C2003/695, Transcript of Proceedings [2003] AIRCTrans 578 (21 February 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS

O/N VT10201
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2003/695

APPEAL UNDER SECTION 45 OF THE ACT
BY HOWE & CO PTY LTD AGAINST THE
ORDER [PR926247] OF DEPUTY PRESIDENT
IVES ON 24 DECEMBER 2002 IN U2002/1376
RE TERMINATION OF EMPLOYMENT

MELBOURNE

2.06 PM, WEDNESDAY, 5 FEBRUARY 2003

PN1

MR J. D'ABACO: I seek leave to appear for the appellant.

PN2

MR SERRA: I seek leave to appear for the respondent worker.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr D'Abaco?

PN4

MR D'ABACO: As the Commission will be aware, your Honour, this is an application pursuant to section 45(4) of the Act seeking the operation of a stay of the order issued by Ives DP on 24 December of last year. As the Commission I have no doubt is aware from having perused the decision the facts are relatively straightforward and I will summarise in a very, very brief form. Essentially the respondent, Mr Dimovski, was employed by the appellant and his employment was terminated on 25 February last year due to, it was alleged, theft and he was dismissed summarily at that time.

PN5

Following on from the termination of his employment Mr Dimovski lodged an application for relief pursuant to 170CE of the Act and that application came on for hearing before Ives DP last year. After some two and a half days hearing time Ives DP upheld Mr Dimovski's application and found that the dismissal was harsh, unjust and unreasonable. In particular he issued orders which had two effects. The first aspect of the order was that Mr Dimovski be reinstated to his pre-dismissal employment and secondly, he ordered that the appellant pay compensation amounting to the sum from the date of dismissal on 21 February last year until the date when the reinstatement would take effect.

PN6

And it is against those two aspects of the order against which - in relation to which this stay is sought. I seek leave, your Honour, to file two documents. One is an outline of the argument which I will be putting to you today - and I will be addressing you briefly in relation to that - and the second is an affidavit of Anthony Chiodo who is the Human Resources representative of the appellant. Your Honour may wish to have a brief look at the affidavit. Particularly you will note it is fairly brief in compass and it essentially refers to certain facts which I will take your Honour to in relation to the issue of balance of convenience. Mr Serra has copies of these documents as well, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. Mr D'Abaco, the parts of the order that you seek stayed are again which parts?

PN8

MR D'ABACO: The parts, your Honour - if your Honour has a copy of the order - will be paragraph number one which is that part of the order requiring the appellant to reinstate Mr Dimovski to his pre-dismissal position.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MR D'ABACO: And paragraph number three, that part of the order which requires that the appellant pay forthwith to Mr Dimovski the amount of compensation representing lost wages from date of dismissal to the date of reinstatement taking effect. Paragraphs two and paragraphs five are really in the way of machinery provisions I think, your Honour, which just give effect to paragraphs one and three respectively.

PN11

THE SENIOR DEPUTY PRESIDENT: As might be paragraph four.

PN12

MR D'ABACO: Yes.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, I have read the affidavit.

PN14

MR D'ABACO: Thank you, your Honour. Your Honour, if I can just take you briefly to the outline of argument on behalf of the appellant. The general principles which are applied by the Commission in matters such as these are relatively well settled. Your Honour will be aware that an application for the stay of an order must establish two things. The first is that there is an arguable case, ie a case which has some reasonable prospects of success in respect of both the questions of leave to appeal as well as the substantive merits of the appeal itself.

PN15

The second issue on which your Honour must be satisfied is that the balance of convenience favours the granting of a stay. And your Honour will see at paragraph one of the outline I have extracted the relevant authorities. Turning to the first aspect, your Honour, and that is the question of an arguable case. It is submitted by the appellant that for the grounds which are set out in the notice of appeal dated 17 January 2003 that the appellant does indeed have a reasonable prospect of succeeding on the merits of the appeal and it will be submitted when the appeal is ultimately heard that Ives DP fell into error on a number of different aspects - in a number of different aspects in his decision.

PN16

The first major error - ground of error - which will be submitted his Honour fell into was that his Honour, with due respect, committed a number of errors of law in applying the relevant provisions of the Act to the application before him. And your Honour will see that at paragraph 2(a) of the outline I have extracted those particular paragraphs of the notice of appeal which it is submitted go to that particular area of attack. Perhaps if I can indicate, your Honour, the three substantive grounds on which it is submitted his Honour fell into error. Does your Honour have a copy of Ives DPs decision to hand?

PN17

THE SENIOR DEPUTY PRESIDENT: Yes.

PN18

MR D'ABACO: If I could take your Honour please to paragraph 69 of his Honour's decision. Your Honour will see that at paragraph 69 Ives DP finds that there was a valid reason for the dismissal but he says that if he was to find that - that if that finding is incorrect he is satisfied that the termination was harsh, unjust or unreasonable for other factors which are set out in section 170CG(3) of the Act. Now, in my submission, there is an arguable case here, your Honour that the manner in which his Honour construed the provisions of 170CG(3) was incorrect.

PN19

And I put that submission, your Honour, on the basis of which the wording of that particular section is set out. The opening words of section 170CG(3) provide that in determining for the purposes of the arbitration whether a termination was harsh, unjust or unreasonable the Commission must have regard to - and there are then paragraphs - sub-paragraph A, through to E, which set out a variety of factors which the Commission must have regard to in determining whether or not a dismissal was indeed unfair.

PN20

Now, in my submission, your Honour, the error which his Honour has fallen into, as illustrated by paragraph 69, is that rather than taking those different factors, whether there was a valid reason for the dismissal, whether the employee was notified of the reason for the dismissal and those other aspects of procedural fairness, rather than looking at each factor, considering the factors, and then coming with a global finding, what his Honour has done is instead focus in upon a particular individual sub-paragraph, in this case whether there was a valid reason for the dismissal.

PN21

And upon finding that there was a valid reason - or that there was not a valid reason for the dismissal, I am sorry - determining that in those circumstances, the dismissal itself was unfair. And it is submitted, your Honour, that in using that methodology or that method of analysis, his Honour did fall into error. And we submit that that is an arguable case, certainly for the purpose of this stay application, on which the appellant does have a reasonable prospect of success when the appeal comes on for hearing.

PN22

The second major ground, your Honour, in which it is submitted that his Honour fell into error was when his Honour turned his mind to the issue of remedy. If I can take your Honour to paragraph 82 of his Honour's decision, and in particular, the sentence commencing on the third line of paragraph 82, where his Honour says:

PN23

In the circumstances (and notwithstanding Mr Dimovski's apparent failure to attempt to mitigate his losses until late August 2002) I do not believe that effective mitigation of loss is open to Mr Dimovski.

PN24

Now, your Honour, that conclusion, we submit, is subject to two principal lines of attack. The first is that if reference is made to section 170CH(2)(d) of the Act, and as your Honour will be aware, there they are those provisions dealing with the factors to be taken into account in determining what is an appropriate remedy. 170CH(2)(d) provides that one of the factors to be taken into account is the efforts of the employee, if any, to mitigate the loss suffered by the employee as a result of the termination.

PN25

Now Deputy President Ives, it is submitted, found that there was no effort by the respondent worker to mitigate his losses, but regardless of that, he proceeded to order reinstatement. The second line of attack upon his Honour's conclusion, your Honour, is that Mr Dimovski - I am sorry - Deputy President Ives at paragraph 82 states:

PN26

I do not believe that effective mitigation of loss is open to Mr Dimovski.

PN27

And that is criticised, your Honour, on the basis that it will be submitted there was no evidentiary foundation in terms of the evidence adduced before his Honour for him to come up with that particular finding of fact. So it is submitted that the principles which were applied by his Honour in determining remedy were not the correct principles, that he failed to have proper regard for the issue of mitigation. And this goes, your Honour, if not to the principal remedy granted, that of reinstatement, it certainly goes to the other aspect of the order, i.e the order that compensation be paid from the date of dismissal to the date of reinstatement.

PN28

Because if the principle is that an employee is required to mitigate his losses, and that is a principle both at common law and also, it is submitted, the decision of this Commission, and there is a factual finding by his Honour, that this particular worker didn't do so, it cannot be open for his Honour to disregard that and notwithstanding that, order compensation for the entire period. That may be appropriate if in fact the worker had made efforts to mitigate his losses, and that was that they were unsuccessful, but that was not the case in this particular instance.

PN29

The, your Honour, are the two principal attacks from a legal perspective on the veracity of his Honour's decision. Sub-paragraphs 2B, C and D, relate to factual findings. And although I do concede, your Honour, that normally on an appeal an appeal bench will extend to the Commission member at first instance a certain degree of discretion and latitude in determination of facts, the submission will be made that on the totality of the evidence, and what we say are the numerous errors of fact, his Honour, with respect, made so many errors of fact that he ultimately fell into error and on that basis the decision ought not be permitted to stand.

PN30

In terms of the test which would be applied by a Full Bench at the hearing of the appeal, it will be incumbent upon the appellant to satisfy the Full Bench that the order and decision of Deputy President Ives was one which was not reasonably available to him on the evidence, and the argument which was advanced at the hearing of the application before him. And in that regard we will be, of course, applying the requisite tests as enunciated in House v R, Poon Bros and Asahi Diamond, again all principles which are well known to the Commission.

PN31

That relates, your Honour, to the arguable case in respect of the merits of the appeal. The next aspect, of course, is leave to appeal. My submission is that leave to appeal in the circumstances of this case would be granted on two bases. First, we say, that the notice of appeal, in particular those factors which I outlined to you a few moments ago, raise serious meaning, or serious issues about the scope and meaning of provisions of the Act, and in particular sections 170CE, dealing with the fairness or otherwise of the dismissal. 170CG, having regard to the factors to be taken into account in determining the issue of unfairness, and thirdly, 170CH, dealing with the issue of remedy.

PN32

We say that the analysis adopted by his Honour at first instance was incorrect, and that the Full Bench on appeal will have an opportunity to, in our submission, hopefully, apply or enunciate and apply the principles correctly to the facts which pertained in this particular matter. And the issue of questions of scope and meaning of provisions of the Act have in the past been regarded as ones of sufficient important such that in the public interest leave ought to be granted, and at paragraph 4A of the outline of submissions, I have referred to an authority in that regard. Similarly, and it is really a corollary of that first point, your Honour, we say that the appeal does raise issues of general application and general principle, and on that basis we believe that there is an arguable case that leave to appeal would be granted.

PN33

That deals with the first aspect of the stay application, your Honour, the issue of arguable case. The next aspect, of course, is the balance of convenience. Now, there is some controversy in the authorities of the Commission in relation to this regard. My submission is that the principal point from which the Commission ought commence is that where an order which is the subject of an appeal requires a party to take some action to that party's detriment, then the balance of convenience is usually in favour of maintaining the status quo.

PN34

In this particular case, your Honour, the status quo before the order of Deputy President Ives was that Mr Dimovski was not in the employ of the appellant. The effect of his order would obviously be one which would expose it to detriment, i.e to reinstate him to his former employment and as is deposed to by Mr Chiodo in his affidavit, to pay him an amount something in the vicinity of $19,000. So we say that on that basis, given that a detriment would be incurred by the appellant in the event that the stay is not granted, the principle would favour the status quo remain and that the stay be granted.

PN35

However, so as not to mislead the Commission, I do indicate in paragraph 6 of my outline that there is some controversy about that principle. Vice President Ross in two decision, one where he constituted the Commission himself in the matter of Coal and Allied, and in another where he presided over a full bench in the Edwards v Telstra Corporation, expressed some misgivings about that principle, and indicated that he thought it may well not be applicable to applications for stays arising out of unfair dismissal applications in the hearing of those.

PN36

What I have to say in relation to those particular comments, your Honour, is that firstly, the principle as enunciated in Tovey v Telstra - they were decisions of Senior Deputy President Marsh and Senior Deputy President Polites respectively, did deal with 170CE applications. So their Honours certainly in those particular decisions had no misgivings in applying the principle to applications for stays of this sort of nature. The second point I would make, your Honour, is that the comments by Vice President Ross in Coal and Allied and by the Full Bench in Edwards were, strictly speaking, obiter dicta. In both decision, notwithstanding the misgivings which were expressed by the Commission as constituted, in one case the application for a stay was granted, and in the other the application for a stay which had been granted by Senior Deputy President Polites at first instance was upheld on appeal.

PN37

In the event that your Honour was not to accept that as being the appropriate principle to apply, the principle in my submission would that which is akin to what occurs in applications for interim or interlocutory injunctions in the courts, i.e the Commission would be required to conduct an exercise of determining who would suffer the greater harm. Would the appellant suffer the greater harm in the event that its application for a stay was refused? Or would the respondent suffer greater harm if in fact the application for a stay was granted.

PN38

Now in respect of the harm which would be suffered by the applicant, in the event that the stay were not to be granted, your Honour will see in the affidavit material presented - the affidavit of Mr Chiodo, that the afternoon shift on which Mr Dimovski worked prior to his dismissal has in very recent times been the subject of a downturn in work. Seven of the permanent employees have been required to move on to a morning shift, and given the drop in production requirements outlined by Mr Chiodo in his affidavit, he expresses the opinion that there will in the near future be required to be redundancies of employees on the afternoon shift. And we say - - -

PN39

THE SENIOR DEPUTY PRESIDENT: How many employees on the afternoon shift?

PN40

MR D'ABACO: I am sorry?

PN41

THE SENIOR DEPUTY PRESIDENT: How many employees on the afternoon shift?

PN42

MR D'ABACO: If your Honour will just bear with me? In the vicinity of 35 to 40 employees, your Honour.

PN43

THE SENIOR DEPUTY PRESIDENT: So there is 35 to 40, and seven of those - - -

PN44

MR D'ABACO: Seven of those permanent employees have been redeployed onto the morning shift, which I think, from - approximately 120 to 140 employees.

PN45

THE SENIOR DEPUTY PRESIDENT: Right. And the respondent in this matter, Mr Dimovski was on the afternoon shift?

PN46

MR D'ABACO: Yes.

PN47

THE SENIOR DEPUTY PRESIDENT: And is there any casuals on the afternoon shift?

PN48

MR D'ABACO: Not any longer. My instructions are, your Honour, that it is complemented strictly by permanent employees.

PN49

THE SENIOR DEPUTY PRESIDENT: And is there any more casuals on the morning shift?

PN50

MR D'ABACO: Not as of Monday of this week, your Honour.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes. I should ask, Mr D'Abaco, Mr Serra whether he wishes to object to the affidavit or wishes to cross-examine Mr Chiodo.

PN52

MR SERRA: Neither, your Honour. I have had a chance to read it this morning, and I am grateful to my learned friend for that. I don't object to it being taken into evidence. I would have some submissions as to its weight, but I have got no objection to that.

PN53

THE SENIOR DEPUTY PRESIDENT: Very well.

EXHIBIT #D1 AFFIDAVIT OF ANTHONY CHIODO

PN54

THE SENIOR DEPUTY PRESIDENT: Yes, Mr D'Abaco.

PN55

MR D'ABACO: The second issue in relation to the balance of convenience in the event that the Commission were to adopt what I would call the older test, your Honour, is the matter of the payment of the monies, some $19,000. It is submitted by the appellant that issues would have to be raised about the manner or the viability of indeed recovering that money from the respondent in the event that the appeal was ultimately to succeed, and in the decision of Edwards v Telstra Corporation, and in particular in Senior Deputy President Polites' decision, his Honour noted that the question of recovering any monies paid out in terms of an order of compensation was a relevant and appropriate order for the Commission to take into account at the time of determining the question of a stay - or not - the question of staying the operation of the particular order. Can I - - -

PN56

THE SENIOR DEPUTY PRESIDENT: That issue can be overcome though, can it not by a requirement that the money be place din some sort of trust account?

PN57

MR D'ABACO: Yes, and I was going to lead to that point, your Honour.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes.

PN59

MR D'ABACO: I do have instructions to indicate to the Commission and also to my learned friend, which I have done previously, that in the event that the stay order were to be granted, the appellant would pay that amount into an interest bearing account to be held on Mr Dimovski's behalf pending the determination of the appeal. If the Commission pleases, those are the submissions for the appellant.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Serra.

PN61

MR SERRA: If your Honour pleases. I am obliged to my learned friend for his initial statement of the law in relation to what the appellant must establish, and with respect I would adopt those. It is my submission that the appellant must establish not only an arguable case for leave to appeal, but secondly an arguable case as to the merits of the appeal, and I also agree with my learned friend that the onus is also on the appellant in relation to the balance of convenience.

PN62

The matter which I wish to mention initially was to explain why my client is not here. I did expect him to be here. The reason he is not is because, by coincidence, his application for a serious injury determination is listed before the County Court this week. It was listed for Monday, but it seems to have been rolled from day to day. And I spoke to my instructor some one hour ago, and my client had to be back at the County Court at 2.15 and he may be giving evidence this afternoon. Were it not for that, he would have been here today.

PN63

If I could turn your Honour to the first element of what the appellant must establish, and that is that the Full Bench will grant leave to appeal. Now, in my submission, notwithstanding the various contentions raised by my learned friend, there is nothing in the decision, and there is nothing in the evidence which raises a matter of particular notoriety or importance. It is my submission that the decision made by Deputy President Ives was based largely on findings of fact, and the decision was based on the evidence over some two and a half days.

PN64

Now it is, in my submission, most unlikely that the Full Bench will seek to overturn findings of fact in the absence of the opportunity to hear the evidence of the parties and to observe their demeanour. Every witness whose evidence was admitted was cross-examined, and some at some great length. In addition, your Honour, there was one particularly important issue, and that was the extent, or the lack of - I withdraw that - the extent of my client's understanding of the English language. That was an important finding of his Honour, and it was a matter which only his Honour, having observed my client in the witness box for several hours, is in a position to make an accurate judgment on.

PN65

it would be my respectful submission that the Full Bench is unlikely to say, notwithstanding what the learned Deputy President decided, our view is different as to the respondent's knowledge of English. There was a significant issue in terms of the intention of my client, when he took the drum. There is no doubt that he took the drum. It has never been in contention. The fundamental issue or one of the fundamental issues has always been, what was his intention? Was it dishonest? Was it a matter of neglect? Was it a matter of innocent and quite understandable mistake? The finding of fact that his Honour made - perhaps more appropriately put - the lack of a finding that there was any dishonesty on the part of my client, is a finding which was made very much on the basis of the presentation of my client in the witness box, the presentation of the other parties, the other witnesses.

PN66

These are findings of fact. They don't raise issues of serious importance in the law. There is nothing in this decision that would lead to any type of flow-one effect. It is not a case where there have been 10 or 20 or 30 people terminated for the same reason. There is only one person been terminated. The effect of the decision applies to one person only. It is not contended by the appellant that the business of the appellant, the viability of the appellant will be in any way undermined by the implementation of the order. There is no comparison with a situation of a small employer with perhaps three or four workers, whose very existence could be threatened by the return to work of one person.

PN67

It is not contended that there has been any denial of natural justice in the decision at first instance. There is no contention, as I understand it, that the Commission exceeded its jurisdiction. There are none of those issues which would raise a serious question which would persuade the Commission to grant leave to appeal. There is nothing, in my submission in the decision which breaks new legal ground or extends the operation of the Act. The requirement in section 45(4) - sorry, your Honour. In section 45(2), it is:

PN68

The Full Bench shall grant leave to appeal if the matter is of such importance that in the public interest leave should be granted.

PN69

It is not said that the Full Bench may only grant leave in those circumstances. I am not putting that. But nonetheless it is my submission that notwithstanding the terms of that section the Full Bench is, in this case, unlikely to be persuaded that the matter is one of such importance that leave should be granted.

[2.36pm]

PN70

The fact that the appellant has appealed against numerous findings of his Honour, in my submission, that alone does not lead to any conclusion that the matter is of significant importance. Even if the appellant succeeds on that threshold issue and leave to appeal is granted it is my submission that the appeal on its face lacks merit and that is largely for the reasons which I previously advanced. That is to say that the appeal disputes the decision largely on the basis of findings of fact and conclusions drawn from those. There is nothing in the appeal, in my submission, in the grounds of appeal which give any indication that there has been some apparent and obvious error on the part of the Deputy President.

PN71

Even if your Honour were to find that the appellant has an arguable case for leave and on the merits, in my submission the balance of convenience lies very much in favour of allowing this order to take its natural effect. Firstly, it cannot be doubted that Mr Dimovski has suffered a serious loss of earnings since his termination in February 2002. His sworn evidence was that he has not obtained employment since and his evidence at paragraphs 161 and 165 was that not only had he obtained employment but that the benefits he was receiving by way of Newstart or some similar allowance were in the order of only $26 a week by reason of the fact that his wife is obtaining some income.

PN72

There was some fairly lengthy cross-examination of my client by my learned friend as to his, that is, my client's activities in selling drums at the market and the allegation, I believe, was that my client was making a substantial amount of money. But the evidence that my client gave on oath was that if he made a profit it was minimal. I would ask the Commission to conclude, then, that any stay of this order would impose a serious burden on my client. On the other hand, notwithstanding the affidavit which has been filed today, there is no evidence before the Commission that implementing the order or allowing the order to be implemented would, in any way, threaten the viability of the employer.

PN73

Now, it is true that the affidavit refers to a decrease in business. That doesn't change the fact that the employer is a very substantial company. It doesn't change the fact that there are numerous employees. It is true that my client had been employed on the afternoon shift for some time but my instructions are that he would present no objection whatsoever to being employed on the morning shift. The only objection he would have would be if that led to a lowering of his earnings given the reduction in the shift allowance.

PN74

But if it were the case that the employer simply has no work available in the afternoon and the employer said to the worker: We can employ you in the morning; provided that he did not suffer a reduction in wages compared to his previous job my client is ready, willing and able to start that work immediately. In terms of reinstatement, again, it is my submission that there cannot be any serious dispute that immediate reinstatement would be of great benefit to my client. He hasn't worked since 25 February 2002. His evidence, as accepted by the Commission, was that in his particular circumstances he is most unlikely to find any work.

PN75

It is not in dispute that he has got a serious shoulder injury. It is not in dispute that he has only ever done manual work. It is not in dispute that he has worked for Howe Leather for some 11 years with the black mark, or the apparent black mark hanging over him of being terminated by a long-term employer and having an injury. It is not hard, in my submission, to reach the conclusion as Deputy President Ives did that this man is most unlikely to find work.

PN76

It is my submission that even with the evidence of Mr Chiodo today the worst effect on the appellant would be a minor inconvenience. The evidence - I am not disputing the accuracy of what Mr Chiodo says but by way of comparison on 18 October, when Mr Sacoulas gave evidence, his evidence at that stage was that a few people had been employed just a few weeks ago. I am not saying that either of those people are not entirely accurate. The point I am seeking to make is that circumstances do change and there is nothing in the affidavit presented today which rules out the possibility that things will change for the better.

PN77

In any event it is my submission that it is appropriate for your Honour to consider and to give great weight to the enormous disparity between the parties. My client, a man with an injury, a man who has never earned substantial wages, has been deprived of his wages for almost a year in comparison with a company whose turnover is not in evidence but can hardly be doubted to be a very substantial turnover.

PN78

The fact is that prior to his termination the employer did find suitable duties for Mr Dimovski and there was no complaint made in evidence that Mr Dimovski was unreliable, lazy, lacked punctuality, anything like that. As far as the evidence stands Mr Dimovski performed the duties that were found for him properly. It may require some adjustment to schedules; that may be, but the Commission has found that my client was wrongly terminated and that is an inconvenience which the Commission should not hesitate to impose upon the employer.

PN79

I would concede the situation would be quite different if my client had been terminated due to allegations of fighting, allegations of vandalism, allegations of operating machinery dangerously. If any of those allegations were to be possibly proved correct, clearly, there would be a great detriment to the employer in having such a worker reinstated. The allegations at their highest are that my client stole a drum worth no more than $5. That is putting the allegations at their very highest.

PN80

It is my submission that the decision by Deputy President Ives has vindicated what my client has said all along and that in principle he should be entitled to the fruits of that vindication in the absence of any serious detriment to the appellant. It has been suggested and it has been, certainly, ordered in previous, or in other matters that the amount of arrears be paid into an interest-bearing account. In my submission that would not adequately protect my client given that he has deposed to his very poor financial position. Having the money in an interest-bearing account in effect really does very little for him.

PN81

It has never been contended that the employer would renege on its obligations. My client believes that whatever the Commission orders the employer will do. By having the money in an interest-bearing account at the very most would allow my client to earn some small amount of interest. In terms of reinstating him, my client is ready to start work immediately. I have said he is available to start work on morning shift instead if that is preferred by the employer.

PN82

If the employer were to suggest that the worker should not be returned but should be paid his normal wage my client is not keen for that outcome. He would rather work than just get paid for nothing. But if the employer did have some particular objection to his returning, and I haven't seen anything to indicate that, then my client couldn't reasonably object to being paid to stay at home, but that is not what he wants to do.

PN83

THE SENIOR DEPUTY PRESIDENT: That is not what is sought by the employer as I understand it either.

PN84

MR SERRA: No, it is not, but I know that has been something which has occurred in other cases and just in case your Honour was minded to make that sort of an order my client's preference is to be returned to employment and to be paid. I am instructed that my client will undertake to repay all moneys which he is paid by way of arrears in the event that the Full Bench upholds the appeal. It would be my submission that there would be no need for an undertaking to repay any wages paid henceforward given that my client would be working for those wages.

PN85

Finally, your Honour, in my submission, it is significant that the dire financial position of my client has been created by the employer. He is not in a bad financial position because he has been to Crown Casino, he is in a bad financial position purely because he has been terminated. And the finding at first instance was that that termination was incorrect and that he is entitled to his employment back again. And, in my submission, it would be unjust for the Commission to prefer the interests of the employer over those of the worker in circumstances where the employer has led to - has created this adverse situation for my client and that is through no fault of my client.

PN86

Now, one thing which my learned friend and I discussed briefly before you came on the bench was whether the matter might be able to be listed for a speedy hearing by the Full Bench and that is something which I could address you on if that is an option. Certainly, my client would advocate the matter being disposed of as soon as possible and depending on the speed with which a Full Bench could be convened that, obviously, would have some effect on the detriment to my client of any stay. But, basically, the longer that my client will need to wait the greater the detriment to him and, in my submission, the application for a stay should be dismissed.

PN87

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr D'Abaco.

PN88

MR D'ABACO: Just two or three very brief comments in reply. Firstly, your Honour, in relation to the issue of an arguable case. My learned friend restricted his comments to what he says were finding of fact by Deputy President Ives which he says would be unlikely to be disturbed on appeal. That may well be the case if we were talking about one or two findings of fact but we say that his Honour, with all due respect, fell into error on a number of findings. But, more importantly, my learned friend didn't in any way address the submissions which I put to you that there are substantial legal issues involved in this appeal and those legal issues are such that we would submit that the appellant does have a reasonable prospect both in relation to leave and also substantial merits.

PN89

In respect of the issues of balance of convenience which are being put by my learned friend we reiterate, or I reiterate my submissions that the status quo is what ought to apply subject to the Appeal Bench by handing down a ruling but, more particularly, as I indicated to my learned friend, and I didn't indicate, your Honour, previously but it is certainly there in the written outline, my client is prepared to agree to a speedy hearing of the appeal so that any detriment which Mr Dimovski is suffering can, hopefully, be brought to an end one way or another in the very, very near future.

PN90

And it is on that basis that we would submit that the detriment which Mr Dimovski is suffering, although it is not in any way ridiculed or rejected by the appellant, we say that there are countervailing issues in terms of the current employment situation out at Howe Leather and also, notwithstanding the undertaking which my learned friend has given on behalf of his client, the prospects of being able to recover $19,000 from the respondent, particularly in circumstances where he has been unemployed for some 10 or 11 months and one can reasonably infer that the money may need to be put to some particularly urgent use.

PN91

THE SENIOR DEPUTY PRESIDENT: Gentlemen, I will adjourn briefly.

SHORT ADJOURNMENT [2.52pm]

RESUMED [2.58pm]

PN92

THE SENIOR DEPUTY PRESIDENT: I have reached the following decision. In this matter, on the material presented, I am satisfied the appellant has established an arguable case both as to merits and leave to appeal in respect of his Honour conclusion at paragraph 82 of his Honour's decision in respect of "effective mitigation of loss". I am not satisfied on the material presented that there is an arguable case on merits or with respect to leave to appeal on the other issues raised on appeal by the appellant.

PN93

With respect to the balance of convenience I am not satisfied it favours staying his Honour's order for reinstatement. While the reinstatement of Mr Dimovski may be inconvenient for the appellant as set out in the affidavit of Mr Chiodo, exhibit D1, in my view the inconvenience set out in that affidavit is more than outweighed by the inconvenience to Mr Dimovski of staying his reinstatement given his circumstances.

PN94

With respect to the balance of convenience in respect of staying his Honour's order in respect of the payment of ordinary time earnings lost between Mr Dimovski's termination and reinstatement I am satisfied the balance of convenience favours staying paragraphs 3 to 5 of his Honour's order and requiring the appellant to pay the moneys that would otherwise be payable under those paragraphs into an interest-bearing trust account pending the hearing and determination of the appeal.

PN95

Mr Dimovski faces financial difficulties, however, in this matter, in my view, his inconvenience in that regard is more than outweighed by the inconvenience likely to be faced by the appellant in recovering the moneys concerned should the appeal be successful. Accordingly, I will issue an order which stays paragraphs 3 to 5 of his Honour's order and also includes a requirement for the moneys that would otherwise be payable under those paragraphs to be paid into an interest-bearing trust account. The order will be issued shortly.

PN96

In respect of the hearing of the appeal proper the hearing will take place towards the end of March 2003 in Full Bench sittings that are scheduled for that time. I will now adjourn.

ADJOURNED ACCORDINGLY [3.00pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #D1 AFFIDAVIT OF ANTHONY CHIODO PN54