C2003/162, Transcript of Proceedings [2003] AIRCTrans 2733 (30 June 2003)

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TRANSCRIPT OF PROCEEDINGS

O/N WT0417

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT POLITES

C2003/162

APPEAL UNDER SECTION 45 OF THE ACT BY
AMAROO VILLAGE AGAINST THE ORDER MADE BY COMMISSIONER O'CONNOR ISSUED ON 21 MAY 2003
AT PERTH IN U2002/5704 [PR931902] RE
APPLICATION FOR RELIEF OF TERMINATION
OF EMPLOYMENT

PERTH

3.30 PM, TUESDAY, 17 JUNE 2003

PN1

MR D. JONES: I am from the Chamber of Commerce appearing for the applicant in the proceedings.

PN2

MS S. NORTHCOTT: I appear for the respondent.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Jones?

PN4

MR JONES: Thankfully your Honour, that these proceedings might be made shorter because my friend has informed me that the respondent to the appeal, Ms Kathleen Patricia Ryan, has agreed to the making of a stay order, on the condition that the moneys won by her in the award granted by Commissioner O'Connor on 21 May 2003, be paid into an interest bearing account, which shall be done forthwith. If the Commission, as presently constituted wanted me to explain further, I think briefly stated the grounds of appeal set out basically two grounds, that we believe the Commission was in error of various sessions of the Act in failing to take account of critical evidence, which we assert should have had a different effect on the decision had it have been considered.

PN5

Even - and the second ground of appeal is that even if the Commission was correct in determining the applicant's dismissal was unfair, he erred in assessing compensation under section 170CH of the Act. And there is two explanations for that. Firstly, we say that the Commissioner, having determined that there was a valid reason for termination, failed to take into account the respondent's serious criticism of the respondent's conduct as an employee and the evidence, which is quoted in the 4.2 paragraphs, indicated that the employer saw her conduct as being serious and that dismissal would have occurred.

PN6

And we say that that was not taken into account, and in finding that the respondent would have been employed for the further 12 months is not consistent with the evidence that was before him. So, that we assess that the quantum of the assessment of compensation was in error of section 170CH. Now, for the purpose of the application this afternoon - it is for the stay order. We believe that there is sufficient grounds to believe that the appeal has a good chance of success. We believe that the balance of convenience lies with the appellant, or the applicant in this matter, because on the information of my friend this afternoon, if the money were paid to the respondent, the appellant - sorry the respondent, given her financial circumstances, would have great difficulty in repaying it if the appeal was successful.

PN7

And on the basis of - and the information, and the authority of the Coal and Allied Operations Pty Ltd decision, print PR909182, where there is doubt as to the capacity of a party to repay moneys if the appeal was successful, then it is good reason to grant a stay, provided that the - not only the status quo, but her right to the money is preserved in an interest bearing bank account in case the appeal fails. And we have given that undertaking and my friend has accepted that and therefore there is no objection to the stay order being granted.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Jones. Ms Northcott did you have anything to add?

PN9

MS S. NORTHCOTT: Only briefly sir, if I may. What Mr Jones has said is correct to the extent that we consent to the stay order. Clearly we don't concede the grounds of the appeal obviously your Honour, but yes our member is in very severe financial circumstances and has advised me that if she were paid the money she would not be able to repay it. In light of that sir, I would simply, if at all possible, ask that this matter be brought on for hearing at your earliest convenience sir, given that there has only been two - and relatively narrow grounds of appeal raised before you. And our member is in quite severe financial pressure. But we don't object to the stay order being granted in the terms sought.

PN10

THE SENIOR DEPUTY PRESIDENT: Thank you Ms Northcott. Well, in this matter, by consent, I am prepared to grant an order staying the operation of the decision in order of Commissioner O'Connor, made in Perth on 21 May 2003 in print number PR931690. The order will be made on condition that the appellant pay into a bank account the amount of the award made in the order of Commissioner O'Connor. That bank account to be interest bearing. And it will be released to the relevant party upon the result of this decision becoming known. I will reserve liberty to apply and I will reduce that order to writing in due course. Ms Northcott, I can't at this stage give you an indication, but I will convey what you have said to the President.

PN11

MS S NORTHCOTT: Thank you sir.

ADJOURNED INDEFINITELY [3.37pm]