C2004/2039, Transcript of Proceedings [2004] AIRCTrans 1125 (25 March 2004)

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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL O/N 6417

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2004/2039

APPEAL UNDER SECTION 45 OF THE ACT
BY ENVOGUE HAIR DESIGN AGAINST THE
DECISION [PR943655] OF COMMISSIONER
FOGGO AT MELBOURNE ON 13 FEBRUARY 2004
IN U2003/7296 MANCHEE, BREARNE V
ENVOGUE HAIR DESIGN SECTION 170CE
APPLICATION FOR RELIEF RE TERMINATION
OF EMPLOYMENT

MELBOURNE

10.02 AM, MONDAY, 15 MARCH 2004

PN1

THE SENIOR DEPUTY PRESIDENT: Mr Ploumis, you are representing yourself?

PN2

MR N. PLOUMIS: Yes, your Honour.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, very well. I've received correspondence from Mr Dirck, which provided written submissions on behalf of the respondent in the appeal, and reliance is based entirely on those submissions. They won't be separately represented today.

EXHIBIT #M1 CORRESPONDENCE PROVIDING WRITTEN SUBMISSIONS FROM MR DIRCK

PN4

THE SENIOR DEPUTY PRESIDENT: Now, you have been given a copy, so you can address those submissions. If you need some time to have a look at them, you can do so.

PN5

MR PLOUMIS: I just got that actually now, so I didn't - we just got a copy before.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes. Well, would you like an opportunity to go through them before you commence?

PN7

MR PLOUMIS: Yes, please.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, how long would you think - 15 minutes?

PN9

MR PLOUMIS: Yes, 10-15 minutes.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes, very well. I will adjourn until 20 past 10.

PN11

MR PLOUMIS: Thank you a lot.

PN12

THE SENIOR DEPUTY PRESIDENT: Just before I do, Mr Ploumis, perhaps I should explain that since you are unrepresented, the process of a stay. There are two tests, essentially. The first is, in order for a stay to be granted, the Commission needs to be satisfied that there is an arguable case that the appeal would succeed. Secondly, that the balance of convenience would favour the granting of a stay. That is, weighing the interests of all parties that on balance the granting of a stay would be appropriate. So they are the two tests, essentially. I will now adjourn until 20 past.

SHORT ADJOURNMENT [10.04am]

RESUMED [10.26am]

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Ploumis?

PN14

MR PLOUMIS: Your Honour, in response to Mr Dirck's letter, paragraph 3, I had to represent myself. Sir, I could not afford to pay, and I also had to leave my work to come here for the same reasons by his client. Also on paragraph 12, where Mr Dirck's says he did have - it was a very short notice. I was told by the office they were going to contact him, given the short notice, and I was contacted on the morning of the 11th - very early, and I assume Mr Kirk's was contacted at the same time, or somewhere around there.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, I think, it could be say, it is very normal for a stay order to be listed at short notice.

PN16

MR PLOUMIS: Yes, that is what I'm saying. So Mr Dirck's obviously he didn't want to come here because he knew his case wasn't that strong.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes.

PN18

MR PLOUMIS: Also, the fact that he admits his claim to purchase a small business after she left my work, that reinforces my original argument. Also, Mr Dirck's says a stay has no practical effect, but ignores the fact that the decision was wrong, and for the wrong reasons, which is - I will explain further down.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes.

PN20

MR PLOUMIS: Also paragraph 21, the principle on Kinniburgh's case, it is difference to my case, which I will explain further down as well. Also for the practical purpose, I think, is to serve justice which Mr Dirck's ignores. For the other consideration, Mr Dirck's has here in his letter, exactly the same considerations apply to my case as well, because I had to do my work, and all the other things. If you - - -

PN21

THE SENIOR DEPUTY PRESIDENT: Okay. Well, perhaps, you should explain to me why you say it is that Commissioner Foggo erred in reaching the decision she did?

PN22

MR PLOUMIS: Yes, I intend to do that, your Honour. I'm going to the decision of Commissioner Foggo. Paragraph 1, admits when she alleges the termination from employment from the company was harsh, unjust, and unreasonable. Now, I've got here copy from the original application for Ms Manchee, and the reason we come here was for discriminations and failure to give notice of termination, which is my understanding, two completely different things.

PN23

Also in today's paper by Mr Dirck, on paragraph 8, he says: the grounds for the application included unlawful discrimination, and failure to give notice of termination. There's nowhere that the actual decision refers to harsh, or unjust, or unfair dismissal. So I think that proves the case, but anyway, I will go to the No 2 of the decision. Commissioner Foggo - I'm sorry.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes, yes. Go ahead.

PN25

MR PLOUMIS: Commissioner Foggo refers to my company as the applicant objecting to hear the Ms Manchee application. As explained to Commissioner Foggo, my company is to be a different entity. It has got nothing to do with Envogue Hair Design, who were the sole trader, and my company never objected to the application, because it had absolutely nothing to do - my company is a developing company and Envogue Hair Design is a - I'm a sole trader, which is my principal sort of income.

PN26

THE SENIOR DEPUTY PRESIDENT: Who initiated the challenge for the jurisdiction?

PN27

MR PLOUMIS: I did.

PN28

THE SENIOR DEPUTY PRESIDENT: On behalf of?

PN29

MR PLOUMIS: Myself and Envogue Hair Design.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes. Very well.

PN31

MR PLOUMIS: Also I go to paragraph 3 of the decision. We are also complying with section 170CB(a) and provided nine documents from Government agencies confirming start and finish dates for Ms Manchee's apprenticeship, and also Commissioner Foggo has ignored the fact. Now, we are going to paragraph 8, where Industrial Relations Commission contradicts the advice we are getting from the Apprenticeship Board, and all the other Government agencies, because even today if you would ring the Apprenticeship Board, they will give you that advice. When the apprenticeship is finished, employment finished at the same time, and that is advice that was given, and that was the file note from Mr Rigogiannis because that is what he advised me to do, and that is what he advises everyone to do up until now - up to today.

PN32

THE SENIOR DEPUTY PRESIDENT: Well, it does not say that, does it? It says that at the end of an apprenticeship, the employer is under no obligation to keep his or her apprentice. So you have the option of terminating, but equally an employee in that circumstance, unless they are excluded, has a right to make application in respect to that termination of employment alleging a discrimination, or harsh, unjust, or unfair, or whatever.

PN33

MR PLOUMIS: Yes, the reason I had the - I didn't have the option was because Mrs Manchee's wage was going to be about $240 on top of the normal wages within the award, so the penalties was going to jump from roughly $400 to $650.

PN34

THE SENIOR DEPUTY PRESIDENT: Well, that goes to the merit, rather than jurisdiction, does it not?

PN35

MR PLOUMIS: I understand that, but the thing is I am here because, like, the advice that was given by the Apprenticeship Board, and also from MEGT and like, I'm here, as a case, like, a principle, not anything else, because I don't see, like, how can you get that advice from two Government agencies to do this and then get penalised for that when you follow what they advise you to do, and then it is spoken with something wrong there because what can we do? Like small business, we can't afford to pay someone to represent us, or the advice we are getting from Industrial Relations Commission and also from the Apprenticeship Board, it is once the apprenticeship finishes we have got an obligation to keep them on.

PN36

THE SENIOR DEPUTY PRESIDENT: Well, that is correct. There is no obligation to keep a person on, but that is not the issue. The issue is whether the employment, in this case, predated the apprenticeship, is a finding of the Commissioner. In which case, the employment is separate from the apprenticeship contract, and on the principles established by SDP Williams in Kinniburgh's case, the traineeship exclusion would not apply in those circumstances to the employment of Ms Manchee.

PN37

MR PLOUMIS: It also goes there because we haven't got the forms. That is the thing I tried to explain to Commissioner Foggo. It is not something that we can do ourselves. Every time we employ someone, we have to ring an accredited agency by the Government, and where they have got time, they will come around. They will sign the paperwork, and they will submit it on our behalf, and on the apprentice's behalf.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes.

PN39

MR PLOUMIS: Now, the fact that, as Mr Dirck says, the paperwork was submitted 20 September, that is absolutely nothing to do with me, because it wasn't done by me, and if I had the forms I would have done that, I would, but I can't understand how Ms Manchee was disadvantaged by that fact since she was credited for all the time she was there - from day one. So I can't see no actual disadvantage there, because the day she started work she was credited for that time, and when she finished work, every single hour, every single minute, was credited to her.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes. Very well.

PN41

MR PLOUMIS: As I said, if I could - if we are allowed to have the forms in our businesses and then send them out, I can understand it, but if the Government takes 6 or 8 months between the different departments to send the paperwork, how do you penalise for that? Also go to paragraph 9, Roping-In Number 1 Award. That is the basis for Ms Manchee's claim - about the original claim, actually, about back pay.

PN42

So what I can't understand is how Ms Manchee complains and brings me here and then I'm not allowed to defend myself according to the award, because that is what Mr Dirck says. If it is good enough Ms Manchee to bring me here and claim the award, but I can't claim the award to defend myself. Also paragraph 31, Commissioner Foggo refers to Envogue Hair Design as a company.

PN43

THE SENIOR DEPUTY PRESIDENT: Sorry, which paragraph?

PN44

MR PLOUMIS: 31.

PN45

THE SENIOR DEPUTY PRESIDENT: 31, yes?

PN46

MR PLOUMIS: Envogue Hair Design, as I explained at the start, it is not a company. It is a sole trader. Also paragraph 32, that is where Mr Dirck complains about the paperwork was not done until 20 September, which is - I was, explained, away. Then paragraph 38.

PN47

THE SENIOR DEPUTY PRESIDENT: I'm sorry. Could you just explain to me again the reason the paperwork wasn't completed?

PN48

MR PLOUMIS: The paper was completed, but for some reason, different Government departments didn't submit them to each other, which is nothing to do with me. Also - - -

PN49

THE SENIOR DEPUTY PRESIDENT: Well, when was the training contract signed?

PN50

MR PLOUMIS: It was, say, about 6 weeks after Ms Manchee started, and that was according to the officer that I rang - when I rang, said: Ms Manchee's case was a bit different, because she had finished off-the-job training 27 May, before she started work with me. She had finished her work - she got a certificate from the TAFE and she didn't have to attend TAFE. So she only had to work to get on-the-job training, which she did, and she does not deny that. That is why the officer told me: that is all right, you don't have to - when we get some time we will squeeze you in, and he showed up about 6 weeks later to sign the paperwork.

PN51

Then it took him another 3 or 4 months to submit it, which is, as I said again, it had nothing to do with me. Then go to the back, paragraph 38, Mr Kinniburgh's decision, that does not apply to my case because, as I submitted, on the nine judgments to Commissioner Foggo, Ms Manchee knew exactly the date on which apprenticeship will be completed. When in the case of Mr Kinniburgh, he didn't know the exact date.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes, what about the commencement? What was the position in respect of that?

PN53

MR PLOUMIS: She commenced 27 May. Then she got paid for that.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes?

PN55

MR PLOUMIS: Also paragraph 39, about the decision in Kenny v Tyre Marketers (Australia) Pty Limited, Commissioner Lewin found that there was no evidence regarding the period of employment. Where in my case, there was plenty of evidence.

PN56

THE SENIOR DEPUTY PRESIDENT: Well, was it the period of employment, or the apprenticeship which had a conclusive date?

PN57

MR PLOUMIS: Yes.

PN58

THE SENIOR DEPUTY PRESIDENT: Which of the two?

PN59

MR PLOUMIS: Both of them.

PN60

THE SENIOR DEPUTY PRESIDENT: Where does that appear in respect to the employment, as distinct from the apprenticeship? Is there any documentation of that?

PN61

MR PLOUMIS: Yes, all the exhibits - sorry, I didn't think I had to bring all my - - -

PN62

THE SENIOR DEPUTY PRESIDENT: I have all the exhibits. They are in the original file.

PN63

MR PLOUMIS: Yes.

PN64

THE SENIOR DEPUTY PRESIDENT: Is it the training agreement P2?

PN65

MR PLOUMIS: No, it is exhibit P4.

PN66

THE SENIOR DEPUTY PRESIDENT: P4, yes. That is an extract from the Victorian Government apprentice training site.

PN67

MR PLOUMIS: The Office of Training and Tertiary Education.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes.

PN69

MR PLOUMIS: Which it states the agreement itself is completed. Commenced 27 May 2002. Nominal completion 3 November 2003. Termination 3 November 2003.

PN70

THE SENIOR DEPUTY PRESIDENT: That relates to the apprenticeship, rather than necessarily, the employment.

PN71

MR PLOUMIS: Also I've got the original extract from a booklet we get from the Apprenticeship Board, which makes no distinction between the employment and the training, and with other conditions it states:

PN72

If obtaining agreement is cancelled, a group training company may assist with the continuing employment of the apprentice.

PN73

So very clearly there's no distinction between training and employment, according to the paperwork we are given. So once the training then finishes, according to the Government, the continuing employment ceases as well. As I said, the reason I'm here is a matter of principle for me. It is not - I'm not trying to get away, because others said: I can go to conciliation and I can prove I couldn't afford, which is a fact, and the matter is finished, but because I was given all the wrong information by the government agencies, that is why I'm here.

PN74

THE SENIOR DEPUTY PRESIDENT: The Government agencies are dealing, in this case, with apprenticeship arrangements. The distinction drawn by Senior Deputy President Williams in Kinniburgh case is between the apprenticeship contact and the employment contract with which may overlap, but may, in other case, not overlap. Commissioner Foggo has found in this case that they are separate matters.

PN75

MR PLOUMIS: As I said, my argument is, we don't get that information from the Government.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes.

PN77

MR PLOUMIS: The information that we are getting, it is completely different, and as I explained, with a file note from Megt and the apprenticeship field officer, and also from a booklet we are getting from the Government. So according to them, there's no distinction.

PN78

THE SENIOR DEPUTY PRESIDENT: Well, they don't say that, do they? They just don't - only deal with traineeship. They don't deal with the employment.

PN79

MR PLOUMIS: No, that is what I am exactly saying. I had a number of conversations with apprenticeship field officers, and even now, your Honour, if you ring them, they will tell you exactly the same. Once the training finishes, there's no obligation to keep them on.

PN80

THE SENIOR DEPUTY PRESIDENT: No, well, that is correct. There is no obligation to keep them on, but that isn't the issue. The issue is, in this case, whether Ms Manchee has a right to bring an application in respect of the termination of employment. There's no doubt that you could terminate the employment, but that gives rise, unless Ms Manchee is excluded, to a right for her to bring an application alleging harsh, unjust, unreasonable, or discrimination, or whatever.

PN81

MR PLOUMIS: Yes, and also what they decided there - sorry. I will find the original here somewhere. Sorry, I didn't think I had to bring all the original paperwork. I'm sorry, I can't find the original.

PN82

THE SENIOR DEPUTY PRESIDENT: Which document were you looking for?

PN83

MR PLOUMIS: About paragraph 170CE which is about exclusion of the traineeship.

PN84

THE SENIOR DEPUTY PRESIDENT: You are looking for the Act?

PN85

MR PLOUMIS: Yes.

PN86

THE SENIOR DEPUTY PRESIDENT: Is that the passage quoted in paragraph 3 of the Commissioner's decision?

PN87

MR PLOUMIS: Yes, that is correct. Which spoke of this as retaining his employment as a training agreement or in a full traineeship. So I think, that is what my case is.

PN88

THE SENIOR DEPUTY PRESIDENT: Yes. Well, if I take you to the end of the Commissioner's decision, para 45 onwards and the Commission has found the circumstances are similar to Kinniburgh's case that the contract of employment is not necessarily, and isn't in this case, the same as a contract for apprenticeship. Whilst what you say about the contract for apprenticeship, and the advice received into that may well be correct, the contract of employment is of a different nature, and the employment preceded the apprenticeship, in effect, and in those circumstances, the exclusion does not have application to Ms Manchee's employment.

PN89

MR PLOUMIS: I also point to, your Honour, the decision summary. Also it was found - the Commissioner found the length of the contract of training was uncertain, which is, as I said, does not apply to my case, because there's a end date and a start date, and I put a little thought there, and also that wasn't done - Ms Manchee's apprenticeship wasn't a traditional area - apprenticeship area, and that still applies there.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Is there anything further you wish to put to me?

PN91

MR PLOUMIS: I would also like to point out to Mr Dirck's letter today where she says: Ms Manchee brought the small business after she left Envogue, which is reinforcing my argument which Commissioner Foggo thought we never had a verbal agreement with Ms Manchee, because we did have an agreement - verbal agreement from Ms Manchee, because she wanted to leave work and start her own business. That is what I told Commissioner Foggo, and she didn't believe me, but the fact today, Mr Dirck says on his letter:

PN92

Ms Manchee brought the small business after she left my employment.

PN93

I think, that proves my point.

PN94

THE SENIOR DEPUTY PRESIDENT: How does that demonstrate anything about a prior agreement that her employment would cease at that point of time?

PN95

MR PLOUMIS: Because Ms Manchee's point was, and she asked me as I said, on the regional exhibit, she repeatedly asked me to call for her earlier, so she can leave and start her own business, which I didn't, and she actually provided me with false information. She qualified on 20 September, which is - I submitted on my original exhibit. We had the verbal agreement, when the apprenticeship finishes, the same day she was going to go because she wants to start her own business, which she did. There's no doubt about it. So the only thing Ms Manchee wants to get back to me know, is because I refuse to qualify her 2 months earlier, and she just wanted to get back to me, and that is why she dragged me here now and all these things.

PN96

THE SENIOR DEPUTY PRESIDENT: Very well, anything further?

PN97

MR PLOUMIS: There's nothing I can think of.

PN98

THE SENIOR DEPUTY PRESIDENT: This is a stay application arising out of an appeal by Envogue Hair Design against a jurisdictional decision of Commissioner Foggo in print PR943655 on 13 February 2004. In that decision the Commissioner found that Ms Manchee had worked for the employer prior to the commencement of her apprenticeship and that there was a distinction in the circumstances of this case between the contract of apprenticeship and employment of a nature dealt with my Senior Deputy President Williams in Kinniburgh's case. The reference to Kinniburgh is, Kinniburgh v Printers Press Proprietary Limited print P6340.

PN99

Mr Ploumis has appeared in support of the granting of a stay order. The stay order was opposed by Mr Dirck for Ms Manchee via written submission in exhibit M1. The considerations for the granting of a stay are twofold. Firstly, whether the appellant has established an arguable case that the appeal might succeed and secondly, the balance of convenience in relation to the granting of a stay. Mr Ploumis' submissions relied extensively on advice given by relevant training authorities.

PN100

That advice was to the effect that an employer is under no obligation to maintain an apprentice in employment upon a completion of apprenticeship. That advice is, no doubt, correct, but does not reflect upon the issue now in contention arising from Kinniburgh's case as to the distinction between contract of employment and apprenticeship. That ground of appeal is premised on a misunderstanding of the difference between the employment contract and training contract as dealt with in Kinniburgh's case.

PN101

I'm not satisfied that the appellant has established an arguable case that the appeal might succeed. In that context, on what has been put to me it has not been established that the Commissioner was arguably wrong in her conclusions that the employment of Ms Manchee commenced prior to the apprenticeship, nor that the approach in Kinniburgh's case has no application in the circumstances of the present matter. There were other matters raised by Mr Ploumis in support of the stay which went to errors alleged in the decision of Commissioner Foggo, none of which I find to be relevant to the substantive matter on the appeal, and none of which support grounds that an arguable case has been made out in the appeal.

PN102

A number of the matters raised by Mr Ploumis went to issues of merit would be determined in any ultimate hearing if the matters proceeds to arbitration and do not go to the issue of jurisdiction. I'm not satisfied, therefore, that there is an arguable case raised by the appellant that the appeal would succeed. Accordingly, that issue does not support the granting of a stay order. Neither, in my view, does the balance of convenience favour the issuing of a stay order. The appeal will, if it is persisted with, proceed to a Full Bench and be determined finally by a Full Bench.

PN103

The matter will be listed on 20 April to hear the substantive appeal if the appellant wishes to proceed with the appeal. In the interim, the matter will be referred back to registry to arrange for conciliation. In my view, there is no disadvantage to the employer in the matter proceeding to conciliation. It will provide an opportunity for the matter to be settled between the parties. No outcome can be imposed on the employer in the conciliation proceedings, therefore I believe there is no detriment which would favour the granting of a stay in that response.

PN104

So I would encourage the parties to participate in conciliation with a view to resolving the matters. The application for a stay order is refused. If the matter is not otherwise disposed of and the appeal proceeds a Full Bench will hear the full appeal on 20 April at 10 am. I will now adjourn these proceedings.

ADJOURNED INDEFINITELY [11.00am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 CORRESPONDENCE PROVIDING WRITTEN SUBMISSIONS FROM MR DIRCK PN4