C2002/4519, Transcript of Proceedings [2002] AIRCTrans 4848 (3 December 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS


O/N VT795

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS
SENIOR DEPUTY PRESIDENT KAUFMAN
COMMISSIONER CRIBB

C2002/4519

APPEAL UNDER SECTION 45 OF THE ACT
BY CLAYCOM PTY LTD TRADING AS CITY PARK
HOTEL AGAINST THE DECISION [PR921339]
AND ORDER [PR921341] OF COMMISSIONER WHELAN
AT MELBOURNE ON 14 AUGUST 2002 IN U2001/6043

MELBOURNE

10.18 AM, TUESDAY, 19 NOVEMBER 2002

PN1

MS M. DALY: I appear on behalf of the appellant.

PN2

MR A. DIRCKS: I seek leave to appear for the respondent.

PN3

SENIOR DEPUTY PRESIDENT WILLIAMS: Ms Daly, you appear as counsel, do you?

PN4

MS DALY: I do.

PN5

SENIOR DEPUTY PRESIDENT WILLIAMS: Yes. Well, leave is granted in both cases.

PN6

MS DALY: Thank you.

PN7

SENIOR DEPUTY PRESIDENT WILLIAMS: I can indicate to you that the members of the Bench have read all the material in relation to this matter including the submissions that have been filed. So we don't need to have detailed submissions from the parties in this matter. It is more if you wish to speak to those submissions and add anything that you seek to do.

PN8

MS DALY: Yes. If I could just address the Commission briefly, your Honour. Our submissions are that we have put forward a basis for the Commission finding that there is seriously arguable - appealable error on the part of the Commission at first instance and we say that those matters do relate to taking irrelevant considerations into account, not taking relevant considerations into account and, in particular, the admission into evidence of the hearsay evidence of Mr Stephen Ogle which formed, we say, a substantial basis for Commissioner Whelan's decision.

PN9

We do say also that in the way that the Commissioner construed the facts and the way in which she articulated those in her decision does indicate that she was affected by bias in that she attributed too much weight to the lack of involvement of the employer in the processes of the Commission. We say that is not relevant to the question of whether there is a valid reason for termination. We also - - -

PN10

SENIOR DEPUTY PRESIDENT KAUFMAN: How does that constitute a bias, Ms Daly? What sort of bias is there?

PN11

MS DALY: Your Honour, we say that that demonstrates that the Commissioner was not being impartial - - -

PN12

SENIOR DEPUTY PRESIDENT KAUFMAN: How?

PN13

MS DALY: In that she took that as evidence that spoke in favour of the applicant's case.

PN14

SENIOR DEPUTY PRESIDENT KAUFMAN: Assuming for a moment that, for the purposes of this discussion, she was wrong in that, how is that bias? Why is not just an error? Is it an ostensible bias, an apprehended bias, an apparent bias, a real bias? Have you got any authorities to - - -

PN15

MS DALY: It is apprehended bias, your Worship. Well, can I - - -

PN16

SENIOR DEPUTY PRESIDENT KAUFMAN: Do you have any authorities - - -

PN17

MS DALY: I am sorry, your Honour. Can I say to your Honour that it is both apprehended bias and possibly bias, possible actual bias on the part of the Commission that - - -

PN18

SENIOR DEPUTY PRESIDENT KAUFMAN: Well, speaking for myself, you will need to spell that out for me. I just don't follow.

PN19

MS DALY: Your Honour, can I say that the greater - we say the greater part of the actual bias is to be found in the assistance given by the Commissioner to the applicant in putting questions to the applicant in relation to whether she was advised, for instance, that they needed to appoint somebody with accounting qualifications.

PN20

SENIOR DEPUTY PRESIDENT KAUFMAN: How do you say that is bias?

PN21

MS DALY: We say that that is unnecessary assistance offered to the applicant, your Honour.

PN22

SENIOR DEPUTY PRESIDENT KAUFMAN: Do you have an authority to support that proposition?

PN23

MS DALY: I don't, your Honour.

PN24

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes.

PN25

MS DALY: If I may continue, your Honour, the Commission. We say that there was evidence before the Commissioner of the operational requirements of the business and we say that that evidence came from the applicant. We note that in the applicant's response to the appeal it is put that those - that the information or the evidence provided by the applicant is not information as to the operational requirements of the business. In our submission, it must be evidence in relation to the operational requirements of the business, given that it is in relation to the financial problems that the business was experiencing.

PN26

So that is of necessity in relation to the operational requirements of the business.

PN27

SENIOR DEPUTY PRESIDENT WILLIAMS: The sum total of that evidence was, wasn't it, that the respondent - the employer had suffered financial losses?

PN28

MS DALY: That is correct, your Honour, and also that Miss Nivaga, the applicant, accepted that there were reasons for a restructure given that, I think in her own words she put it, it was a whole new hotel structure and that she - - -

PN29

SENIOR DEPUTY PRESIDENT WILLIAMS: But she never agreed, did she, that the restructure involved her termination - termination of employment?

PN30

MS DALY: She didn't ever give evidence to that effect, your Honour, no.

PN31

SENIOR DEPUTY PRESIDENT WILLIAMS: And that was never discussed with her until the last minute or never mentioned until the last minute.

PN32

MS DALY: That was her evidence, your Honour, yes.

PN33

SENIOR DEPUTY PRESIDENT WILLIAMS: I am sorry, that was the evidence, yes.

PN34

MS DALY: Yes, yes. We say that the evidence was before the Commission that Mr Ogle's resignation occurred subsequent to the termination of Miss Nivaga's employment and that, therefore, any subsequent employment was a replacement of Mr Ogle rather than of Miss Nivaga.

PN35

SENIOR DEPUTY PRESIDENT KAUFMAN: Other than the fact that his resignation or termination of employment took place after that of the applicant and what evidence is there to support that?

PN36

MS DALY: As your Honour will have noted, the employer did not put forward evidence in this matter.

PN37

SENIOR DEPUTY PRESIDENT KAUFMAN: Yes. So where is the evidence to support the contention that you have just asked us to accept?

PN38

MS DALY: Well, the evidence is, your Honour, that Mr Ogle resigned subsequent to the termination of Miss Nivaga's employment. It is, therefore, at least chronological - at least in chronological terms, your Honour, it is apparent that somebody was replaced. That person conducted at least some of - undertook at least some of the duties that Miss Nivaga undertook in the course of her employment. And so at least in one sense he was replaced rather than Miss Nivaga. That is as high as I can put it, your Honour.

PN39

Those are my submissions, if the Commission pleases.

PN40

SENIOR DEPUTY PRESIDENT WILLIAMS: Mr Dircks, the Bench doesn't need to hear from you. We will just adjourn briefly.

SHORT ADJOURNMENT [10.26am]

RESUMED [10.30am]

PN41

SENIOR DEPUTY PRESIDENT WILLIAMS: We can deal with this matter immediately. We have considered the written submissions that have been filed by the parties in accordance with the directions of the Full Bench and the submissions that have been made today on behalf of the appellant.

PN42

We note that in relation to the proceedings at first instance the appellant neither filed any material pursuant to the Commission's directions nor sought to lead any evidence at the hearing before Commissioner Whelan. In proceedings such as were before the Commissioner, where an employer wishes to rely upon a defence that there was a valid reason for the termination of employment in question, that employer bears a responsibility to bring evidence before the Commission which would satisfy the Commission that the reason for the termination is sound, defensible or well founded.

PN43

We consider that on the evidence before her, it was open to the Commissioner to conclude that there was no valid reason for the termination of the respondent's employment. We are not satisfied that any other grounds of appeal have been made out by the appellant. In particular, we can find nothing in the manner in which the Commissioner conducted the proceedings before her which would indicate that she demonstrated bias, either actual or apprehended.

PN44

Further, in the circumstances, we consider that the amount ultimately fixed by the Commissioner as the amount to be ordered in lieu of reinstatement was appropriate. There are no grounds which would justify a grant of leave to appeal in this matter. We therefore refuse leave to appeal. The Commission is adjourned.

ADJOURNED INDEFINITELY [10.32am]