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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT04861
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
ON 7 NOVEMBER 2001 IN U2001/1310 RE
TERMINATION OF EMPLOYMENT
MELBOURNE
1.07 PM, TUESDAY, 9 JULY 2002
Continued from 4.6.02 in Albury
THIS MATTER WAS CONDUCTED BY VIDEOCONFERENCE IN MELBOURNE
PN2329
THE SENIOR DEPUTY PRESIDENT: No change in appearances?
PN2330
MR ARMSTRONG: No change in appearances, Senior Deputy President.
PN2331
THE SENIOR DEPUTY PRESIDENT: Are you intending to lead evidence, Mr Armstrong, from your witness?
PN2332
MR ARMSTRONG: Yes, your Honour, we need to deal with the question of Dr Hayden's medical report in relation to Mr Kimball, and that is the last of the evidence that is proposed to be called, as I understand it, by either party.
PN2333
THE SENIOR DEPUTY PRESIDENT: Sorry, I didn't understand?
PN2334
MR ARMSTRONG: As I understand it, that is the last of the evidence to be called by either party.
PN2335
THE SENIOR DEPUTY PRESIDENT: Yes, yes. Very well.
PN2336
MR ARMSTRONG: Senior Deputy President, I understand that we have on screen Dr Hayden nearest the camera, as it were, Ms Collins, from Nevin Lennie and Gross in the middle, and Mr Kimball at the far end of the table, and I think a court officer. So I call Dr Rodney Hayden.
PN2337
THE SENIOR DEPUTY PRESIDENT: Yes. Dr Hayden can remain seated. Can you hear me, Dr Hayden?
PN2338
DR HAYDEN: Yes. Just - I think maybe just a little bit louder would help, please.
PN2339
PN2340
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.
PN2341
Are you going to examine Dr Hayden or is there - - -
PN2342
MR ARMSTRONG: Yes, Senior Deputy President. Sir, could I be permitted to sit?
PN2343
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2344
MR ARMSTRONG: I think the camera is calibrated from my waist.
PN2345
THE SENIOR DEPUTY PRESIDENT: Yes, remain seated, and the same goes for you, Mr McKeown as well.
PN2346
MR McKEOWN: Thank you, your Honour.
PN2347
MR ARMSTRONG: Thank you, Senior Deputy President. For your own reference, sir, do you have a copy of a document dated 7 May 2002?
PN2348
THE SENIOR DEPUTY PRESIDENT: I do, yes.
PN2349
MR ARMSTRONG: Mr Hayden, can you hear me okay?---Yes, I can.
PN2350
Mr Hayden, you have given a medical report in relation to Mr Brett Kimball in connection with this proceedings; is that correct?---That is correct.
PN2351
Dr Hayden, do you have with you a copy of that report?---I have a copy of the report dated 7 May 2002 addressed to Nevin Lennie and Gross.
**** RODNEY JAMES HAYDEN XN MR ARMSTRONG
PN2352
Thank you. And is that a report of five pages in length?---Yes, five-and-three-quarter.
PN2353
And the first words on the last page are:
PN2354
Prolonged walking or standing as described above.
PN2355
Is that correct?---That is correct.
PN2356
Dr Hayden, have you had an opportunity to read that report recently?---I have, yes.
PN2357
Does it accurately represent your opinions in connection with Mr Kimball?---It does, yes.
PN2358
Thank you.
PN2359
THE SENIOR DEPUTY PRESIDENT: Do you wish to tender that, do you?
PN2360
MR ARMSTRONG: Subject to one further question, sir.
PN2361
Dr Hayden, does it continue to represent your opinions in relation to Dr - Mr Kimball?---I believe it does.
PN2362
Thank you.
PN2363
I tender that report, Senior Deputy President.
**** RODNEY JAMES HAYDEN XN MR ARMSTRONG
PN2364
PN2365
MR ARMSTRONG: No further questions, Senior Deputy President.
PN2366
PN2367
MR McKEOWN: Thank you, your Honour.
PN2368
Dr Hayden, can you hear me?---I can.
PN2369
In relation to your report dated 7 May 2002, you have completed other reports in regard to Mr Kimball?---I don't think so. That is - as far as I know, that was the only report, although it is the only one I can remember at this stage, I mean, as long as you - - -
PN2370
Yes. Do you recall doing a report in regard to Mr Kimball's application for a disability pension?---No, but I may have.
**** RODNEY JAMES HAYDEN XXN MR McKEOWN
PN2371
And if there is an indication, doctor, that indeed in a response by an officer of the Department referring to a report by you dated - just bear with me, doctor, I will be more accurate with the date of it. In relation to a Centrelink decision on a disability pension application by Mr Kimball, it refers to a series of documents, one of the documents being Treating Doctor's Report, Dr Hayden, 7 May 2001. Does that assist you in your recollection?---Normally I would keep a copy of that, I don't know what happened here, but - I mean, if I - if you - I would probably have done that. I can't -I'm just seeing if I have got a copy of it here, but normally I would keep a copy of that, but some reason I can't seem to find it here.
PN2372
You were requested to bring your file in regard to this hearing today?---I have brought my file, but I - I am looking for that copy. I normally make a - - -
PN2373
That is all right, take your time, doctor?---I normally make a photostat copy of those documents, but I haven't - I haven't got a copy of the Centrelink document and I normally would have a copy of that, but - so I haven't got a copy here with me, but - - -
PN2374
Can you recall what you put in regard to that particular report?---Not really, no, not if I haven't got the document with me.
PN2375
Can you recall you were requested, I take it, to - well, I will retract that. In terms of the - you understood the application by Mr Kimball to the Department was for a disability pension, did you?---Yes.
PN2376
And at that point in time did you believe his medical condition was such that he would be not in a position to work full time?---At that time, if he didn't have the job that he had with Moore Business Systems, I didn't believe he would be able to get a job and work in any other job, given his work skills and his past history of work. He had a job - I think at that time he was still even employable, about to be unemployed from Moore Business Systems, and that would probably be the reason that this cropped up, because we couldn't see where - who would employ him given his condition if he lost that job.
**** RODNEY JAMES HAYDEN XXN MR McKEOWN
PN2377
And, doctor, in terms of the situation, is it fair to say that - and I will go back and I am talking about - in regard to - there is correspondence from you dated 17 July 2000. If you like, you can check your file, you might be able to find it there, and it is addressed Moore, PO Box 158. If it assists you, doctor - - -?---Yes, that was a return to work letter offer.
PN2378
Yes. Do you have that correspondence?---Okay. I have - I have a return to work offer dated - there is no date on it - but it looks like 15 July - yes, 15 July 2000.
PN2379
I am sorry, doctor, what is that document referring to?---It is an offer of suitable employment.
PN2380
Yes. Have you found your letter of 17 July?---No.
PN2381
If you could just bear with me and I will read it to you, doctor. It states as follows:
PN2382
Dear Sir, Re your amendment to the suitable offer of employment dated 6 September 1999. As you know, I have already stated my reasons why Brett Kimball is unable to do night shift as documented in the full IRS report sent to Dave Elkington on 26 May 2000.
PN2383
You state your opinion hasn't changed. Now, doctor, in terms of the report that you refer to, which is actually a report by Fleur Kipper to Mr Elkington of 26 May, do you recall that report?---Yes, yes.
PN2384
Do you have a copy of that on your file there?---I do, yes.
PN2385
All right. Could I take you to page 3 of that report under the heading, Recommendations?---Yes.
**** RODNEY JAMES HAYDEN XXN MR McKEOWN
PN2386
You will see the third dot point:
PN2387
Mr Kimball is not to perform three rotating shifts. He is to remain on the current two rotating shifts.
PN2388
Was that your recommendation, doctor?---It says - I think the problem was that he wasn't to perform shift work because of the difficulty he had sleeping. But I think he was doing afternoon shift, but he didn't want to do the three rotating shifts which completely disturbed his sleep, because you are working at - in any one week you can work a morning shift, an afternoon shift or a night shift, a combination of both - of all of them.
PN2389
Did you understand, doctor, that the position he was in required a three-rotating-shift?---No, well, this was to try - this was to give him an offer of suitable work, and a three-rotating-shift was not an offer of suitable work, so that was not - it was never a negotiable point because he - of the difficulty he was already having sleeping, which is mentioned in my report of 7 May 2002.
PN2390
And in your report, doctor, I take it there is an indication at the end of the report that you dictated it but you hadn't read it, but you have had an opportunity since that time to read the report and you are still content with its contents?---The report of 7 May 2002?
PN2391
Yes?---Am I still happy with the content?
PN2392
Yes?---Yes.
PN2393
In terms of the - the situation, is it not, doctor, that based on your report there in which you indicate, and this is at page 4 of your report at the bottom of the page - - -
**** RODNEY JAMES HAYDEN XXN MR McKEOWN
PN2394
MS COLLINS: Can I interrupt just for a minute. We have lost vision. I wonder if you can still see us? I am sorry to interrupt. Do you have vision of us?
PN2395
MR McKEOWN: Yes, we have still got vision.
PN2396
MS COLLINS: We have just lost vision of you. I will see if that can be sorted out.
PN2397
THE SENIOR DEPUTY PRESIDENT: We will go off the record for a while.
OFF THE RECORD
PN2398
THE SENIOR DEPUTY PRESIDENT: Yes, continue please, Mr McKeown.
PN2399
MR McKEOWN: Thank you, your Honour.
PN2400
Doctor, I was taking you to page 4 of your report, at the bottom of that page, the sentence beginning:
PN2401
These problems with his lumbar spine are causing him to have chronic low back pain which is aggravated by work and physical activity such as bending, lifting, long walking or standing as described above.
PN2402
And then further on page 5 of your report, doctor, you indicate that:
PN2403
He is permanently and totally incapacitated for performing pre-injury duties. That is, the heavy work he performed up until 14 May 1998.
**** RODNEY JAMES HAYDEN XXN MR McKEOWN
PN2404
The situation, doctor, was that in your opinion, he was not able to work three rotating shifts?---No, he couldn't work the three rotating shifts because of sleep problems.
PN2405
And doctor, there was a position advertised in regard to a general hand at the company, and for the benefit of his Honour and my learned friend, I am referring to exhibit BK15. That particular position advertised, Dr Hayden, was for a general hand and Mr Kimball in his statement indicated he could apply for the position, but if you could just bear with me, doctor, the position reads as follows:
PN2406
The successful applicant will be required to work a three-shift rotating roster.
PN2407
In your medical opinion, could Mr Kimball fulfil such a position requiring a three-rotating roster?---No, he wouldn't have been able to do the three-shift rotating roster. In all the job offers, that was never - that I saw, that was not a condition of his job that he do that. In fact, that was a specific - - -
PN2408
And having said that, doctor, would it be your medical opinion therefore that if Mr Kimball said to you, I want to apply for this position, you would have said, no?---I would have suggested that he apply for it but say he wouldn't be able to do the two rotating shifts.
[1.30pm]
PN2409
THE SENIOR DEPUTY PRESIDENT: I am sorry, I will have to ask you to repeat that, Dr Hayden, I couldn't hear what you were saying?---I would have suggested if it was important that he apply for that position, then I would have suggested that he apply for it but advise him that he couldn't perform - he wouldn't be able to work in a three rotating shift capacity. He could do a two rotating shift but not a three.
**** RODNEY JAMES HAYDEN XXN MR McKEOWN
PN2410
MR McKEOWN: And, doctor, at the end of your report you indicate:
PN2411
His future therefore is uncertain and his industrial capacity has certainly been reduced and he now suffers a permanent industrial loss of 40 per cent.
PN2412
Where you refer to permanent industrial loss are you referring to his physical capacity to perform the duties of the position he had with Moore Business Systems?---I am referring to - comparing him to his condition and the duties he could perform prior to his injury which is the sort of heavy work that he used to do described in the early part of that report. There is no way in the world he could manage any of that sort of work, the very heavy work he did.
PN2413
The situation, is it not, Dr Hayden, that you would still have restrictions on Mr Kimball in terms of no heavy lifting above 10 kg?---Yes, that would be correct.
PN2414
And no - - -?---Mr Kimball was - had become a fairly skilled worker in operating the printing machines over the 17 years he worked there and he was actually, for some time prior to leaving, he was actually teaching and instructing other people in the - to learn the operation of these machines. And that job that he had for three years where I think he only - the last job he had where I think he only missed about one or two days in the whole three years as a result of his back, he could do that job. It wasn't perfect but he could do it and he enjoyed doing it because he, sort of, most of his friends were at work and he would have been in pain whether he was at work or at home.
PN2415
But you understood, did you not, Dr Hayden, that the position in question was a three rotating shift position?---There were many positions he was offered and many offers of work and the ones that I agreed to didn't have a rotating shift. The advertisement you have picked up, I don't know anything about that - - -
**** RODNEY JAMES HAYDEN XXN MR McKEOWN
PN2416
Well, it is an advertisement, doctor, that was provided by Mr Kimball and was attached to his witness statement?---Well, I don't know anything about that job or whether he applied for it or whether he didn't. I know he was employed by the company so, presumably, he didn't have to apply for a job with the company because he already had a job with them and what I saw was a number of job offers, offers of suitable employment which did not include the rotating shift - the three rotating shifts.
PN2417
Doctor, is it your opinion that he would never be able to go back to a three rotating shift - - -?---Yes - - -
PN2418
- - - based on your - - -?---Well, if he couldn't do it now he wouldn't be able to do it in the future.
PN2419
Thank you, doctor. Thank you, doctor, for your time?---Thank you.
PN2420
THE SENIOR DEPUTY PRESIDENT: No further questions?
PN2421
MR McKEOWN: No, your Honour. Yes, Mr Armstrong.
PN2422
MR ARMSTRONG: Thank you, sir. Nothing arising, Senior Deputy President.
PN2423
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
PN2424
Dr Hayden, could I just clarify your qualifications, please? Could you tell me what they are?---My qualifications are a Bachelor of Medicine and Bachelor of Surgery, Monash University. A Fellow of the Australian College of Rural and Remote Medicine.
**** RODNEY JAMES HAYDEN XXN MR McKEOWN
PN2425
What is that, sorry?---It is the Fellow of the Australian College of Rural and Remote Medicine.
PN2426
I see?---And a Diploma of the Royal College of Obstetricians and Gynaecologists.
PN2427
Yes. Do you have any qualifications at all in psychiatry?---No.
PN2428
No. The anti-depressants that were prescribed for Mr Kimball are prescribed by you or on the recommendation of some other practitioner?---No, they were prescribed by myself.
PN2429
Yes. When you spoke about Mr Kimball being capable of returning to work or working at his pre-injury capacity, what period were you talking about as the injury period?---Okay. I was referring to the work that he did in about the first - probably the first 12 years, 14 years that he worked at Moore Business Systems, but particularly the early work. The first - probably the first - yes, the first 14 years or so when he worked at Moore Business - the work then was very, very heavy.
PN2430
Yes?---The last three years his work has not been heavy at all.
PN2431
So that sort of takes it up to that injury that is recorded in your report on page 2 in the second paragraph referring to 14 May, is that right?---He had a number of injuries but that might have been the one where - that was when he appeared to hurt his back again. He had a number of injuries to his back and sort of from that time onwards - I think he changed jobs in May 2000.
**** RODNEY JAMES HAYDEN XXN MR McKEOWN
PN2432
Yes?---And about - from that time - or from the light duties he was on - I think he went on light duties in 1998 and the job he was doing - I think he was doing similar work for the last three years but particularly the last few years he was operating - he was quite skilled at operating and running printing machines and this was not heavy work although it was constant work and he was also good at teaching other people to operate these machines. And I think during the last six months particularly he had learned how to run a roto-slitter which is a machine that slits labels and makes them up into small rolls of labels. And he was able to operate that machine very well and he found operating that machine didn't require heavy lifting and he was actually teaching other people to operate that machine so that they could do the other shifts. And he was able to manage that work reasonably well but his back situation is that whether he was just at home wandering around he is probably still going to have pain in the back. He would still have that pain in the back whether he is at work or at home. And he had a - because he has worked there so long a lot of his social life and contacts were at work and he actually really wanted to stay and work and he enjoyed, you know, the mateship and companionship of the people he had known over the last 17 years and they were people he used to socialise with outside work. So he didn't want to go home and do nothing, he wanted to stay working if he possibly could. And even if he got some pain he was prepared to put up with the pain to continue working if he could because he, sort of, found that, you know, what else was he going to do? And he knew quite well that he would never get a job anywhere else with his back the way it was.
PN2433
So in your opinion is there any danger of aggravation of his injuries in the workplace and if so what would be the nature of the work that is likely to cause such aggravation?---There would be if he was required to engage in bending, lifting and repetitive bending, but in the work that - the way he described - particularly the work - the work over the last three years but particularly the work over the last six months that he was doing, then there would be no more danger of an aggravation of the injury than just doing, you know, normal things around the house that you do like picking things up off the floor and things like that. What would really damage his back would be heavy, repetitive bending and lifting or even just repetitive bending and lifting but he wasn't doing that in his last job. And although he always had a bit of a sore back and, you know, at the end of some days it might ache, his back would have ached even if he had been home, just the condition of his back.
**** RODNEY JAMES HAYDEN XXN MR McKEOWN
PN2434
PN2435
MR McKEOWN: Yes, your Honour, just one matter that I would like to put to Dr Hayden.
PN2436
Dr Hayden, Mr McGilly - and I probably should seek clarification, your Honour, because I was the one who sought confidentiality on the transcript?---Would you speak up a little bit, please?
PN2437
Just bear with me, Dr Hayden, I am speaking to his Honour at the moment. Your Honour, in terms of I was going to refer to paragraph number 1773, I would say that would have been covered by the confidentiality, however, I would seek to be able to put it because it goes to what Mr McGilly said in terms of the nature of the work involving the roto-slitter machine.
PN2438
THE SENIOR DEPUTY PRESIDENT: Whose confidentiality is it?
PN2439
MR McKEOWN: Well, we were seeking it and I would seek to dispense - or I would seek that - - -
PN2440
THE SENIOR DEPUTY PRESIDENT: Well, you can put it then if you want to waive it for the purpose of putting the question - - -
PN2441
MR McKEOWN: Putting this question, I would seek to, your Honour.
PN2442
Dr Hayden, Mr McGilly gave evidence to the Commission in terms of the following. He was asked the question:
**** RODNEY JAMES HAYDEN FXXN MR McKEOWN
PN2443
You were also present in court when he gave evidence to the effect of lifting restriction. Firstly, based on that, would Mr Kimball be able to perform the duties on the machines that he referred to?
PN2444
And the response by Mr McGilly was as follows:
PN2445
I would. I was rather quite surprised to hearing his comments because when he had advised thereon on the witness stand that he had a lifting restriction of, I think it was 15 kilos, I - we - our rolls that come off the label presses are upwards of 1500 pounds and you would have to man-handle these rolls in order to get them over - to - on a run position. You also - when he was talking about slitting and putting the small rolls into boxes it was maybe alluding to the fact that they were small boxes?---Well, they are small boxes. These boxes weigh up to 30 and 40 pounds a piece and also when you are talking about repetitive motions and lifting and moving you have to lift these boxes off of the front of the roto-slitter and virtually turn and put them onto a pallet and that is a repetitive motion and these boxes fill up quite quickly.
PN2446
That was Mr McGilly's evidence to the Commission. Does that affect your opinion, doctor, in terms of the description of duties associated with the roto-slitter that might be required to be performed by Mr Kimball?---May I ask who Mr McGilly is?
PN2447
He is the Director of Manufacturing at Moore Paragon?---Thank you. Well, I mentioned that Mr Kimball was teaching other people to operate this machine and other machines, as I understand it. If he was teaching them to operate there would be, presumably, two people there and, presumably, they would do any of the heavy work that was required. With regard to the lifting in general it depends on what it is, the height. If you are lifting from the ground up, even a small weight, that is going to present a problem. If you are lifting at waist height and just carting - carrying it across and putting it down at waist height that is also - that is much easier and much less likely to cause a problem. I have not seen the machine operate but I know Mr Kimball felt that he could do
**** RODNEY JAMES HAYDEN FXXN MR McKEOWN
that work, whatever was required and it didn't particularly aggravate his back. And the fact is that he did that work, he worked on that machine for six months and whether - and he wouldn't have - and he didn't require any time off during that time, he didn't require any additional treatment and he didn't particularly say - or he said the opposite, he said that he could manage that work. So he not only - whether anyone says anything about it the fact is that he was able to manage that work and had no time off while he was doing it.
PN2448
However, doctor, that was always contingent, was it not, on the fact that he is doing two shifts only?---Yes. It was never - always contingent on that fact. He was never to do the three rotating shifts as he would have had sleeping problems.
PN2449
Thank you, doctor. Thank you, your Honour.
PN2450
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Armstrong.
PN2451
MR ARMSTRONG: Nothing arising, Senior Deputy President.
PN2452
PN2453
THE SENIOR DEPUTY PRESIDENT: Is there anything else we need from the video link?
PN2454
MR ARMSTRONG: I don't think there is anything we need from the video link, Senior Deputy President, but could I request that it be kept on for the purposes of Mr Kimball and Ms Collins being able to participate?
PN2455
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Armstrong.
PN2456
MR ARMSTRONG: Forgive me, Senior Deputy President, I am coming down with a cold. There is only one further matter which I would like to deal with your Honour and that is to draw your Honour's attention to a very recent decision of Hely J in the Federal Court dealing with the Black v Brimbank City Council decision. I have provided a copy of the decision to my learned friend and I am in a position to provide one to the Commission as well. The decision is Reynolds v Southcorp Wines Proprietary Limited, by curious coincidence, a decision of Hely J on 6 June 2002. It is media mutual. Reference is 2002 SCA 712. I can hand up a copy to you, sir.
PN2457
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN2458
MR ARMSTRONG: This, of course, is a decision which was handed down since the Commission rose on the last occasion and at paragraphs 48 and following Hely J deals with the Black v Brimbank City Council line of authorities. And the paragraph to which I would like to particularly draw the Commission's attention is paragraph 64 of the decision where Hely J finds that in the circumstances of that case, had the contract run its course the employer would have made the employee redundant in due course anyway and therefore the matter was to be distinguished from the factual situation in Black v Brimbank City Council. That continues through paragraph 65.
PN2459
And for the reasons which I advanced on the last occasion, sir, we would say that that is the analogous situation to the situation in the present case in relation to making any of the applicants redundant at any time. Subject to that additional point, sir, and any questions that you have we have certainly made extensive submissions and I would not wish to traverse unnecessarily any ground - - -
PN2460
THE SENIOR DEPUTY PRESIDENT: No, I would just clarify what you just said then. As I understand it, is that the evidence bears out a finding that the applicants in this case would have been made redundant in any event at some stage?
PN2461
MR ARMSTRONG: No, sir. The evidence which is before the Commission supports the conclusion that the only reason that the applicants might have been terminated in the foreseeable future would, itself, have been redundancies.
PN2462
THE SENIOR DEPUTY PRESIDENT: Or retirement?
PN2463
MR ARMSTRONG: Retirement some years down the track further, yes. I think the eldest of the applicants, sir, is 53 so retirement was a very distant prospect.
PN2464
THE SENIOR DEPUTY PRESIDENT: Yes, all right. Thank you, Mr Armstrong. Mr McKeown, did you wish to say any more?
PN2465
MR McKEOWN: Your Honour, only just briefly. I haven't had an opportunity to read this Reynolds v Southcorp decision, however, I note from, even on looking at the front sheet there it refers to matters involving the Trade Practices Act and things of that nature. I would say, your Honour, it is as per what I said on the last occasion that in my submission it shouldn't be assumed, because the matter has been over an extended period and that there has been no redundancies at Wodonga, I should say, there have been redundancies elsewhere within the company organisation.
PN2466
It cannot be assumed that had the situation arisen Commissioner Hingley found in favour of the applicants that there wouldn't have been then a review of positions with this company. And in my submission it would be unsafe to draw any conclusion that it is taken for granted that they would still be employed at this point in time. What Mr McGilly said in his evidence was to the extent that if that had have occurred there would have been a further review. And so in my submission, your Honour, that is one of the, if you like, the dangerous aspects of trying to put a period or a time frame on the anticipated employment period as defined in Ellawalla v The Australian Postal Corporation case. Aside from that, your Honour, there is no further submissions on behalf of the respondent.
PN2467
THE SENIOR DEPUTY PRESIDENT: Just one point. You say that if Commissioner Hingley had have found in favour of the applicants and they had been returned there would have been a further review.
PN2468
MR McKEOWN: Yes, your Honour.
PN2469
THE SENIOR DEPUTY PRESIDENT: But do you say the evidence suggests that would be the same outcome now? Well, there are only two people seeking reinstatement now, so would that still be the same?
PN2470
MR McKEOWN: Yes, your Honour. I put it in terms of - I would probably put it the other way, your Honour, that it should not be just assumed that the employment would have continued. That there couldn't have been an intervening event. That is about as high as I put it. I should say - I should have stood, your Honour, but I was used to the previous - - -
PN2471
THE SENIOR DEPUTY PRESIDENT: No, that is all right because the people in Albury are watching as well. Sorry, is that all?
PN2472
MR McKEOWN: Yes, your Honour.
PN2473
THE SENIOR DEPUTY PRESIDENT: Yes, thanks, Mr McKeown. Well, I thank you both for your very helpful submissions and hopefully - well, I will endeavour to get something out by the end of this week but I can't promise it at this stage. Much depends on the rest of the matters that I have on this week. But if it is not out at the end of this week it will be out early in August. Thank you.
ADJOURNED INDEFINITELY [1.57pm]
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