've got two sets of cattle sales, have we not, for the period. One shows cattle sales of 17,000, another shows cattle sales of 30,000?---That is correct and because - - -
PN684
So how can they have those two separate amounts for cattle sales?---Well I suppose if you pay them in to one account and - and not the other, and then they're married in they would be those figures wouldn't they?
PN685
Well they wouldn't because, Mr Rapsey, if as you suggest the L.W. and P.D. Rapsey is in fact concerned also with the S2ACC account, that would show a different story would it not?---No, because the - - -
PN686
MR ARMSTRONG: Sorry, objection. I'm just seeking clarification from my friend. The L.W. and P.D. Rapsey account gives a greater income figure than the S2ACC.
PN687
THE SENIOR DEPUTY PRESIDENT: Should this be discussed in front of the witness? It is a thing that is troubling me at the moment.
**** LINDSAY WILLIAM RAPSEY XXN MR McKEOWN
PN688
MR ARMSTRONG: Yes, certainly, we can deal with it in the absence of the witness.
PN689
THE SENIOR DEPUTY PRESIDENT: Yes, I think it might be better. Could you wait outside for a moment please Mr Rapsey? Shouldn't take too long.
THE WITNESS WITHDREW [2.30pm]
PN690
THE SENIOR DEPUTY PRESIDENT: Yes, sorry Mr Armstrong.
PN691
MR ARMSTRONG: Thank you, Senior Deputy President. As I understand Mr Rapsey's evidence, the S2ACC account is held I think he said with the Police Credit Co-op which reflects one of the two accounts into which some moneys are paid and that that account's figures are then married in by his accountant to the figures for L.W. and P.D. Rapsey. Now the total income - - -
PN692
THE SENIOR DEPUTY PRESIDENT: I have trouble with that because I can't see it.
PN693
MR ARMSTRONG: I beg your pardon?
PN694
THE SENIOR DEPUTY PRESIDENT: I can't see it. I mean, I'm not an expert in reading accounts, but from my reading of those accounts they show two sets of operations. I understand that they are moneys in different accounts, as the witness said, but it seems to me that on my reading of L.W. and P.D. Rapsey, and you might be able to clarify Paul, I just can't see how the S2ACC account is incorporated in there or taken into account in the overall totals.
**** LINDSAY WILLIAM RAPSEY XXN MR McKEOWN
PN695
MR ARMSTRONG: It doesn't appear to be separately itemised, Senior Deputy President, but the figure of total income for the Rapsey profit and loss statement is approximately 70,000 compared to the 30,000 for the S2ACC account which to that extent at least, is perfectly consistent with the S2ACC account.
PN696
THE SENIOR DEPUTY PRESIDENT: But that doesn't explain, he said the MBSA income is some other income from some other investment. Now you add the 50,000 into the other figures and that gives you 69,000.
PN697
MR ARMSTRONG: Yes. Excuse me a second. Perhaps Mr Rapsey needs to clarify this, but I don't think Mr Rapsey said that the MBSA income did not include the S2ACC account.
PN698
THE SENIOR DEPUTY PRESIDENT: I don't think he did.
PN699
MR ARMSTRONG: No.
PN700
THE SENIOR DEPUTY PRESIDENT: But he hasn't said that it did.
PN701
MR ARMSTRONG: He hasn't been asked.
PN702
THE SENIOR DEPUTY PRESIDENT: He said it was other investments.
PN703
MR ARMSTRONG: Yes. So, subject to that, perhaps if he was asked that it might clarify the situation.
PN704
MR McKEOWN: With respect, how does that "clarify the situation"?
**** LINDSAY WILLIAM RAPSEY XXN MR McKEOWN
PN705
THE SENIOR DEPUTY PRESIDENT: Well, no, what you're being invited to do is to clarify really what the other investments consist of. He simply said it was other investments but I don't think he went any further than that.
PN706
MR McKEOWN: Well unless I've misheard the witness, Your Honour, he also seems to be still suggesting that somehow S2ACC is subsumed into the accounts for L.W. and P.D. Rapsey.
PN707
THE SENIOR DEPUTY PRESIDENT: He did seem to suggest that but as I've said to Mr Armstrong, on my examination of those two accounts they appear to be two separate operational accounts that are not marrying with each other at all on my reading of them. But perhaps you can clarify it with the witness.
PN708
MR McKEOWN: Certainly, Your Honour.
PN709
THE SENIOR DEPUTY PRESIDENT: I think Mr Armstrong just thought there was some confusion creeping in and he rightly objected to try to clarify the confusion.
PN710
MR McKEOWN: Yes, Your Honour.
PN711
THE SENIOR DEPUTY PRESIDENT: Mr Armstrong, did you want to say anything more about it at this stage?
PN712
MR ARMSTRONG: Only this, Senior Deputy President, that Mr Rapsey has confirmed in his oral evidence that this income relates to a business which has been running for a long time, which he maintained even when he was in employment with the company, and it's our primary position that none of this is relevant.
**** LINDSAY WILLIAM RAPSEY XXN MR McKEOWN
PN713
THE SENIOR DEPUTY PRESIDENT: I understand that, I understand that. Sorry, I understand your position.
PN714
MR ARMSTRONG: Yes.
PN715
THE SENIOR DEPUTY PRESIDENT: But I don't necessarily agree with it or disagree with it at this stage.
PN716
MR ARMSTRONG: If it pleases - - -
PN717
THE SENIOR DEPUTY PRESIDENT: So we will hear the evidence and give it a go, yes. Get Mr Rapsey back in please. It may well be relevant to another aspect which I say nothing about at this stage, but I understand what you're saying.
PN718
PN719
THE SENIOR DEPUTY PRESIDENT: Thank you for that Mr Rapsey. I remind you you're still on oath. Thank you Mr McKeown.
PN720
MR McKEOWN: Thank you, Your Honour. Mr Rapsey, just going back to these two sets of accounts, can I just clarify with you, you were saying that in terms of the L.W. and P.D. Rapsey account and I will refer to that as the farm account, the other account referred to, SA - I will just find it.
PN721
THE SENIOR DEPUTY PRESIDENT: S2ACC account.
PN722
MR McKEOWN: Thank you, Your Honour. Is subsumed into the farm account, if I can put it that way. Is that your evidence?---Yes, it is part of L.W. and P.D. It - I don't know how it got there, if it has come from the accountant, why it - - -
PN723
Well see, I put to you Mr Rapsey, that that clearly cannot be the case because if you look at those two documents, if you look at the document what I referred to as the farm account L.W. and P.D. Rapsey, you've got cattle sales there of $17,335 and then in the S2ACC account you've got cattle sales of $30,208 for the same period?---If you look at it, L.W. and P.D. Rapsey, that's just a straight out profit and loss done straight off my records. And the same for the profit and loss on the other S2 account statement. Now they - when they go to the accountant, those get all married into one as L.W. and P.D. Rapsey. You've got to take them both together in conjunction, as far as I can read - - -
PN724
THE SENIOR DEPUTY PRESIDENT: Just could I clarify with you, Mr Rapsey. When you say, "you've got to take them both together in conjunction" - - -?---I've been thinking about it while I've been outside because I didn't realise - they're profit and losses as - that's from the Bank of Melbourne account and that's from the Police Credit Co-op account.
**** LINDSAY WILLIAM RAPSEY XXN MR McKEOWN
PN725
So they're - - -?---And they're married together by accountants. If - if you can work out tax better than - I can't.
PN726
Mr Rapsey, I just want to clarify something with you. So there are two lots of income there are there?---No, they're all the same account only they go into two different accounts. Because some of the costs, expenses, paid out of one and some of the expenses paid out the other, they're all the same. They go in and are combined. So these are only profit and loss statements from my level, not from the taxation level or anything else.
PN727
MR McKEOWN: Well they're not the same, are they Mr Rapsey?---No.
PN728
Because if you look under advertising, if you look under expenses, advertising, for your L.W. and P.D. account?---Hm mm.
PN729
Advertising is $84?---Hm mm.
PN730
If you look under your S2ACC account - I will retract that. If you look under the expenses of bank charges, you've got bank charges of $390.40 for your L.W. account, yet under bank charges for your S2ACC account you have $45.99?---That's correct.
PN731
Well if it is subsumed, are you saying the 45 is part of the 390?---No. They're the charges incurred on that account. So I apologise. I was reading them wrong because I was - thought the profit and loss statement was married together which it is done now. I don't know why he has pulled out the second one because it should have all been married and come out as L.W. and P.D., so I can't really answer you why.
PN732
Well, what I put to you Mr Rapsey, is that clearly you've got two separate incomes there as shown by those profit and loss statements. You've got one income which is of $69,066 and you've got a further income for the same period of $30,611?---That's correct when they marry in together.
**** LINDSAY WILLIAM RAPSEY XXN MR McKEOWN
PN733
Not, "when they marry in together". I put to you that in fact the situation is that involves an income of 99,000, when those two profit and loss statements are added together?---But I also state that when you add those two together and they go to the accountant they should come out as L.W. and P.D. Rapsey involving the lot.
PN734
Well - - -?---I can't be any more truthful in the facts.
PN735
THE SENIOR DEPUTY PRESIDENT: But you agree, do you, that the total income is the 69,000 plus the 30,000? Is that right?---Sorry, I - - -
PN736
No, that is all right. The witness has indicated by nodding, yes, that - -
PN737
THE WITNESS: Yes. What I'm saying is right.
PN738
MR McKEOWN: And in terms of the situation I asked you a question before, Mr Rapsey, you're in business with your son?---No.
PN739
Are you sure about that?---Correct.
PN740
So in terms of when there were taxation documents filed in regard to business activity statements, have you given instructions to the filing of those statements?---For R.A. Rapsey and Sons?
PN741
Yes?---As I said before, that is a business between my - which involved my parents, my brother and myself, as my brother and myself now the owners of that business.
PN742
So it is a business that you're connected with?---Yes.
**** LINDSAY WILLIAM RAPSEY XXN MR McKEOWN
PN743
Yes. And in terms of that business you've received income from that business haven't you?---That is correct.
PN744
And in fact for the quarterly return for Rapsey and Son for the period 1/7/01 to 30/9/01, you had sales of $17,426. Is that correct?---I think I can locate it.
PN745
If it is of assistance I can - I am only looking at the subpoena documents, your Honour, I can try and take out the reference on making tea?
PN746
THE WITNESS: It seems odd because I have got a double of LWPPD.
PN747
MR McKEOWN: Well I am indebted to my learned friend to provide a copy. Would you have a look at those documents there please - - -
PN748
THE SENIOR DEPUTY PRESIDENT: Are these documents not attached to his statement?
PN749
MR McKEOWN: No, your Honour, they are part of the subpoena documents.
PN750
THE SENIOR DEPUTY PRESIDENT: Yes.
PN751
THE WITNESS: These are only BAS statements.
PN752
MR McKEOWN: Yes. BAS statements are in fact statement which indicate sales by - could I just clarify, the document that you have been handed up is that headed: R.A. Rapsey and Son?---The first one is L.W.
PN753
MR McKEOWN: Yes. Could you only look at the documents in relation to R. A. Rapsey and Son, business activity statements?---Yes I have got one.
**** LINDSAY WILLIAM RAPSEY XXN MR McKEOWN
PN754
Okay. And what period does that show on that?---July to September 2001.
PN755
Yes. And what is the sales figure for that period?---17,426.
PN756
And that is in fact income coming in to you and your son - - -?---
PN757
MR ARMSTRONG: Objection. It is a sales figure, it is not an income figure. It is revenue, correct?
PN758
MR McKEOWN: In terms of sales, when you get have a sale do you get income from that sale?---After costs and expenses, yes. How else do you make a profit?
PN759
Well I am indebted, Mr Rapsey. In terms of the situation - so you were receiving an income through this operation?---And that is listed in my tax return attached to the back.
PN760
In terms of the tax return that you are referring to. Mr Rapsey, is this your tax return for the year ending 30.6.2001? I am sorry I will be more specific, it is headed: 1.7.2000 to 30.6.2001. It is at the back of your supplementary witness statement?---From the 1st of the 7th 2000 to the 30th of the 6th 2001.
PN761
Is this the document you say that records all of your income etcetera?---Yes.
PN762
From those various enterprises that I have taken you through?---Yes.
PN763
All right. Could you go to the second page of that document where you have got: Summary of Taxable Income. You have got there: Gross Salary and Wages Income $34,055. That is not correct, is it?---That is correct because you haven't taken the costs out.
**** LINDSAY WILLIAM RAPSEY XXN MR McKEOWN
PN764
Well, if you go back to your profit and loss statement for L.W. and P.D. Rapsey. You will see under the heading income?---Yes, total income $69,066.
PN765
Do you see above that: NBSA income?---Yes.
PN766
What was that income?---That is the total income, including the redundancy. Which is then adjusted at the back apparently. I don't know no more than that. I am not a tax expert.
PN767
But you would agree that it is not reflected in gross sale and wages income there?---How do you mean?
PN768
MR ARMSTRONG: No, he has just denied that.
PN769
MR McKEOWN: Well, can you explain to me in terms of where it has got gross salary and wages income, where there is allocation for the NBSA income of $50,000?---Because if you go over further, you will find it. Salary or wages, it is all listed there that I'm aware of.
PN770
THE SENIOR DEPUTY PRESIDENT: What page is that on?
PN771
MR McKEOWN: It says page 5.
PN772
Are you referring to the heading: Lindsay William Rapsey, Estimate of Income Tax for 2001?---No, Lindsay William Rapsey, form 1, Income Tax Return, Salary or Wages.
PN773
Thank you. And I am sorry, which part you are directing me to?---The Moore Paragon piece. It tells you the - the tax and then further on down there it should tell you the leave - the total payments. But you would have to ask my accountant because I can't help you any more than that.
**** LINDSAY WILLIAM RAPSEY XXN MR McKEOWN
PN774
So in terms of the - and I will refer to the business involving Rapsey and Son. You had sales of 17,426 for the period 1 July 2001 to 30.09.2001?---We are talking sales that is per the BAS statement for that?
PN775
Yes that is right?---For the respective quarter.
PN776
It is as per the BAS statement?---For that respective quarter, yes and those sales, not, not - - -
PN777
In sales?---Not tax or return.
PN778
Yes. All right, in terms of the. Do you know Mr Casperov?---Mr Casperov?
PN779
Gasperov, my apology. Do you a Mr Joe Gasperov?---Mr Gasperov was my manager within the department, so I worked with him.
PN780
And how long had you worked with him?---From when he took the position over.
PN781
Which was when?---I can't tell you that off the top of my head. No idea.
PN782
All right. And in terms of the situation in regard to your WorkCover, in fact you are now in receipt of WorkCover payments, is that correct?---That is correct now.
PN783
And in accordance with your - you state there that: the respondents WorkCover insurer refused to pay the benefits until a conciliation on 15 April, I will now be paid WorkCover weekly payments including back pay at the rate of 347.20. And that is from 29 October is it?---Correct.
**** LINDSAY WILLIAM RAPSEY XXN MR McKEOWN
PN784
And then it goes up to 260?---Correct.
PN785
MR ARMSTRONG: Down.
PN786
MR McKEOWN: I am sorry, I am indebted to my learned friend, in fact goes down to 260.
PN787
You are a member of the union?---Correct.
PN788
And the union was involved throughout the - if I can put it the retrenchment process?---Not to my knowledge.
PN789
Not to your knowledge. Well did they attend the meetings you attended?---That I can't tell you because I didn't take any notice at all who attended. They may have been there but to my observation I seen no one.
PN790
And in terms of - your interview was conducted by a Mr Griffiths, is that right?---That is correct.
PN791
And you were working the dispatch area on light duties, is that correct?---Working in dispatch on restricted duties. As per the certificate.
PN792
THE SENIOR DEPUTY PRESIDENT: When did you start in there on restricted duties - sorry Mr McKeown?---After the '99 incident when - through consultation with the rehabilitation I was put back in there as being able to perform those duties. And gradually got my works hours back from two hours to - to eight hours over a period of time.
PN793
That was from about May was it '90?---I can't tell you. No it was - yes somewhere in mid. I couldn't tell you exactly - I can't tell you exactly.
**** LINDSAY WILLIAM RAPSEY XXN MR McKEOWN
PN794
Okay. I have seen your witness statement. Yes thank you, Mr McKeown.
PN795
MR McKEOWN: Mr Rapsey, you would agree would you not that in light of the documents that have been provided and I have taken you through that you indicated in your first witness statement that - at paragraph 25 - that since you were terminated you have only had a small income from your farm. That is not necessarily the case is it?---Had a very small income from the start, but you - when - when you take the bottom figure in paragraph 8, on page 2 of the supplementary section and after submitting it all to the insurance that was - they derived that I made an earnings of $79.00 a week. And they had the same information forwarded to them as what was to you.
PN796
In terms of the situation, you had income from - or income going into two separate accounts. One is the SA22 and the other is the L.W. account?---Yes, which were all married back into L.W. and P.D. at the end.
PN797
PN798
Mr Rapsey, when you say that those two accounts are married back into the L.W. and P.D. at the end. Do you mean when you say: the end; your tax returns?---Well they should, by rights, come back into L.W. and P.D. and do a profit and loss. I will have to go home and get someone to try and figure out why they're not transferring it back. I can't explain that.
PN799
Now, as between the L.W. and P.D. and the S2ACC, your evidence, and please correct me if I am wrong, in answer to a question that his Honour asked you, is that your income for July 2000 to 2001 was both the 69,000 referred to as L.W. and P.D. income and the further 30,600 for S2ACC account, is that correct?---I will have to check back but I would say that is correct.
**** LINDSAY WILLIAM RAPSEY RXN MR ARMSTRONG
PN800
So you are, subject to you checking it, your recollection is that your income was in fact about 99,000 dollars for the 2000/2001 financial year?---Including Moore Paragon?
PN801
Yes, that is including the redundancy payment that you received from Moore Paragon and your evidence is that it is your understanding that that payment is reflected in the MBSA income?---That is correct, part of it, yes.
PN802
Thank you. Who is R.A. Rapsey, Mr Rapsey?---My father.
PN803
Right. So - - -?---He is now in a home.
PN804
Yes. And whether the other entity is referred to as R.A. Rapsey and Son, that is reference to your father?---That is correct.
PN805
And which son?---It is R.A. and Sons, it is just a misprint on there and that refers to his two sons, my brother and myself.
PN806
Thank you. Now these profit and loss statements were prepared by your accountant, is that correct?---And done on a - profit and loss, yes, they are forwarded to the accountant in that format so that he can then do the tax and check the GSTs, the BAS statements.
PN807
Mr Rapsey, do you have any accounting qualifications?---No, only from the school of hard knocks.
PN808
Are you able to explain the Australian Accounting Standards for the tax treatment of primary production income- - -?---
**** LINDSAY WILLIAM RAPSEY RXN MR ARMSTRONG
PN809
MR McKEOWN: Objection, leading, your Honour.
PN810
MR ARMSTRONG: Part of the tax statement is there is an averaging. If it pleases. Mr Rapsey, what is your understanding of the concessional tax arrangements for the tax treatment of eligible termination payments?---That I'm not - very little idea about, all I know is, read what is contained in the back of the letter forwarded to me.
PN811
And you mentioned in answer to some questions that Mr McKeown asked you that these profit and loss statements were sent to the WorkCover insurer, was that your evidence?---Yes, they subpoenaed the same forms from the accountants and I also had forwarded the same forms and the tax return.
PN812
And what was the insurer's calculation as to your income from the business?---The insurance was as I have quoted on page 2 of section 8 it was $79 per week was my income, on farm income, as per their calculations.
PN813
Thank you. My friend took an objection that I asked - to a question that I asked a moment ago. So I will re-ask it. Mr Rapsey, what is your understanding about the tax treatment of primary production income in Australia?---I don't know the full ins and outs of it and that is why I employ an accountant to do those jobs.
PN814
Thank you. No further questions, Senior Deputy President.
PN815
THE SENIOR DEPUTY PRESIDENT: Yes. I just have a couple of matters. Is your main salary and occupation that of farmer, is it, and has that always been the case? I note by the way for the record that the witness nodded his head in affirmation of what I said?---I have had a business but earlier on it was not enough for an income for three families and I had to seek alternative work which I have done. But now my parents are not involved in it, they are now out of the business totally. It is going quite satisfactory but my brother is
**** LINDSAY WILLIAM RAPSEY RXN MR ARMSTRONG
earning off farm income to supplement his income and I am just trying to survive on what I have got. And I also must make the comment that the - for the last 18 months has been excellent returns but if you go to the same saleyards today those returns will be down 25 to 40 per cent. It is that variable.
PN816
And do you have anybody working on the farm?---I have a lot of - I can't afford to set that up yet mainly because - and I have a lot of people volunteer time to help me over the harvest but my brother does most of the heavy work.
PN817
Over what, the harvest?---Yes, over harvest or any other period of time where there is excess load or my wife and my two children help as well as my brother and his family.
PN818
What crop do you have?---No crops in the sense of harvest for grain, no.
PN819
What harvest do you have?---Pasture hay, hay for fodder.
PN820
Right. And how many head of cattle are there?---My brother and I collectively are running in the vicinity of 300 cows and calves but because of the drought now that figure is decreasing.
PN821
And how much land is there?---800 acres.
PN822
And you and your wife and children live on the property, is that right?---On one of the properties, there is three parcels of land.
PN823
Right, I see. Now the other thing I wanted to ask you about is the WorkCover benefits. When did you first start receiving WorkCover benefits?---From the date given in here but that - - -
PN824
Paragraph 8 of your statement refers to it?--- - - - I did not receive them I would have to get the statement. It was not until - when I actually received them it was probably six weeks ago.
**** LINDSAY WILLIAM RAPSEY RXN MR ARMSTRONG
PN825
Yes. You say "I became eligible for WorkCover benefits on 29 October, 2001"?---Yes. That was at the end of that restriction placed by the insurance company.
PN826
I see, right?---Which is a period of 37 weeks, I think from memory - - -
PN827
To take account of the redundancy payment, 57 weeks is it?---Yes. 37 I think - - -
PN828
MR ARMSTRONG: 57 for Mr Hodge.
PN829
THE SENIOR DEPUTY PRESIDENT: I see?
PN830
THE WITNESS: I think in my case it was 37 but I stand corrected.
PN831
THE SENIOR DEPUTY PRESIDENT: Very well.
PN832
MR ARMSTRONG: I think it is correct from - - -
PN833
WITNESS: And basically I lived off that redundancy to get things back on my feet because you have to change direction once something happens you must change your direction.
PN834
THE SENIOR DEPUTY PRESIDENT: Yes?
PN835
THE WITNESS: You just can't live on nothing.
**** LINDSAY WILLIAM RAPSEY RXN MR ARMSTRONG
PN836
THE SENIOR DEPUTY PRESIDENT: And you are seeking reinstatement, is that right?---Negative.
PN837
You are not?---No.
PN838
Sorry. Anything arising out of that?
PN839
MR ARMSTRONG: No, your Honour.
PN840
PN841
MR ARMSTRONG: Senior Deputy President, the next witness that I was proposing to call was Mr Perrett. Now if it was more efficient we could perhaps deal with Mr Kimball and Mr Smith but Mr Perrett does raise this question about - - -
PN842
THE SENIOR DEPUTY PRESIDENT: You remind me in fact I had intended to deal with it immediately after Dr Moeller. I have decided, having considered the matter over the luncheon adjournment, that I will not receive the evidence of Mr Parsons, however I will receive the evidence of Mr Gasperov and, subject to what weight might be given to it, the parties may address me on that. In relation to the doctor, he says he is on long service leave. Is he out of Australia or away from the place or?
PN843
MR ARMSTRONG: We don't know at the moment, Senior Deputy President, we could take steps to find out. We were informed by his practice that he was on long service leave and we think he may be overseas but we can seek clarification of that.
PN844
THE SENIOR DEPUTY PRESIDENT: It might be appropriate to do that and also if he is overseas when he returns and when he might be available to give evidence, if he is going to be available to give evidence.
PN845
MR ARMSTRONG: If it pleases. It seems quite clear, Senior Deputy President that we will be here tomorrow as well so - - -
PN846
THE SENIOR DEPUTY PRESIDENT: I can't see us finishing today.
PN847
MR ARMSTRONG: No, so I would hope that by the time the Commission sits tomorrow morning we might be able to provide that information with some greater specificity.
PN848
THE SENIOR DEPUTY PRESIDENT: Very well. Just on my reasons about the ops I have not ruled on whether his statement will be received yet. In relation to Mr Parsons I consider his evidence or deposed material that he would give evidence about is too remote and to the extent that it may have any relevance it is significantly prejudicial to warrant its exclusion.
PN849
MR ARMSTRONG: If it pleases.
PN850
THE SENIOR DEPUTY PRESIDENT: So, do you wish to call Mr Perrett?
PN851
MR ARMSTRONG: I am just thinking, Senior Deputy President, you can probably tell from the expression of pain on my face. Perhaps we might deal with Mr Kimball and Mr Smith and that may well, subject to how long Mr McKeown is in cross-examination, that might take us through to the end of the day anyway in which case we could then deal with Mr Perrett and his evidence as a continuum tomorrow morning.
PN852
THE SENIOR DEPUTY PRESIDENT: Yes, fair enough.
PN853
MR McKEOWN: Could I just clarify something. My learned friend is not saying he is not calling him or?
PN854
THE SENIOR DEPUTY PRESIDENT: Not calling who, sorry?
PN855
MR McKEOWN: Mr Perrett.
PN856
THE SENIOR DEPUTY PRESIDENT: He is calling Mr Perrett as I understand it but not at the moment. He is calling Mr - he is going to deal with Mr Kimball and Mr - - -
PN857
MR McKEOWN: Okay, thank you, your Honour.
PN858
MR ARMSTRONG: Yes, I would anticipate we would be for the rest of the day with Mr Kimball and Mr Smith and then I would call Mr Perrett tomorrow morning. So I call Mr Arthur Smith, Senior Deputy President.
PN859
MR ARMSTRONG: Mr Smith, you have made a supplementary witness statement in this proceeding?---Yes.
PN860
Do you have a copy of that statement with you?---Yes.
PN861
Is it a statement of twelve paragraphs signed by you dated 17 April, 2002?---Yes.
PN862
At the last of those 12 paragraphs on the following page is an exhibit sheet marked AS4, do you see that?---This one?
PN863
And it attaches behind it three pages, which are a letter dated 9 February, 2001 and two pages of calculations of your redundancy pay-out?---9 February, yes there is no number on the exhibit thing.
PN864
Okay. Not next to the word "exhibit" but beneath it?---No, oh yes down there, yes sorry.
PN865
AS4, yes, thank you. Is that the bundle of documents referred to at paragraph 2 of your supplementary statement as the redundancy letter and calculations you received from the company?---Yes.
PN866
Now in paragraph 5 of your witness statement you refer to an exhibit being a copy of a print-out from Centrelink showing the payments you have received?---Yes.
PN867
If I could ask you to turn to the exhibit sheet which has AS5 written on it. Behind that exhibit sheet is there a copy of the print out to which you refer?---Yes.
**** ARTHUR WILLIAM JOHN SMITH XN MR ARMSTRONG
PN868
Mr Smith, whose handwriting is that on that copy?---It is the lady at Centrelink in February was it?
PN869
And can you tell the Commission what that writing says?---"This is a record of all Centrelink payments made to Mr Smith since 30/05/01. Mrs Smith is not receiving any payments for Mr Smith.
PN870
And it is signed by?---McKenzie I think it is, Albury Centrelink.
PN871
Thank you. Now behind that page is another exhibit face sheet, marked AS5?---AS6.
PN872
Sorry AS6, you are right. I beg your pardon. And it attaches a bundle of about 15 pages of WorkCover certificates covering the period 8 June 2001 to 5 April 2002. Is that the bundle of documents referred to a paragraph 9 of your supplementary statement as exhibit AS6?---Yes.
PN873
Thank you. Now, Mr Smith, have you had an opportunity to read your supplementary statement again recently?---Only today.
PN874
Are there any correction, additions or deletions you wish to make to it?---No, I think it is pretty all right.
PN875
Thank you. If it pleases the Commission I tender that witness statement.
EXHIBIT #AA8 SUPPLEMENTARY WITNESS STATEMENT OF ARTHUR SMITH
**** ARTHUR WILLIAM JOHN SMITH XN MR ARMSTRONG
PN876
MR ARMSTRONG: Thank you, Senior Deputy President.
PN877
Now, Mr Smith, when you ceased your employment with Moore Paragon you have given evidence that there was an exclusion period which applied to you in respect of Work Cover weekly payments?---Yes.
PN878
Do you recall how long that exclusion period was?---It was 76 weeks and they broke it back to 72 weeks I think it was.
PN879
Okay, why did they broke it back to 72 weeks?---Because they reduced it because of the holiday, my annual leave payments.
PN880
And how did that come about?---I went to conciliation with, I can't remember the Commissioner's name.
PN881
All right, Mr Smith, could I hand you a copy of this document. Have you seen that letter before, Mr Smith?---Yes.
PN882
Can you identify that letter?---Yes it came from - yes it came in the mail.
PN883
Who is it from?---It came through this - I think it cam directly from WorkCover actually.
PN884
I will tender that letter, Senior Deputy President.
PN885
THE SENIOR DEPUTY PRESIDENT: Does that appear in the - - -
PN886
MR ARMSTRONG: Yes, it is in the discovered documents, sir, as - it is about four or five pages from the back.
**** ARTHUR WILLIAM JOHN SMITH XN MR ARMSTRONG
PN887
THE SENIOR DEPUTY PRESIDENT: The last tab?
PN888
MR ARMSTRONG: I'm sorry, it is tab one, Mr Smith's summonsed documents.
PN889
THE SENIOR DEPUTY PRESIDENT: It is a letter dated 13 June 2001 isn't it?
PN890
MR SMITH: No, it is a letter dated 9 May 2001.
PN891
MR ARMSTRONG: From NRMA to the Work Cover Conciliation Service.
PN892
THE SENIOR DEPUTY PRESIDENT: What date is it did you say?
PN893
MR SMITH: 9th of the fifth.
PN894
THE SENIOR DEPUTY PRESIDENT: Yes, sorry I would have that.
PN895
MR ARMSTRONG: Thank you Senior Deputy President.
PN896
THE SENIOR DEPUTY PRESIDENT: You tender that do you. It is a letter dated 9 May 2001 to Mr Arthur Smith,is that the one?
PN897
MR ARMSTRONG: No it is - I think the one you are looking at, sir, is, two page - - -
PN898
THE SENIOR DEPUTY PRESIDENT: I see, it is the one before that isn't it?
**** ARTHUR WILLIAM JOHN SMITH XN MR ARMSTRONG
PN899
MR ARMSTRONG: It is the one before that, yes.
PN900
THE SENIOR DEPUTY PRESIDENT: Letter dated 9 May 2001, NRMA Work Cover Conciliation Service, I will mark as exhibit AA9.
EXHIBIT #AA9 LETTER TO ARTHUR SMITH DATED 09/05/2001 FROM WORKCOVER CONCILIATION SERVICE
PN901
MR ARMSTRONG: Thank you, sir. Now, Mr Smith, could I also show you the letter that you just had, Senior Deputy President. Mr Smith, have you seen that document before?---Yes.
PN902
What is it?---That is saying that they've - I can't get WorkCover payments.
PN903
Right thank you. I tender that letter as well, Senior Deputy President.
EXHIBIT #AA10 LETTER TO MR ARTHUR SMITH DATED 09/05/2001 FROM NRMA
PN904
MR ARMSTRONG: Lastly, can I also show you this document. Have you seen that document before, Mr Smith?---Yes that came in the mail as well, yes.
PN905
I'm sorry, Mr Smith?---Yes, yes it came from the conciliation.
PN906
Thank you. I tender that document as well, Senior Deputy President.
**** ARTHUR WILLIAM JOHN SMITH XN MR ARMSTRONG
PN907
THE SENIOR DEPUTY PRESIDENT: Is that a document conciliation outcome certificate?
PN908
MR ARMSTRONG: No, sir, that is the letter from NRMA dated 13 June 2001 advising of the requirements to entitlement period.
PN909
THE SENIOR DEPUTY PRESIDENT: Yes. I will mark as exhibit AA11, letter dated 13 June 2001 from NRMA to Diane Winset Conciliation Service.
EXHIBIT #AA11 LETTER DATED 13/06/2001 FROM NRMA TO DIANE WINSET, CONCILIATION SERVICE
PN910
THE SENIOR DEPUTY PRESIDENT: Did you want to tender the conciliation outcome certificate or is that not.
PN911
MR ARMSTRONG: I haven't tendered it yet, Senior Deputy President, no. No, Senior Deputy President, I don't wish to tender that one it was produced on summons but the ground it covers is sufficiently covered by the correspondence which doesn't attach the same considerations of confidentiality.
PN912
THE SENIOR DEPUTY PRESIDENT: Yes.
PN913
MR ARMSTRONG: Now, Mr Smith, prior to your termination from Moore Paragon, you had acted up at times as the plant supervisor Wodonga too, is that correct?---Yes.
PN914
In your capacity as plant supervisor, what responsibilities did you have for allocating other employees to various duties?---Well if there was a need you would - if there was someone needed on a machine or in a different area of the factory you organised where they were going and what work was being done on different machines for different customers.
**** ARTHUR WILLIAM JOHN SMITH XN MR ARMSTRONG
PN915
MR ARMSTRONG: How familiar were you, if at all, with other workers skills on various machines?---Quite familiar, you knew who could do the work and who couldn't.
PN916
THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Smith, I will have to ask you to keep your voice up please I can't hear what you are saying?---I'm sorry. You knew who could do different jobs and who was capable of doing heavy work and light work and - because we had female employees there too which couldn't some of the work that the men could do.
PN917
MR ARMSTRONG: I'm sorry, Mr Smith, I didn't catch that last bit?---They had female workers there as well and they couldn't do some of the work that the men could do right you didn't get assigned to any heavy lifting jobs or things like that.
PN918
Thank you. Senior Deputy President, may I have access to the documents summonsed from the company?
PN919
THE SENIOR DEPUTY PRESIDENT: Yes.
PN920
MR ARMSTRONG: Perhaps while we are waiting for those documents, Mr Smith, do you have - are you qualified to act as a press trades assistant?---Yes I was - well it depends what qualifications you want to have, whether it is a - I haven't got a certificate to say that I've worked on the trade machine.
PN921
Is that a position you are able to perform?---Yes.
PN922
Is it a position you are allowed to perform?---I was doing it before I was retrenched.
**** ARTHUR WILLIAM JOHN SMITH XN MR ARMSTRONG
PN923
What about finishing general hand?---Yes, I've done that.
PN924
An Oz Press operator?---I haven't actually operated the press but I have worked on the press.
PN925
Is it a job that you would require further training to do?---Yes, you would need training, yes.
PN926
How difficult is the Oz Press machine to use?---I've used it. It is a fairly simple machine.
PN927
And you were a senior operator in the CPO room in Wodonga to weren't you?---Yes.
PN928
And what about general hand positions. Are those positions you are able to perform?---I was doing general hand positions - you had to be multi-skilled to do - you had to do everything virtually.
PN929
Mr Smith, are you familiar with Mr Kimball's level of skills?---Yes.
PN930
In your experience as plant supervisor, would Mr Kimball be able to perform as a press trades assistant?---Yes, he did actually perform those duties.
PN931
I am sorry you will need to speak up, Mr Smith?---He did - he did perform those duties from time to time.
PN932
What about finishing general hand?---Yes he can do that.
**** ARTHUR WILLIAM JOHN SMITH XN MR ARMSTRONG
PN933
An Oz Press operator?---I have no doubts in my mind that Brett can operate the Oz Press.
PN934
And general hand?---Yes.
PN935
Thank you. I am sorry, Senior Deputy President.
PN936
THE SENIOR DEPUTY PRESIDENT: Mr Armstrong, we don't appear to have the documents produced on summons by the respondent. Perhaps Mr McKeown can assist.
PN937
MR McKEOWN: Always prepared to assist, your Honour. I do have one copy of the documents that my instructors provided me, your Honour. I have only got one copy if I can hand that up.
PN938
THE SENIOR DEPUTY PRESIDENT: Can I just have a look at that?
PN939
MR McKEOWN: Certainly.
PN940
THE SENIOR DEPUTY PRESIDENT: I have the impression that they were left in the library and it appears that we have come away and left them in the library as well. But they were left in the library for your instructing solicitor to copy.
PN941
MR ARMSTRONG: What appeared to have happened, Senior Deputy President, was that the Melbourne agents of my instructors went down and got the file, presumably from registry, and it seems misread it and provided me with another copy of the documents we had produced.
**** ARTHUR WILLIAM JOHN SMITH XN MR ARMSTRONG
PN942
THE SENIOR DEPUTY PRESIDENT: I see.
PN943
MR ARMSTRONG: I can't take it any higher than that but I know that I got two copies of stuff I didn't want.
PN944
THE SENIOR DEPUTY PRESIDENT: I apologise for coming away and having left them in the library.
PN945
MR ARMSTRONG: Not at all, sir.
PN946
THE SENIOR DEPUTY PRESIDENT: Would you show those to - - -
PN947
MR ARMSTRONG: Mr Smith, are you able to work as a general hand on TMMW presses?---Yes, I have been and done.
PN948
Yes. What about Mr Kimball?---Yes, he has performed those duties.
PN949
Since your employment was terminated, Mr Smith, have you sought other employment?---Yes, I have.
PN950
Have you been successful in seeking that other employment?---No, no I have not.
PN951
With whom have you sought other employment?---Heaps of - stacks of people.
PN952
Can you provide any names?---I've applied to the Council and different businesses around town. I've just been door knocking and just run around asking everyone and they just, no, nothing. Some have told me to come back later on when I get my injury fixed up, when I get rid of the certificate. .
**** ARTHUR WILLIAM JOHN SMITH XN MR ARMSTRONG
PN953
No further questions, Senior Deputy President.
PN954
THE SENIOR DEPUTY PRESIDENT: Yes thank you, Mr McKeown.
PN955
PN956
Mr Smith, you commenced in January of '78 and after - you commenced as a general hand, is that right?---Yes.
PN957
And then after a short while you were put on a trainee operator's position?---Yes.
PN958
And that involved about - you were four weeks as a trainee operator?---Yes, four to six weeks.
PN959
And then you had a further six weeks training to become an operator?---No, well after that four to six weeks I was classed as an operator at that point in time.
PN960
And in terms of the situation, leaving aside the issuing of acting and I will come to that, you still occupy, or you occupied the position of operator as at the time you were retrenched?---Yes.
PN961
And in fact you would have become an operator in 1978, is that correct?---Yes.
PN962
And that had not changed up until 2000 - - -?---I know I was lead hand for while and then I was - - -
**** ARTHUR WILLIAM JOHN SMITH XXN MR McKEOWN
PN963
But you were still an operator?---I'm still a - I'm an operator yes, when I was retrenched.
PN964
Because - see the thing is, in terms of Mr Wellardsen is it, is that how you pronounce his name, Wellardsen?---Yes, something like that, yes Trevor.
PN965
He is the production manager, isn't he?---Well he was just appointed a production manager.
PN966
Well he had been there two years had he not - - -?---Yeah but he was only working on a press before that, just a printer.
PN967
But you agree he occupied the position as production manager?---When I was retrenched.
PN968
Because he was pressed several times in terms of giving evidence to this Commission in regard to your situation, when it was put to him - yes when he was being cross-examined by Mr Armstrong, and this is at page 159 of Appeal Book Volume I, your Honour. It was put to him:
PN969
Did you tell anyone in HR that you had, I think, you would have to admit limited familiarity with what Mr Smith was able to do.
PN970
And he responds:
PN971
Arthur had worked - I have worked with Arthur as a pressman myself before I became a senior shift manager after a period of approximately 12 months. I was then Arthur's manager for a period of approximately two months before he changed his shifts.
**** ARTHUR WILLIAM JOHN SMITH XXN MR McKEOWN
PN972
And he is referring to you - it is probably a bit awkward you have not got the transcript in front of you. But then he is asked:
PN973
But despite that you did not know Mr Smith had been acting as supervisor through December last year and January.
PN974
And he states he is unaware of that situation. And then he is asked again by Mr Armstrong:
PN975
But Mr Smith had acted as supervisor?---As I've said I honestly don't know.
PN976
Now the situation, was it not, you were never appointed to a supervisory position as a permanent appointment?---Not a permanent appointment.
PN977
No. And you had in fact remained as an operator from 1978 up until 2001?---No, I was appointed a lead hand and then I went back to operating.
PN978
When you say you were appointed a leading hand, when do you say that occurred and for what period?---That was back in 90 - early 90s.
PN979
Yes, but then nothing came of that did it, you went back to being an operator?---I just wanted to go back, I went back.
PN980
You wanted to go back?---Yes, I didn't relish that position.
PN981
Sorry?---I didn't relish that position that I was in there. It was - - -
**** ARTHUR WILLIAM JOHN SMITH XXN MR McKEOWN
PN982
You didn't like a supervisory role?---I preferred to be working.
PN983
Now, you were aware at the time - before you went on leave you were aware that retrenchments were going to take place in the company, weren't you?---Yes.
PN984
And you're a member of the union?---Yes.
PN985
And you were aware that this process was going to take place in a very short time-frame were you not?---No one knew when it was going to take place really.
PN986
You attended at the meeting, Mr McGilly addressed the staff?---I attended one meeting, yes.
PN987
And in terms of that, Mr McGilly has given evidence to this Commission as follows:
PN988
On 31 January and 1 February during shift change over, I held a meeting at the Wodonga complex to advise of the company's need to reduce its staff numbers by 35.
PN989
Do you recall attending that meeting, or one of those meetings?---I attended a meeting, yes where he said - it was more than 35 though.
PN990
Sorry?---I thought the figure was a lot higher than 35, I was in the 40s.
PN991
Okay. So you were aware as at - which meeting did you attend, the 31st or 1 February?---I'm not sure which one it was.
**** ARTHUR WILLIAM JOHN SMITH XXN MR McKEOWN
PN992
What shift were you working at that time, was it split shift, afternoon?---We worked split shifts all the time.
PN993
Do you?---Yes, we had morning, afternoon and night shifts. So it would be - it was either a morning shift or an afternoon shift, because the night shift had a separate one.
PN994
All right and I think, and forgive me if I have asked you this before, you are a member of the union?---Yes.
PN995
And the union was involved all the way along with this, if you like, the procedure being embarked upon the company in terms of retrenchments?
PN996
MR ARMSTRONG: Objection.
PN997
THE SENIOR DEPUTY PRESIDENT: I'm sorry I might have misheard the question I thought he was being asked just of the union's familiarity.
PN998
MR ARMSTRONG: No he asked about his awareness.
PN999
MR McKEOWN: Yes.
PN1000
THE SENIOR DEPUTY PRESIDENT: I'm sorry I did mis-hear the question. Ask the question again, Mr McKeown.
PN1001
MR McKEOWN: You are aware in terms of the union was involved through this retrenchment process was it not, your union?---I knew they were involved in it, yes. We didn't get much feedback.
**** ARTHUR WILLIAM JOHN SMITH XXN MR McKEOWN
PN1002
And in terms of the situation, you were also aware according to Mr McGilly's evidence that:
PN1003
I explained that the company would not give a commitment to provide ongoing employment for its 250 employees, but could give a guarantee for approximately 200.
PN1004
Do you recall that being said?---Yes, or something along those lines, yes.
PN1005
So you were aware of the situation, if I can put it that way, in terms of there is going to be a review of the staff?---A reduction in the staff, yes.
PN1006
And you then went on annual leave, is that correct?---Yes, the end of January, yes, sorry end of January early February I went.
PN1007
Well you went on - can I just clarify that because you went on leave pretty well straight after the meeting did you not?---I'm not sure what the date was that I went on annual leave, it would be on the pay-slips that have been tendered.
PN1008
All right just bear with me, Mr Rapsey. I'm sorry, I do apologise, Mr Smith. In fact you were correct where you said earlier, Mr Smith, that you thought the figure was higher. In your statement you indicate that Mr McGilly indicated 46 positions and that he said "everyone would be interviewed". Now, in fact, the situation was that - I do apologise I've misquoted you there, Mr Smith, I am still looking at Rapsey's statement for some reason, sorry. I will retract that, your Honour, in terms of that question. To be more accurate, you did indicate at paragraph 15, and I will make absolutely sure, of your initial statement that you recall being told:
PN1009
If there were not enough voluntary redundancies then the company would have a look at the other options to get employees numbers down to the mentioned 200s.
**** ARTHUR WILLIAM JOHN SMITH XXN MR McKEOWN
PN1010
Now, in terms of the situation there, you commenced annual leave on 5 February did you not?---Yes, I'm not sure of the exact date that I started the annual leave.
PN1011
Right. Paragraph 18 of your statement, you indicated that you commenced on 15 February and - sorry I think I need to take some water. You commenced annual leave, according to paragraph 18 on 5 February 2001?---It was somewhere around about there, I'm not sure of the exact date.
PN1012
Now in terms of the situation, were you aware at that point in addition to interviews that skills audits were being conducted?---No, there was no mention whatsoever.
PN1013
All right. In terms of Mr Wellardsen, he was in fact your supervisor was he not?---At the end of it.
PN1014
I'm sorry February of 2001?---Yes.
PN1015
And he would what, see your work every day?---No, he was hardly ever there at the end of the time - at the end of that period, it was just a shemozzle, no one knew who was who and who was where.
PN1016
Is that because things were in a state of flux because everyone is worried about their jobs?---Well they were just - they were over at Wodonga 3 half the time and no one would know - they would come back and then they would go again.
PN1017
Now in terms of the situation, I think it is when you were away on - you come back from your holidays and you received your letter in the post indicating you had been retrenched?---Yes, I come back early actually.
**** ARTHUR WILLIAM JOHN SMITH XXN MR McKEOWN
PN1018
And that the moneys in fact had been deposited direct into your account. Is that correct?---Yes, that is right.
PN1019
And then that was offset against your mortgage?---Yes well, we didn't know the money was going in there and the money just went straight out because it was an Equity Saver account and it just - 25,000 grand out - straight out the door.
PN1020
In terms of the situation - - -
PN1021
THE SENIOR DEPUTY PRESIDENT: Just before you go on Mr McKeown. How do you mean they took that straight out? I don't understand that?---Because it is an Equity Saver account. What doesn't go out at the end of the period, goes off for your loan.
PN1022
I see, yes, right?---And the loan was for $25,000, 26,000 or something.
PN1023
Thank you Mr McKeown.
PN1024
MR McKEOWN: Thank you, your Honour.
PN1025
In terms of the payment that was made to you by the company, you actually received a net payment in the order of $54,621.46 and that is attached to the schedule of your statement, exhibit AS4. Indeed that net amount, does it not, Mr Smith, equate to a longer period. If I can put it this way - in terms of - as of February 2001 can you recall, and I know it is difficult, what you were receiving net per week approximately?---On my last pay-slips.
PN1026
Yes?---I wouldn't have a clue.
**** ARTHUR WILLIAM JOHN SMITH XXN MR McKEOWN
PN1027
All right. In terms of that net payment of $54,000, I think your statement indicates your home equity was 24 five, is that right?---Yes, something like that I think it was.
PN1028
And then you had a balance figure of what, about $30,000, would that be correct?---It was somewhere around that, yes.
PN1029
And then in relation to that you also had an application for Work Cover payments?---Yes I did. I had - I was on a Work Cover certificate at work but I was still working.
PN1030
You were still working?---I was still working.
PN1031
But you understood did you not - you gave instructions to your solicitors to challenge the company's decision to terminate your employment on the grounds of redundancy? You understood that you were challenging that decision?---Yes.
PN1032
Because you didn't believe you should have been selected for retrenchment, did you?---No, I did not.
PN1033
And in terms of that situation, you understood that because of redundancy payments, you understood that if you obtained your position back that you would be - there would be a requirement to repay those payments.
PN1034
MR ARMSTRONG: Objection. That is a question of law.
PN1035
THE SENIOR DEPUTY PRESIDENT: Well he was asking for his understanding.
**** ARTHUR WILLIAM JOHN SMITH XXN MR McKEOWN
PN1036
MR McKEOWN: You understood that didn't you?---What was the question again, sorry?
PN1037
Sorry, that essentially your application is to - you are seeking reinstatement and effectively you are arguing against the decision of your selection for retrenchment?---Yes.
PN1038
Do you understand - is it your understanding that if successful that there would be a requirement to repay the redundancy payments?---I don't know - that may be at the end of it - - -
PN1039
Because you haven't been made redundant?---I have at the moment, but I'm not reinstated yet, so I don't know what I've got to pay back until I've been reinstated. If I get reinstated.
PN1040
Okay. In terms of the situation there, you understood did you not that, and again please say so if you didn't, that that was indeed the nature of your application to this Commission. That you were stating you shouldn't have been made - you shouldn't have been retrenched?---Yes.
PN1041
In terms of the - did you give consideration to the fact well maybe I better rethink about going on leave because the company is going through all this upheaval, I know they are looking at jobs, I better hang around?---No, I didn't have any doubts about going on leave.
**** ARTHUR WILLIAM JOHN SMITH XXN MR McKEOWN
PN1042
None at all?---Well I thought if they are going to put me off they would have told me.
PN1043
But they are looking at, are they not, about one fifth of the workforce going?---If you put an application in for leave, surely they would have enough gizzards to say: look you are on the list.
PN1044
THE SENIOR DEPUTY PRESIDENT: What is gizzards, by the way?---Enough innings - inside.
PN1045
Innings. Guts is what you're saying?---Yes, I didn't want to say guts but that is it.
PN1046
MR McKEOWN: But you understood did you not that in the order of roughly about one fifth of the workforce was going to go one way or the other?---I knew someone was going to go but as I said I didn't think it was going to be me, and if it was going to be me, why didn't they tell me before I went, three days before, they would have known.
PN1047
In terms of - I was wondering your Honour could I have a look at the subpoenaed documents please?
PN1048
THE SENIOR DEPUTY PRESIDENT: Are you wanting the ones that have been exhibited?
PN1049
MR McKEOWN: No, your Honour just - - -
PN1050
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1051
MR McKEOWN: Thank you. I think at this stage, I might, actually your Honour when I - - -
**** ARTHUR WILLIAM JOHN SMITH XXN MR McKEOWN
PN1052
THE SENIOR DEPUTY PRESIDENT: I have taken out of the folder the ones that have been exhibited.
PN1053
MR McKEOWN: Thank you, your Honour. It might be easier for completeness, your Honour, if I could have a look at those exhibits.
PN1054
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1055
MR McKEOWN: Just before I go to that, Mr Smith, according to your statement you have indicated there that - paragraph 9 - you continue to suffer injuries you sustained at work and you had surgery in terms of 4 April, 2002, on crutches for a week. Those are periods that you were not in any position to attend work?---No.
PN1056
You also indicate November of 2001, you had open surgery?---Yes.
PN1057
And you were on crutches for 12 weeks?---Yes.
PN1058
In terms of the situation in regard to your Workcover, there was an aspect that you were excluded for 76 weeks, is that correct and that was reduced down?---Down to 70 weeks I think it was, 70 weeks or 72 weeks.
PN1059
All right. You also indicate in your supplementary statement there that in relation to your wife's income, in the period ending 30.6.2001, are you able to say what her income was?---I haven't got a clue, I haven't got it in front of me.
PN1060
All right. I will take it to you in terms of the - it is shown as an income of $23,327. Does that roughly accord with your - - -?---Yes, that would be about right, she is not on a very high wage.
**** ARTHUR WILLIAM JOHN SMITH XXN MR McKEOWN
PN1061
In terms of - the situation was you still had a leftover balance of 30,000 from the redundancy payment?---Yes, something like that.
PN1062
And you also have a property investment is that correct?---Yes.
PN1063
And that investment is occupied by your son?---Yes.
PN1064
In terms of that, you receive a rental from that of about $170 per week?---Yes, 160 I think it is, your Honour.
PN1065
And, indeed, you are not in a position, due to your medical restrictions to perform duties at the moment, is that correct?---That is correct.
PN1066
You have also indicated that in terms of the company, you feel that they have picked on you?---I don't believe I have ever used those words.
PN1067
Sorry?---I don't believe I used those words.
PN1068
You stated in your statement that "I feel hurt and humiliated at how the company picked" I am sorry, it is my fault, I do retract it, you do say:
PN1069
... picked me for termination. I never found out until I got a letter in the post.
PN1070
You have also indicated that you have withdrawn from some social activities of that nature. In terms of that, are you speaking more of recent times or - following the retrenchment?---Yes, yes we don't go out as much as we used to go out and we don't get to mix with - - -
**** ARTHUR WILLIAM JOHN SMITH XXN MR McKEOWN
PN1071
Do you still occupy a position with the, I think it is the Lavington Football Club?---Football club - I am on the committee there, yes.
PN1072
And do you still - because you mentioned in your first statement, well attached to your first statement is a CV in which you indicate that you are a board member, you were organising and preparing meals for 40 and 50 players every Thursday, you attend the bar. Do you still perform all of those functions?---Not actually perform those duties I just help organise the people to get - to do them.
PN1073
But you are still involved heavily in the club?---I am still involved in the club, I would go crazy if I wasn't.
PN1074
Now, the situation is, is it not, Mr Smith, that you believe the company did the wrong thing by you that you shouldn't have been selected at all?---Yes, I answered that to you before.
PN1075
Yes. And in terms of the situation, you are aware that - or I will retract it in this sense; are you aware who performed the skills audit in relation to you?---I believe it was Trevor Wellardsen, I don't know who else - - -
PN1076
Yes, that is correct. And that in terms of Mr Wellardsen, you are aware in terms of how you were ranked in terms of the skills audit?---I don't know how they worked it out, I have got no idea.
PN1077
In terms of Mr Wellardsen he was your supervisor at the time. How long had he been your supervisor?---Only a little short while.
PN1078
Thank you.
**** ARTHUR WILLIAM JOHN SMITH XXN MR McKEOWN
PN1079
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr McKeown. Re-examination Mr Armstrong?
PN1080
PN1081
MR ARMSTRONG: Mr Smith, in the proceedings before Commissioner Hingley, Mr Wellardsen gave evidence that he was your manager for a period of approximately two months before you changed shifts, is that correct?---Yes, it would be somewhere around there, yes.
PN1082
That accords with your understanding?---Yes.
PN1083
Thank you. Now, Mr Smith, in your witness statement you referred to the two items of surgery that you had, I think it was both last year or?---Three; three items of surgery.
PN1084
Three items of surgery, all of them last year?---Two last year and one this year.
PN1085
And were they all in respect of your Workcover injuries?---Yes.
PN1086
Have your treating doctors given you any prognosis as to when you will return to work?---Not yet. I'm still seeing the surgeon, I've got to go back to the surgeon, I think it is next week for another injection.
PN1087
Mr Smith, what is your feeling about whether you would be able to work under Mr Wellardsen again in future if that was necessary. You need to speak your answer, Mr Smith?---Yes, I would be able to - I think I could handle that.
**** ARTHUR WILLIAM JOHN SMITH FRXN MR ARMSTRONG
PN1088
What is your feeling about whether you would be able to return to work for the company generally?---I think I can work for the company.
PN1089
And you seek reinstatement, don't you, Mr Smith?---I do seek reinstatement, yes.
PN1090
No further questions, Senior Deputy President. Can Mr Smith be excused?
PN1091
MR McKEOWN: Your Honour, I would think to ask an additional question in relation to clarification.
PN1092
THE SENIOR DEPUTY PRESIDENT: What is that about?
PN1093
MR McKEOWN: In terms of workcover payments. I just want to clarify with - - -
PN1094
THE SENIOR DEPUTY PRESIDENT: I was going to ask about that myself, go on.
PN1095
MR McKEOWN: Mr Smith, in terms of you have given evidence about this exclusion period, what is the situation in terms of are you currently receiving WorkCover payments?---No.
PN1096
No further questions, Senior Deputy President. Can Mr Smith be excused?
PN1097
MR McKEOWN: Your Honour, I would seek to ask an additional question in relation to clarification.
PN1098
THE SENIOR DEPUTY PRESIDENT: What is it about?
**** ARTHUR WILLIAM JOHN SMITH FRXN MR ARMSTRONG
PN1099
MR McKEOWN: In terms of WorkCover payments. I just want to clarify with - - -
PN1100
THE SENIOR DEPUTY PRESIDENT: I was going to ask about that myself, go on.
PN1101
MR McKEOWN: Mr Smith, in terms of - you have given evidence about this exclusion period. What is the situation in terms of - are you currently in receipt of Workcover payments?---No.
PN1102
When are you due to receive them?---I think it is the end of June, somewhere around the end of June.
PN1103
Is that because the exclusion period still applies?---Yes.
PN1104
All right. What is the payments you anticipate to receive? Have you received any advice on that?---No, I have not.
PN1105
Thank you, your Honour.
PN1106
THE SENIOR DEPUTY PRESIDENT: The exclusion period was 70 weeks in the end, wasn't it?---Yes in the end 70 or 72 I am not sure. I think it is on the sheet.
PN1107
It was just my bad calculations, that is all right. Anything else?
PN1108
MR ARMSTRONG: No, Senior Deputy President.
**** ARTHUR WILLIAM JOHN SMITH FXXN MR McKEOWN
PN1109
THE SENIOR DEPUTY PRESIDENT: Thank you for your evidence, I do apologise, I just didn't want this to be left.
PN1110
MR McKEOWN: Mr Rapsey you indicate in paragraph 7 - - -?---Sorry, I'm Mr Smith.
PN1111
I do apologise.
PN1112
THE SENIOR DEPUTY PRESIDENT: It has been a long day, Mr McKeown.
PN1113
MR McKEOWN: It has, your Honour. I do apologise, Mr Smith. In terms of - you indicate your average gross weekly earnings prior to termination of 868.65?---Yes.
PN1114
However, in the schedule attached to your, if you like, advice on retrenchment payments, indicates a weekly rate of 613.91. Can you tell me how does the figure of 868 arrive at?---Yes, I suppose that is with your shift allowances and ..... I don't know, the company done these figures so I don't know how they arrive at these figures.
PN1115
Well, they haven't arrived at a figure of 868, I am advised in terms of you were on a base rate of 613.91. You had a shift allowance of 122.78, another allowance of 9.20 which gave a gross wage of 746.89?---I haven't got that figure there. I also received an allowance for first aid - as a first aid officer.
PN1116
Would that bring you up at - that is nearly a hundred dollars?---No, it wouldn't be a hundred dollars - I'm not sure what it was.
PN1117
THE SENIOR DEPUTY PRESIDENT: How much was your first aid allowance?---I think it was about 15, only about 15 bucks a week. Not much.
**** ARTHUR WILLIAM JOHN SMITH FXXN MR McKEOWN
PN1118
MR McKEOWN: So you are not sure about that?---No, I'm not positive. I don't know what - - -
PN1119
THE SENIOR DEPUTY PRESIDENT: How did you work out that figure of $800-odd?---I didn't.
PN1120
Sorry?---You talking to me, sorry.
PN1121
Yes?---No, I didn't work that out at all.
PN1122
MR ARMSTRONG: Senior Deputy President, could I ask you perhaps to turn to page 204 of the Appeal Book volume 2.
PN1123
THE SENIOR DEPUTY PRESIDENT: Yes.
PN1124
MR ARMSTRONG: It is actually pages 204 through to 206. Perhaps if I might ask a couple of questions, Commissioner, we might - - -
PN1125
THE SENIOR DEPUTY PRESIDENT: Yes, that might clarify.
PN1126
MR ARMSTRONG: Mr Smith, did you receive the same hourly rate for all hours worked?---No, you get overtime rates.
PN1127
What are overtime rates?---It depends whether single time, double - time and a half or double time.
**** ARTHUR WILLIAM JOHN SMITH FRXN MR ARMSTRONG
PN1128
Yes. And did you receive time and a half or double time?---Yes, over the Christmas period I was working overtime. That is probably where the difference comes in.
PN1129
Senior Deputy President, this is my only copy - can I hand to Mr Smith a copy of volume 1 of the Appeal Book.
PN1130
THE SENIOR DEPUTY PRESIDENT: Volume 2, is it not?
PN1131
MR ARMSTRONG: Sorry, I beg your pardon, it is volume 2 which is open at page 204.
PN1132
Mr Smith, can you identify the document of which that page is a copy?---Yes, that is a pay slip.
PN1133
Is that a pay slip to you?---Yes.
PN1134
And what was your pay in that week?---1493.
PN1135
Could you say that again, Mr Smith?---$1493.
PN1136
Thank you. Could I ask you to turn to page 205?---Yes.
PN1137
Are those also pay slips given to you by the company?---Yes.
PN1138
Could you tell the Commission what your pay was in those weeks?---$1769.
PN1139
I think you are looking at page 206 there aren't you?---I'm sorry, one too many.
**** ARTHUR WILLIAM JOHN SMITH FRXN MR ARMSTRONG
PN1140
Page 205?---$1949.33.
PN1141
And the next week or next fortnight I should say?---1769.81.
PN1142
And those are your fortnightly pay slips?---That is fortnightly, yes.
PN1143
Thank you. I think there is a second pay slip on that page 206?---They are both the same - on the same one. They couldn't get it all on the one.
PN1144
Thank you, Mr Smith. Could you hand that document back please.
PN1145
THE SENIOR DEPUTY PRESIDENT: Yes, okay thank you.
PN1146
MR McKEOWN: As I said your Honour, I raise it because it was just put simply as - well it refers to gross weekly earnings and, your Honour, there is only three pay slips referred to there. So in my submission - and I haven't done the arithmetics in terms of a calculator, as to how that comes out, that is all. I didn't want it just simply going in as that it is not contested.
PN1147
THE SENIOR DEPUTY PRESIDENT: I understand that but at the end of the day it will be a matter for submissions unless you want to put something to the witness about it.
PN1148
MR McKEOWN: No, your Honour. Thank you, Mr Smith.
PN1149
THE SENIOR DEPUTY PRESIDENT: Thank you for your evidence, Mr Smith, you are excused?---Thank you, your Honour.
PN1150
MR ARMSTRONG: Senior Deputy President we might be - I think Mr Smith took about 35 minutes. I don't know whether Mr McKeown anticipates he will be as long, or longer or shorter with Mr Kimball. If we could get through Mr Kimball this evening that would be good but we are in the Commission's hands.
PN1151
THE SENIOR DEPUTY PRESIDENT: Mr Kimball is also seeking reinstatement isn't he.
PN1152
MR ARMSTRONG: Yes, he is the other one seeking reinstatement, Senior Deputy President.
PN1153
THE SENIOR DEPUTY PRESIDENT: Mr McKeown, how long do you think you might be on Mr Kimball.
PN1154
MR McKEOWN: I could be a while, your Honour, in terms of going on the notes that I have.
PN1155
THE SENIOR DEPUTY PRESIDENT: Yes. The only matter that concerns me, I would be happy to sit on until 5, but as I understand it at some time between 4.30 and 5 o'clock there is an automatic security system comes on here or something, so, we can by some means have it changed so that it comes on later but I don't know that I need - I don't know that I can understand all of the technicalities associated with that. So perhaps it might be an opportune time to adjourn now and resume in the morning. Tomorrow you have Mr McGilly - - -
PN1156
MR McKEOWN: I have two witnesses now, your Honour.
PN1157
THE SENIOR DEPUTY PRESIDENT: There is an issue about whether the Doctor is going to come along - you will have instructions about that tomorrow?
PN1158
MR ARMSTRONG: Yes sir.
PN1159
THE SENIOR DEPUTY PRESIDENT: And then we have got Mr - - -
PN1160
MR ARMSTRONG: Mr Kimball and Mr Perrett.
PN1161
THE SENIOR DEPUTY PRESIDENT: And that is the only two, isn't it, from your side?
PN1162
MR ARMSTRONG: Yes, Senior Deputy President.
PN1163
THE SENIOR DEPUTY PRESIDENT: All right. If you want to start this afternoon, but we will have to finish at 4.30.
PN1164
MR McKEOWN: I would not be finished by then, your Honour.
PN1165
THE SENIOR DEPUTY PRESIDENT: Oh very well.
PN1166
MR ARMSTRONG: I think it would probably be best if we didn't adjourn with Mr Kimball in the box.
PN1167
THE SENIOR DEPUTY PRESIDENT: Yes, No, well that is what I was just thinking. All right, we will adjourn to - do you want to start earlier in the morning?
PN1168
MR McKEOWN: It won't make any difference in terms of transport arrangements for me, your Honour, I'm flexible.
PN1169
MR ARMSTRONG: I am also very flexible.
PN1170
THE SENIOR DEPUTY PRESIDENT: We will start at 10 o'clock then?
PN1171
MR ARMSTRONG: Thank you, if your Honour pleases.
PN1172
THE SENIOR DEPUTY PRESIDENT: The matter is adjourned until 10 am.
ADJOURNED UNTIL TUESDAY, 4 JUNE, 2002 [4.08pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #MP1 SUPPLEMENTARY STATEMENT OF PATRICK McGILLY DATED 15/04/2002 PN46
COREY MARCUS BAKIC, SWORN PN121
EXAMINATION-IN-CHIEF BY MR ARMSTRONG PN121
EXHIBIT #AA1 SUPPLEMENTARY STATEMENT OF COREY MARCUS BAKIC PN163
CROSS-EXAMINATION BY MR McKEOWN PN166
WITNESS WITHDREW PN291
TERRENCE KEITH HODGE, SWORN PN293
EXAMINATION-IN-CHIEF BY MR ARMSTRONG PN293
EXHIBIT #AA2 SUPPLEMENTARY WITNESS STATEMENT OF TERRENCE KEITH HODGE PN310
CROSS-EXAMINATION BY MR McKEOWN PN320
RE-EXAMINATION BY MR ARMSTRONG PN389
FURTHER CROSS-EXAMINATION BY MR McKEOWN PN405
WITNESS WITHDREW PN412
DARRELL JOHN MURPHY, SWORN PN413
EXAMINATION-IN-CHIEF BY MR ARMSTRONG PN413
EXHIBIT # AA3 SUPPLEMENTARY STATEMENT OF DARRELL MURPHY, INCORPORATING AMENDMENTS TO PARAGRAPH 4, 6 AND 10 PN438
EXHIBIT # AA4 DOCUMENT HEADED: MOORE, DATED 11/12/2001 PN462
EXHIBIT #AA5 BUSINESS ACTIVITY STATEMENT FOR MR MURPHY FOR THE PERIOD JANUARY TO MARCH 2002 PN475
CROSS-EXAMINATION BY MR McKEOWN PN478
WITNESS WITHDREW PN512
DULCIE MOELLER, SWORN PN523
EXAMINATION-IN-CHIEF BY MR ARMSTRONG PN523
EXHIBIT #AA6 STATEMENT OF LINDSAY RAPSEY DATED 25/04/2002 PN535
CROSS-EXAMINATION BY MR McKEOWN PN540
WITNESS WITHDREW PN603
LINDSAY WILLIAM RAPSEY, SWORN PN605
EXAMINATION-IN-CHIEF BY MR ARMSTRONG PN605
EXHIBIT #AA7 AMENDED SUPPLEMENTARY STATEMENT OF LINDSAY WILLIAM RAPSEY PN630
CROSS-EXAMINATION BY MR McKEOWN PN633
LINDSAY WILLIAM RAPSEY, RECALLED PN719
CROSS-EXAMINATION BY MR McKEOWN PN719
RE-EXAMINATION BY MR ARMSTRONG PN798
WITNESS WITHDREW PN841
ARTHUR WILLIAM JOHN SMITH, SWORN PN859
EXAMINATION BY MR ARMSTRONG PN859
EXHIBIT #AA8 SUPPLEMENTARY WITNESS STATEMENT OF ARTHUR SMITH PN876
EXHIBIT #AA9 LETTER TO ARTHUR SMITH DATED 09/05/2001 FROM WORKCOVER CONCILIATION SERVICE PN901
EXHIBIT #AA10 LETTER TO MR ARTHUR SMITH DATED 09/05/2001 FROM NRMA PN904
EXHIBIT #AA11 LETTER DATED 13/06/2001 FROM NRMA TO DIANE WINSET, CONCILIATION SERVICE PN910
CROSS-EXAMINATION BY MR McKEOWN PN956
FURTHER RE-EXAMINATION BY MR ARMSTRONG PN1081
FURTHER CROSS-EXAMINATION BY MR McKEOWN PN1101
FURTHER RE-EXAMINATION BY MR ARMSTRONG PN1126
WITNESS WITHDREW PN1150
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