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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 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 6548
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT ACTON
C2004/2228
VARIAN AUSTRALIA PTY LIMITED
and
AUTOMOTIVE, FOOD, METALS,
ENGINEERING, PRINTING AND
KINDRED INDUSTRIES UNION
Notification pursuant to section 99 of the Act
of a dispute re dismissal of an employee and
industrial action
MELBOURNE
11.12 AM, FRIDAY, 26 MARCH 2004
PN1
THE SENIOR DEPUTY PRESIDENT: I can indicate to the parties that I have received an outline of submissions from the AMWU, a witness statement of Mr Lo, the witness statement of Mr Abrahamson, a witness statement of Mr Freeman, and a witness statement of Mr Selim. I have also received an outline of submissions from Varian, a statement of Mr Yan, a witness statement of Mr Ristevski, and a witness statement of Mr Leary. Is there any other documentation I should receive?
PN2
MR R. MARASCO: And there is also a statement for Mr Ivett, your Honour, that should be in our material.
PN3
THE SENIOR DEPUTY PRESIDENT: Yes, sorry, and I have. There is another statement here for Mr Ivett. Does that complete the documentation?
PN4
MR M. ADDISON: It does, your Honour. However, your Honour, we sought to call an additional witness this morning, Mr Hao Bi Diep. I hadn't met Mr Hao until about five, 10 minutes ago. It has become abundantly apparent to me that we are going to need an interpreter with regard to Mr Bi Diep. I have just tried to communicate with him, and he speaks Cantonese with very, very little English.
PN5
THE SENIOR DEPUTY PRESIDENT: All right. But you wish to call him?
PN6
MR ADDISON: We wish to call him.
PN7
THE SENIOR DEPUTY PRESIDENT: Yes.
PN8
MR ADDISON: So I don't know where that leaves us in terms of the logistics of the proceeding. Maybe it is best to do the witnesses that we can do today from the applicant's point of view. If we finish those, maybe Mr Marasco would want to start with his witnesses, and we will interpose Mr Bi Diep on Monday. I think the matter is listed again Monday.
PN9
THE SENIOR DEPUTY PRESIDENT: Yes.
PN10
MR ADDISON: And maybe that is the most expeditious way to do it, your Honour.
PN11
THE SENIOR DEPUTY PRESIDENT: Mr Bi Diep was the gentleman who was shifting his car at the same time?
PN12
MR ADDISON: The second person shifting a car, yes.
PN13
THE SENIOR DEPUTY PRESIDENT: As Mr Lo, yes, okay. Mr Marasco, I understand from discussions we had during the inspections that you object to the calling of Mr Bi Diep?
PN14
MR MARASCO: Well, I just don't know what Mr Bi Diep is going to offer. The company did interview him as part of their investigation. It is only Mr Leary and Mr Ivett can give evidence about that. I just don't know what Mr Bi Diep is going to add. We just don't want to be taken by surprise, and have Mr Bi Diep give evidence that we are unaware of, because a statement hasn't been provided. The AMWU should have put in a statement for him at the initial time that they thought his evidence was relevant.
PN15
THE SENIOR DEPUTY PRESIDENT: Right. Well, I propose to allow Mr Bi Diep to be called. If that requires Varian more time to consider whatever is put in examination-in-chief, then an application can be made.
PN16
MR MARASCO: Yes.
PN17
THE SENIOR DEPUTY PRESIDENT: Is a summons required?
PN18
MR ADDISON: No, your Honour. Mr Bi Diep, we spoke to him after the inspection, and Mr Bi Diep is here. The difficulty I have got, and I would foreshadow immediately that I would not oppose any application that Varian might make for additional time on Mr Bi Diep's evidence. I haven't even had the ability to take instructions from Mr Bi Diep because I can't communicate with him, your Honour.
PN19
THE SENIOR DEPUTY PRESIDENT: Presumably there is someone though that is either another member of your organisation who can talk to him?
PN20
MR ADDISON: I am sure we can do that during the course of the afternoon, yes, your Honour. I would seek to do that at lunchtime.
PN21
THE SENIOR DEPUTY PRESIDENT: Yes. What I will do then is, I will arrange for an interpreter for first thing Monday morning, and it may be necessary, depending on where we are with the witnesses, to interpose Mr Bi Diep so that we have got the efficient use of the interpreter. The language is?
PN22
MR ADDISON: Cantonese.
PN23
THE SENIOR DEPUTY PRESIDENT: Cantonese. Okay.
PN24
MR ADDISON: Thanks, your Honour.
PN25
THE SENIOR DEPUTY PRESIDENT: The way I propose to deal with this, is deal with the witness evidence first and then deal with submissions. Mr Addison?
PN26
MR ADDISON: Yes, thanks, your Honour. Your Honour, just in terms of the outline of submission that was filed on behalf of the AMWU, there is a clear mistake, which has already been pointed out in Marasco's outline, and that is - - -
PN27
THE SENIOR DEPUTY PRESIDENT: Just before you go to that, Mr Addison. I think this is actually a new matter, and I haven't had the section 99 on before. Did I have a 127 on before?
PN28
MR ADDISON: There is a 127, your Honour.
PN29
MR MARASCO: And I lodged a section 99.
PN30
THE SENIOR DEPUTY PRESIDENT: The reason I raised it is that I will need to take appearances.
PN31
MR ADDISON: In that case, your Honour, I appear on behalf of the Australian Manufacturing Workers Union, together with MS K. WILD, and the applicant and various members of our organisation from the site.
PN32
MR MARASCO: I appear on behalf of the Australian Industry Group, together with MR T. ROBINSON and MR R. LEARY. If the Commission pleases. While I am on my feet may I just raise a very brief preliminary matter. As you are aware, the proceedings began under section 127 of the Act, and that application was withdrawn after an agreement was made with the AMWU for the progressing of this matter, and I understand that you are hearing this under a section 99 which I lodged on behalf of the company.
PN33
Part of the agreement is that Mr Lo has been on full pay until this proceeding is determined. So we would respectfully request, if it is at all possible, that we get an ex tempore decision at the conclusion of the hearing, if that is possible, from your Honour. If the Commission pleases.
PN34
THE SENIOR DEPUTY PRESIDENT: Mr Addison?
PN35
MR ADDISON: Thanks, your Honour. Your Honour, maybe the most appropriate position at this point in time is to determine whether witnesses should be in or out of the room.
PN36
THE SENIOR DEPUTY PRESIDENT: What is your position on that?
PN37
MR ADDISON: I don't care. I don't know what Mr Marasco's position is, but as a matter of fairness I will raise it.
PN38
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Marasco?
PN39
MR MARASCO: I don't really care either. We may as well have the witnesses stay, I suppose, to save them being bored, unless there is an - - -
PN40
THE SENIOR DEPUTY PRESIDENT: Well, I have got a view. They should be out.
PN41
MR ADDISON: I am happy to go with your view, your Honour. I would ask that Mr Abrahamson be allowed to stay to instruct me.
PN42
THE SENIOR DEPUTY PRESIDENT: Yes.
PN43
MR MARASCO: Yes. And I also ask that Mr Leary be able to stay to instruct me. I certainly don't object to Mr Abrahamson remaining.
PN44
THE SENIOR DEPUTY PRESIDENT: Yes. Well, bar those and the witnesses in the box, the others should be out of the room. Mr Addison?
PN45
MR ADDISON: Yes, thanks, your Honour. Your Honour, first of all, if I can just correct an incorrect statement in the outline of submission filed on behalf of the AMWU. That is the reference in the first paragraph to Mr Lo's employment history. The word used there is impeccable. I think it is agreed between the parties that Mr Lo, in fact, did have a warning, one warning on his file, which was a first and final, which is referred to in various of the company's statements. So just for the record I would just seek to delete that reference to Mr Lo having impeccable employment history.
PN46
THE SENIOR DEPUTY PRESIDENT: So what do you want it to read, he had an employment history?
PN47
MR ADDISON: No. It would simply read, Mr Lo was employed as a brick press in the sheetmetal department, and enjoyed his job. With that said, your Honour, I don't know if you intend to mark the outline.
PN48
PN49
PN50
MR ADDISON: Vincent, can you repeat your full name and address just for the transcript please?---Do I have to stand up?
PN51
No. Stay sitting down. But if you could just tell us your name and your address?---Vincent Lo.
PN52
And your address?---19 Alumis Court, Wheelers Hill.
PN53
Thank you. Vincent, have you prepared or had prepared for you a witness statement with regard to this matter?---Yes.
PN54
Could I hand you a copy of a witness statement. Could I get you to have a look at that witness statement, Vincent, and tell me if that is the witness statement that was prepared for you with regard to this matter?---Yes.
PN55
That is your witness statement?---Yes.
PN56
Can I ask you, do you wish to make any changes to that witness statement?---Sorry, I don't understand.
PN57
Do you wish to change it at all?---No.
PN58
Is there anything you would like to add to it or take away from it?---I think that is it.
PN59
Okay. And is that statement true and correct?---Yes.
PN60
Yes, thanks. Now, Vincent, I want to take you to 3 March, which was a Wednesday night, where you say in your witness statement that yourself and Mr Ho went into the car park to move your cars. Do you recall that night?---Yes.
**** VINCENT LO XN MR ADDISON
PN61
Yes. In terms of the physical environment, what was it like? Was it light or dark?---I think at that it was dark, because I already have - already past half past eight, right, the sky is dark.
PN62
Can you tell her Honour what happened from your leaving the factory to you bringing the car back to the car park?---Well, that night at half past eight it is our lunch break, right. I went out with Hao, my colleague, right, together to the - we have to walk across the field and over the grass to the other side of the car park to take the car. Usually because when we come in at half past three the car park near the entrance is nearly full, almost full, right, so usually we park the car on the other end, right. At lunchtime, I mean the break, so we take the car so that when you go home it is easier, we don't have to walk a long way. So that night I take the car and park near the entrance, right, and Hao follow too. I park the car first, and Hao follow. After I leave the car, right, I walk round in front of the car, right, of the car. Across there is three empty car park between my car and the one said to be damaged. I just pass through there, right. At the end, to the edge there, I saw something moving. Something moving. So I went there, I went and see and what happened, right. I saw a man sitting smoking. We say hello, you know, just say hi, something, and I said something like, smoking, no lunch, and then just say. And I go back to the lunch table, because the lunch table is a little bit, a few on the other side.
PN63
Can I ask, Mr Lo, in terms of your lunch, Mr Ristevski will give evidence that your lunch bucket, or your lunch box was on the table. Is that right?---Yes.
PN64
When did you put that on the table?---When we going to get the car, because the field, you know, pass by the lunch table, put down there, and get the car.
PN65
Was there only your lunch box there, or was Mr Hao's lunch box there too?---I think he put the lunch box there too.
PN66
So both of you put your lunch boxes on the table?---Yes.
**** VINCENT LO XN MR ADDISON
PN67
Okay. And then you went and got your cars and you brought the cars back?---Yes.
PN68
Okay. Can I ask, did you walk across the field together?---Yes.
PN69
Did you drive back at about the same time?---I think I drive first, he come later.
PN70
How much later?---Roughly one or two minutes, something like that.
PN71
One or two minutes?---Yes.
PN72
Okay. So when you parked your car, as I understand from the inspection this morning, you said you reverse parked your car?---Yes, I reversed.
PN73
You reverse parked it. You then got out of the car?---Sorry?
PN74
You then got out of the car?---Yes.
PN75
Where was Hao at that point in time when you got out of the car?---I didn't see him. I think his car is on the way.
PN76
His car was on the way?---Yes.
PN77
When you started to walk across the vacant car spot, where was Hao then?---Can you repeat it?
**** VINCENT LO XN MR ADDISON
PN78
Yes. You got of your car, you walked around the front of your car?---Yes.
PN79
You went across the vacant car spot, right?---Yes.
PN80
When you were walking across that vacant car spot, do you know where Hao was?---No. Because my car is there, I walk across the empty space, right.
PN81
So you had your back to Hao at that point in time?---Yes.
PN82
Yes, okay. And you say you came diagonally across the empty car space; yes?---Yes.
PN83
Your Honour, can I ask that the witness be shown exhibit G of - attachment G, I should say, of Mr Leary's statement.
PN84
Do you recognise that?---Yes.
PN85
Is that a statement by yourself?---This one, yes.
PN86
Yes. Can I ask you how this came about?---Sorry?
PN87
How this came to be produced. Were you asked to produce it? Mr Leary will give evidence that he asked you to put a statement together?---He asked me to jot a few notes and hand in, just a few notes what has happened on that night. So this is it, I drop in a few notes.
PN88
Okay. And when did you give this to Mr Leary?---I think the next day, the next time we have a meeting, the next time.
**** VINCENT LO XN MR ADDISON
PN89
You see, it is dated the 11th of the 3rd. Is that when you gave it to him? If you look at the bottom of it you will see, a statement provided by Vincent Lo?---Yes.
PN90
And it is dated 11 March 2004. Is that when you gave it to Mr Leary?---I can't remember the date, because he call me up a few days later, and then this thing, this note I handed to Mr Leary when the shop steward and the union representative there.
PN91
If I can try and give you some guidance, because this might jog your memory better. The incident that is alleged to have occurred happened on a Wednesday, Wednesday the 3rd. The weekend was the 6th, 7th and the 8th, because it was the Labour Day holiday on the Monday, on the 8th. The 11th was the following Thursday. Did you give the statement to Mr Leary on the Wednesday or the Thursday?---This one I can't remember the exact day, because I give this one when the shop steward and the union representative, I give it to him.
PN92
Okay. Was Peter Abrahamson present when you gave it to the company?---Yes.
PN93
Yes, okay. Fine, thanks. And after you had given this to the company, did the company, did Mr Leary talk to you about this statement at all?---Who is Mr Leary?
PN94
The industrial relations manager, this fellow, did he talk to you at all about that statement?---About this?
PN95
Yes?---He mentioned about it a little bit.
PN96
A little bit?---Yes.
**** VINCENT LO XN MR ADDISON
PN97
What did he mention about it?---I can't remember.
PN98
Now, Mr Ristevski will give evidence that he was sitting on the passenger side of the green Ford Falcon, having a smoke on the concrete block in the next vacant parking lot. That is correct, isn't it?---It is on the rear.
PN99
On the passenger side?---On the passenger side at the rear, not in the driving.
PN100
No. At the rear?---At the back.
PN101
You agree with that, don't you?---At the back?
PN102
Yes. You agree with that?---Yes.
PN103
Mr Ristevski will say that when you walked across the parking lot that you didn't walk diagonally across the car parking spot. He will say that you walked to the front of Eddie's car. Is that correct?---No. I just walk across it. Across it, not in the front.
PN104
Not at the front. Mr Ristevski will also say that he heard a scraping noise - let me coin it properly - he heard a scraping noise coming from the driver's side of Eddie's car, and that the scraping noise was a grating sound, it sounded like a key or a screwdriver scraping against the car's duco. That is what he will say, right. Now, did you scrape a key or a screwdriver along the driver's side of Eddie's car?---No.
PN105
No. Did you scrape any other object along the side of Eddie's car?---No.
PN106
No. Did you put any of the scratches on the driver's side of Eddie's car on that night on 3 March?---No.
**** VINCENT LO XN MR ADDISON
PN107
No. Now, you say it was dark?---Yes.
PN108
When you came around, came across the vacant car park, car spot, you came to the corner of Eddie's car, the boot corner of Eddie's car?---Yes.
PN109
When exactly did you see Mr Ristevski, when was the first time you saw him walking across that vacant car spot?---I am not quite understand.
PN110
Yes, sorry. If I can take you to attachment G, you will see there is a dotted line where you came out of your car, you walked round the front of your car, and then you walked diagonally across there, the vacant car spot. On that dotted line, when was the first time you saw Mr Ristevski, who was sitting behind at his car? Were you halfway across the vacant car spot, or were you right on the corner of the boot, or where were you?---I think almost at the end.
PN111
So you were almost at the corner of the boot?---Yes.
PN112
Okay. And what did you see of Mr Ristevski?---I say - - -
PN113
No. What did you see?---What did I see?
PN114
Yes?---I see that - I see something moving, right. So I have to come closer, I come closer and look.
PN115
Right. So when you saw something moving, what was your thought?---I don't actually know, just, you know, just give me a shock.
PN116
It gave you a shock?---Of course. Because something moving in the dark when I cross it, of course you, yes.
**** VINCENT LO XN MR ADDISON
PN117
You keep doing that. You did that on the inspection this morning too, like step back. Did you step back when you saw his head moving?---I just got a shock.
PN118
Got a shock. Okay. What did you do then, after you had a shock, you had seen this movement and you had a bit of shock, and you took a step back. What did you do next?---What is this?
PN119
What it is, yes. And did you recognise Mr Ristevski?---Yes.
PN120
You know who he is?---Yes.
PN121
And he is a work colleague, is he?---He does not work in my department, on the other department.
PN122
But he works in the factory, doesn't he?---Yes.
PN123
And you knew that?---Yes.
PN124
And what did you then do?---When I see him?
PN125
When you see him, yes, what did you do?---I said no lunch, or smoking, or something like that.
PN126
Okay. So what did you do with your hands?---Like that.
PN127
Where?---Here, on his shoulder.
**** VINCENT LO XN MR ADDISON
PN128
On his shoulders. So you put both your hands on his shoulders?---I think like that.
PN129
Yes, you put both your hands on his shoulders. And just can you say once again for her Honour, what did you actually say to him? What did you actually say to him?---I say hello and something like that.
PN130
So you said hello to him?---Yes.
PN131
Did he say hello to you?---Yes.
PN132
Yes. Then did you put your hands on his shoulders, or did you have your hands on his shoulders already?---My hands go there, I said hello, I said no lunch, smoking, something like that.
PN133
Okay. So you said, no lunch, or smoking, or something like that, that is what you just said. You just answered my question and you said that you said to Mr Ristevski, you're smoking again, no lunch, or something like that?---Yes.
PN134
Yes. So could you have said something different to that?---I can't remember.
PN135
You can't remember. That's fair enough. You see, Mr Ristevski will say this. He will say you came around the back of the car, he will say that you put your hands on his shoulders, so he agrees with you there, he will say that he then said to you, what's the matter? Did he say that to you? Do you recall him saying that to you?---I don't recall.
PN136
You don't recall that. He will then say that you replied, nothing, nothing, and then you left him and went back to the lunch table?---Right.
**** VINCENT LO XN MR ADDISON
PN137
Is it possible that you said that?---Me say that?
PN138
Yes?---Yes, could be I say, if somebody asks, say, oh, nothing.
PN139
So it's possible that he said to you, what's the matter? You've said, nothing?---Yes.
PN140
And off you go to have your lunch?---Yes.
PN141
That is possible?---Yes.
PN142
Now, when you sat down to have your lunch, how long after that was it when Hao joined you?---When I come to the table, right, he come, I saw him coming.
PN143
Okay. So you sat down?---Yes.
PN144
And you saw Hao coming?---Hao.
PN145
Can you tell me where he was when you sat down?---I think he is coming from his car at the end, I saw him.
PN146
So he was walking, was he?---Yes.
PN147
He parked his car?---Already park.
PN148
He was out of his car?---Yes.
**** VINCENT LO XN MR ADDISON
PN149
And he was walking towards you?---Yes.
PN150
Okay. Was he on the grass or was he on the bitumen?---He is on the concrete there, because there is the edge, and then this is the grass, I saw him already on.
PN151
On the grass?---On the edge of the concrete.
PN152
On the edge, okay. So he was on the kerb?---Yes.
PN153
THE SENIOR DEPUTY PRESIDENT: Sorry, when did you see him on the kerb?
PN154
MR ADDISON: When he sat down, I think.
PN155
When did you see Hao on the kerb? Where were you when you saw him on the kerb?---I was sitting on the lunch table.
PN156
And was he on the kerb near his car?---Yes.
PN157
Now, I just want to take you to another couple of things, Mr Lo, and then we will hand you over to the tender loving care of Mr Marasco. On 2 February of this year, 2004, Mr Leary will give evidence that on 2 February that you were issued with a final written warning?---Yes.
PN158
Yes, you agree that happened?---Yes.
PN159
Mr Leary will say that that is because you were smoking in a non smoking area?---Right.
**** VINCENT LO XN MR ADDISON
PN160
Do you agree that that is correct?---Yes.
PN161
And Mr Leary will say that you were smoking in a non smoking area on a Saturday evening?---Right.
PN162
That is correct?---Yes.
PN163
Can you tell her Honour of the events of that evening, of how you came to have a smoke in the chemical area?---What do you mean?
PN164
Can you explain to her Honour what happened on that Saturday evening when you were having a smoke in the chemical area?---Yes.
PN165
Can you just tell her Honour what happened there?---That night I was go up there in the non smoking area, right, a car pass by and stop and turn down the window and asked me what I'm doing. I say I'm smoking.
PN166
So when he asked you what you were doing, you told him you were smoking?---Yes.
PN167
It was fairly obvious though, wasn't it?---Yes. Because smoking is smoking, right, he saw me there. What can I say?
PN168
Now, can I take you to exhibit B. The document you have got which has got G written on it, attachment G, if you can just flick forward on that to attachment B. Sorry, your Honour, you haven't got a copy of any of this, have you?
PN169
THE SENIOR DEPUTY PRESIDENT: No.
**** VINCENT LO XN MR ADDISON
PN170
MR ADDISON: Do you have a spare copy?
PN171
MR MARASCO: Yes.
PN172
MR ADDISON: Sorry, your Honour.
PN173
Now, attachment B describes an interview that occurred on 2 February 2004. The records that the matter in question was that you were observed smoking in the bonded area at five to eight on Saturday, 31.1.04, whilst you were working an overtime shift. That was the issue, wasn't it?---Yes.
PN174
Now, it records that when that was put to you, you had, or it says the response given was, no excuse. Is that correct, is that what you said to the company?---What do you mean?
PN175
Well, it records, says you were given an opportunity to respond. So they put it to you, they said to you, Vincent, you were sprung on Saturday afternoon or Saturday evening at five to eight, and you were having a smoke in the bonded area?---Yes.
PN176
Yes. Then it says, in terms of your response, the following response was given; no excuse. Now, I am just asking you to tell her Honour, in that interview when that allegation was put to you, what exactly did you say?---I still don't understand.
PN177
You went to the meeting? You went to the meeting on 2 February?---Yes.
PN178
And it was a counselling meeting?---Yes.
**** VINCENT LO XN MR ADDISON
PN179
The company told you that they believed that you had been smoking in the bonded area?---Right.
PN180
Yes, you agree?---Yes.
PN181
What did you say to them when they said that to you?---I say nothing. I say nothing. Since you saw me I admitted to it because I do it, so I sign it, that's it.
PN182
So you said to the company, yes, you're right, I did it, or words to that effect?---Yes.
PN183
Yes. So you agreed that you did it?---Yes.
PN184
You fessed up. Now, the company then issued you a final written warning, that is correct?---Yes.
PN185
And that is, you will find the next page, attachment C. I think this is common ground. Had you ever had a warning before that?---No.
PN186
No. And how long have you been employed by Variant?---Roughly 14 years.
PN187
Fourteen years. You attended the company on 5 March with your wife and daughter?---Yes.
PN188
The incident happened on the 3rd. On the 4th you went to work, that is the Thursday, you went to work. The alleged car scratching incident happened on the night shift on the Wednesday?---Yes.
**** VINCENT LO XN MR ADDISON
PN189
Then you went to work on the Thursday, the next day?---I only come and work one or two hours.
PN190
Yes. And you had a meeting with the company?---Yes.
PN191
And the company asked you to leave, is that correct?---He said that for the investigation you better leave, don't, you know, interfere or maybe somebody, you know, disturb others, you know, you better go home and let them investigate this problem.
PN192
Okay. So on the 5th you came back, which was the Friday, you came back with your wife and your daughter?---Yes.
PN193
And who did you speak to that day?---I didn't speak much. My wife had talked to John Ivett.
PN194
So your wife spoke to John Ivett?---Ivett, yes.
PN195
And who is he?---John Ivett is the manager.
PN196
He is the manager, okay. And were you part of that discussion?---About why he ask me what happened, why he stop from doing the work. If you are doing the investigation, well, I still have the right to work.
PN197
Yes, okay. And what did Mr Ivett say to your wife, do you know?---He said this one because he is not the, he is not the human resource manager, right, he is only a factory manager.
PN198
Okay. So did he refer your wife on to the human resources people?---He said because at that time Rob Leary is out there too.
**** VINCENT LO XN MR ADDISON
PN199
Sorry, say that again, I missed that, Vincent?---At that time when we are talking, Rob Leary, he come out from the office.
PN200
Okay. So did you have a discussion, or did your wife have a discussion with Rob Leary?---Well, he said this thing, I don't have to talk to you because these things handled by the police because they are going to hand this case to the police to investigate.
PN201
Okay. And what happened then?---Then we ask for to see - I ask for the - can we see the shop steward, because we have to tell the shop steward what happen.
PN202
Okay. So you then had a discussion with the shop stewards?---Yes.
PN203
And then what happened? After that did you go home?---Yes.
PN204
Okay. So the next time you came to the company, as I understand the evidence before us, it was then the weekend, yes? And then the next time you came to the company was the 10th, is that correct, on the Wednesday? I do apologise, I am misleading you. You were rang by the company on the 10th, and you were asked to come to a meeting on the 11th, on the Thursday?---Mm.
PN205
At that point in time that is when, as I understand the evidence, you were asked to write that statement?---Yes.
PN206
And you came into the company on the Thursday and you had a meeting which involved the shop stewards, Mr Abrahamson and the management representatives. Can you tell her Honour what you remember of that meeting?---At the meeting there was Rob Leary there, John Ivett, Abrahamson, two shop stewards and me.
**** VINCENT LO XN MR ADDISON
PN207
Yes. And what happened at that meeting?---The meeting, because they do the talking, all right, and they said they look at my notes, you know, the few notes there. They said you seems to be miss something.
PN208
Who said that?---John Ivett. But you said - because I didn't mention because I just jot a few notes, all right. He said, did you touch him, yes, did you touch him like that?
PN209
And what did you say?---I say I did. But how come you not write here? I said, you know, my English is not so good, what can I remember, a few notes. Maybe that one I miss out.
PN210
So you have gave them your notes?---Yes.
PN211
Did you give them those notes at the beginning of the meeting?---Yes.
PN212
Yes. And you gave the notes to who, to Mr Leary?---Yes.
PN213
Yes, you gave it to Mr Leary. And Mr Leary then said to you, you have missed something in the notes, you didn't mention that you had touched Mr Ristevski?---No, he didn't do the talking. I think John Ivett talked.
PN214
John Ivett was doing the talking?---Yes.
PN215
Okay. So John Ivett said to you, you have missed that, the fact that you didn't put in that you had touched Mr Ristevski?---He said you didn't put it in.
PN216
Yes. And you said, yes, that is right, I did touch him, yes?---Yes, I did.
**** VINCENT LO XN MR ADDISON
PN217
And what else was discussed with regard to those notes, what else was talked about with regard to the notes?---Mr Abrahamson asked, you know, they said that they have reference from the witness, and the car, you know, the car owner, the damage of car owner, they said they have the writing, a statement, so he give it to Mr Abrahamson to look at.
PN218
Were you involved in that discussion?---No.
PN219
And did you say anything at all in that meeting apart from what you have already told us that you said?---No, I didn't say.
PN220
You didn't say anything else, okay. Now, at the end of that meeting what happened?---I tell you not everything. Well, we went out to the car park, went out to the car park, and Mr Abrahamson said what the situation is, and called a mass meeting.
PN221
Okay. But before you got there did anybody from the company tell you that your employment was terminated?---They give me a note, a terminate note.
PN222
Gave you a letter of termination?---Yes.
PN223
I have no further questions for this witness, your Honour.
PN224
THE SENIOR DEPUTY PRESIDENT: Mr Marasco?
PN225
MR MARASCO: Your Honour, may I be indulged in just a few minutes to take instructions for the purposes of cross-examination?
PN226
THE SENIOR DEPUTY PRESIDENT: Yes, certainly. How long do you want?
**** VINCENT LO XN MR ADDISON
PN227
MR MARASCO: Maybe 10.
PN228
THE SENIOR DEPUTY PRESIDENT: I will adjourn till quarter past.
SHORT ADJOURNMENT [12.03pm]
RESUMED [12.22pm]
PN229
THE SENIOR DEPUTY PRESIDENT: Mr Marasco?
PN230
MR MARASCO: Thank you, your Honour.
PN231
PN232
MR MARASCO: And the outline of submissions are AMWU1, that would be correct?
PN233
PN234
MR MARASCO: Mr Lo, you have been employed by Varian for almost 14 years, is that correct?---Yes.
**** VINCENT LO XXN MR MARASCO
PN235
And what, you occupy the position of C11, that is your classification?---Yes.
PN236
And Eddie Yam, he is a C9, is that correct?---This I don't know his wages, I don't know what grade he is in.
PN237
But do you know that he is paid more than you?---Well, I have no idea because I don't know what kind of wages he got.
PN238
Sure. No, that is fair enough. But are you aware that he is on a higher classification, he is a C9? You are not aware of that?---I don't know whether C9 or what.
PN239
Sure. But you know he does a different job than you, doesn't he?---Yes, he do a different job.
PN240
Yes. And you don't dispute that he is a higher classification than you, because you don't know his classification?
PN241
MR ADDISON: No. It is conceded.
PN242
MR MARASCO: We will just clarify that.
PN243
MR ADDISON: Well, it is conceded.
PN244
THE SENIOR DEPUTY PRESIDENT: Ask the question again, Mr Marasco.
PN245
MR MARASCO: You don't dispute that Eddie Yam is a higher classification than you, he is a C9? So you are not telling me that is wrong, he is the same as me, he is just a C11?---I think he should be higher than me.
**** VINCENT LO XXN MR MARASCO
PN246
Yes, okay. Thank you. And Mr Ristevski, he is higher than you too, isn't he? He is a C9 as well?---But this I don't know because I cannot see his pay slip.
PN247
No, of course not. I know you don't see his pay slip. Mr Ristevski, he does a different job than you too, doesn't he?---He did, yes, he did a different job from me.
PN248
He does a different job?---Yes.
PN249
And you don't dispute that he is on a higher classification too?---No.
PN250
So you don't disagree with that, you don't say to me, that is wrong, Michael a C11 as well?---I never thought that.
PN251
No, that is all right. Can I take you to the inspection we had this morning. We were out at Springvale Road this morning. There was a loud noise from the plant, from the air conditioning. Do you remember hearing that noise, the air conditioning unit?---Inside or outside?
PN252
Well, I think it is inside, but you can hear the sound from outside?---Even from the outside I can hear the air conditioner inside.
PN253
I think the unit is outside that provides air conditioning for inside. Do you remember we could hear the noise of the air conditioning for inside the factory?---I didn't notice about that.
PN254
You didn't take notice?---Yes, because, you know, in this case how can I listen this and listen - - -
**** VINCENT LO XXN MR MARASCO
PN255
No, that is fair enough. But the company witnesses will give evidence that the air conditioner operates for the day shift, which ends at 3.30 pm, that there is approximately 200 people who would work on the day shift, that ends at 3.30 pm, and the air conditioning is then turned off, and at night shift there is no air conditioning because there is only 14 people in at the factory. Do you dispute that?---There is the air condition during the afternoon shift too.
PN256
Sorry, I just wanted to clarify that, Mr Lo. The company actually does provide air conditioning for the afternoon shift, so you don't dispute that, there is air conditioning when you are on afternoon shift?---Yes.
PN257
And there is only 14 people on afternoon shift, is that correct, approximately?---I don't count how many people.
PN258
No. About 14. There is not a couple of hundred, is there?---You mean 14 including the sheetmetal and the machine shop?
PN259
Yes?---This I never count, because I don't - - -
PN260
No, I am not asking you to count and give me an exact number. But you don't dispute that there would be about 14 people? If the company says there is 14 people on afternoon shift, you wouldn't say to her Honour, or to the Commission, that is wrong, there is 200 people on afternoon shift?---No.
PN261
Right. And you don't dispute either the evidence of Mr Leary and Mr Ivett would be that air conditioning is provided throughout the plant during afternoon, by that time approximately 95 of the air conditioning units have shut down?
PN262
MR ADDISON: Your Honour, that is not a question that this witness could possibly answer, in my submission. That is a matter that is probably better dealt with through the employer's witnesses.
**** VINCENT LO XXN MR MARASCO
PN263
MR MARASCO: I just didn't want to have Mr Addison then object and say it was never put to Mr Lo. But what I am trying to get at, you did raise a question, your Honour, about the noise from the air conditioning unit. And Mr Leary has instructed me that on the afternoon, or certainly at the time of the incident, the car scratching incident, the noise wouldn't have been as loud from the air conditioning.
PN264
THE SENIOR DEPUTY PRESIDENT: I should tell you what my recollection of the conversation I had on the inspection this morning was. That I asked Mr Leary, and I must say I didn't know what machine it was, it appeared to be some large machine to me near the exit to the work area was making a noise, and I asked him whether that machine was on all the time. And my recollection of the answer was yes.
PN265
MR MARASCO: We might leave those questions for the employer's witnesses.
PN266
Now, can I take you to the smoking incident, Mr Lo. At the time you were caught by Mr Leary smoking in a non smoking area, you were paid to do overtime at that time, was that correct?---Yes.
PN267
Yes. So you were receiving penalty rates to be at work, but you had actually gone outside to have a cigarette?---Yes.
PN268
And you spent about 15 minutes outside, is that correct?---No.
PN269
How long would you have spent outside?---Five to 10 minutes at the most.
PN270
Five to 10 minutes. And that is not the only time that you went outside to have a cigarette, is it?---No.
**** VINCENT LO XXN MR MARASCO
PN271
You would go outside and have cigarettes when you are not meant to at other times as well, haven't you?---I don't understand that.
PN272
No, that is fine. Mr Leary, he caught you that time having a cigarette when you weren't meant to, and you admitted that, didn't you?---Yes.
PN273
You never denied it, you admitted it?---Yes, I admit it.
PN274
And you agreed to sign the record of interview saying that that was correct. You fessed up, as Mr Addison said. There have been other times though where you have gone outside to have a cigarette too when you're not meant to, but you weren't caught?---No.
PN275
There haven't been other times you have gone outside to have a cigarette?---No.
PN276
So you were just unlucky, you're telling the Commission, the one time you go outside to have a cigarette, Mr Leary caught you?---Yes.
PN277
That is very unlucky. How many cigarettes do you smoke a day? A packet a day or two packets a day?---No. I think half packet.
PN278
Half a packet a day. It is correct, isn't it, Mr Lo, that you had previously worked under the supervision of Mr Ivett, he was the manager in your area previously?---Yes.
PN279
Yes. During the course of your employment Mr Ivett has spoken to you about various issues?---Over what issue?
**** VINCENT LO XXN MR MARASCO
PN280
Yes. Mr Ivett has spoken to you about quality issues with your work that you have been doing?---I think so.
PN281
Yes. And he has also - your leading hand was Mr Jarek Zeman, is that correct?---That was the night.
PN282
Jarek, your leading hand Jarek Zeman?---He was in night shift, I in afternoon shift.
PN283
So you know Jarek Zeman, who is a leading hand of sheetmetal on night shift?---Yes.
PN284
You know him, don't you?---Yes.
PN285
Yes. And he has also spoken to you about issues, hasn't he? He has spoken to you about not obeying and not doing what he tells you to do?---I don't understand.
PN286
No, that is all right. You know Mr Zeman?---Yes.
PN287
He has had to tell you about - he has told you off for not doing what he has told you to do?---Because I am working in the afternoon shift, I got my leading hand, right, I have to listen to my leading hand first, right, unless my leading hand is absent, that means maybe sick, maybe take annual leave, right, that means if he in charge, of course, I have to listen to him.
PN288
And you didn't like having to listen to him?---I come to work, right. If he in charge I have to listen to him.
**** VINCENT LO XXN MR MARASCO
PN289
So you don't have to listen to him if he is not in charge?---I mean, in this case it is like that. What he ask me to do, right, I would do the one what my leading hand give me to do first, and then I finish that one first, and then do his job.
PN290
Yes. So that is why you didn't like doing what Mr Zeman told you to do?---No.
PN291
Because he was on - - -
PN292
MR ADDISON: Your Honour, can I object to this line of questioning. There is no witness statement from Mr Zeman, whoever Mr Zeman is. There is going to be no ability for the applicant to test any of this speculation that is being put from the bar table. If Mr Marasco wants to call Mr Zeman or wants to provide us with some of the evidence that he is attempting to cross-examine on, then that is one thing. But this is just an ambush.
PN293
MR MARASCO: Well, I deny that it is an ambush, and it is not speculation. I am just putting things to Mr Lo that Mr Ivett will be giving in his evidence. The evidence is, Mr Lo was never formally warned about performance issues to do with following directives or quality issues, but Mr Ivett's evidence will be that he spoke to the applicant about those issues, which I think the applicant conceded. I just wanted to raise that very briefly. I didn't want to dwell a lot on this point.
PN294
THE SENIOR DEPUTY PRESIDENT: Yes. It will be a matter of weight at the end of the day.
PN295
MR MARASCO: Yes, exactly. So we might even move on from that point.
PN296
Now, Mr Lo, it is correct, you deny scratching Eddie Yam's car, don't you?---No, I didn't.
**** VINCENT LO XXN MR MARASCO
PN297
No. And you say that it wasn't you. Your evidence is, you didn't scratch the car?---No.
PN298
No. But cars have been scratched in the car park before, haven't they?---What do you mean?
PN299
Scratched. Other people's cars in the car park at Varian, people have scratched them, haven't they?---I heard about it.
PN300
You heard about that. Because the evidence of Mr Leary will be, and Mr Ivett, is that other people's cars have been scratched in the car park?---I didn't know that.
PN301
You didn't know that now?---Yes.
PN302
But you just said you heard about it?---I heard about some people's car. But you just mentioned about John Ivett's car scratched.
PN303
No, it wasn't John Ivett's car. You see, Mr Leary will give evidence after you, on Monday, Mr Ivett will give evidence on Monday too, I must tell you now what their evidence will be so you can dispute it if you dispute it. So their evidence will be that other employees cars were scratched in the car park at Varian, and you agree with that, don't you?---Yes, some of the cars.
PN304
Yes, some of the cars have been scratched?---Yes.
PN305
One of the people's cars who were scratched was Mr Jarek Zeman. Do you remember that his car was scratched?---I heard about it.
**** VINCENT LO XXN MR MARASCO
PN306
You heard about it?---Yes.
PN307
That is fine. Did you hear that it happened a Saturday night during night shift overtime?---What do you mean night shift?
PN308
I will withdraw that. You heard about Mr Zeman's car being scratched in the car park?---I heard.
PN309
You heard about that, you knew about that?---No. Not until the day he call me in.
PN310
Until the incident happened?---Yes.
PN311
So you have never heard about it before?---No.
PN312
Right, okay. Because Mr Leary's evidence will be that that was never raised, they never mentioned that Jarek Zeman's car was scratched. Who told you that Jarek Zeman's car was scratched?---Well, I don't know who told me, because it happens many years ago, right, many years ago, right. If somebody's car scratched, obviously my car is scratch, and he talk to - they went and talk to that man, right, somebody say, oh, his car scratch. So I don't know who told me, you know. This rumour do the round and round, say, you heard that the car, the man's car is scratched, oh, yes, and that has been around, right. That is why I heard.
PN313
No, that is fair enough. But are you telling this Commission here that the first time you knew about Jarek Zeman's car being scratched was the time that the company told you that Eddie Yam's car was scratched; is that your evidence?---I don't understand.
**** VINCENT LO XXN MR MARASCO
PN314
No, that is fine. I will try again. Mr Zeman's car was scratched about a year ago, and Mr Leary's evidence will be that Mr Zeman's car was scratched a year ago when he was on night shift overtime, and that there were only four other people on overtime at the time, and one of them was you. Do you remember that Mr Zeman's car was scratched the night that you were at work?---No.
PN315
Right, okay. When did you first know that Mr Zeman's car was scratched? A year ago when it first happened, or another time?---Until they call me in the office, I know about it.
PN316
Right. Who told you though when they called you in the office? Did Mr Leary tell you?---They said to me in the office, they said somebody's car is damaged. I asked whose car? They don't tell me the name until I receive the termination, there is a name on it, then I know.
PN317
You are flicking through the document. What document do you mean, Mr Lo? Can we look at it? So the termination letter is attached A, I think, if my memory serves me correctly - F. Sorry, keep on going, that is number B, C, D, keep on going. Keep on going, the next one, Mr Lo, not that one, number F. That one. Don't keep on going. Are you telling the Commission the first time you knew that you were accused of scratching Eddie Yam's car was when you received that letter?---No, not this one.
PN318
What one do you mean, sorry? Find it, if you have got it?---It is not here. The one he give me, the termination, write down.
PN319
Is it the one before, number E, just a page before, Mr Lo, that one?---No, not this one.
PN320
THE SENIOR DEPUTY PRESIDENT: There seems to be a suggestion that it was a letter of termination.
**** VINCENT LO XXN MR MARASCO
PN321
MR MARASCO: Yes, which is number F. That is the only letter of termination, your Honour. Attachment F to Mr Leary's statement is the letter of termination.
PN322
Have you found that document?---It is not here.
PN323
Okay. What was it though, Mr Lo? Can you just explain what document it was?---The termination letter, two letters.
PN324
That were sent to you dismissing you from Varian?---Yes. And also said the reason why.
PN325
And you are sure it is not number F?---No.
PN326
Because Mr Leary's evidence is, that was the only termination statement sent to you, and Mr Leary gave that to you on the 11th at the meeting on the Thursday, the meeting with Mr Abrahamson and the shop stewards.
PN327
We might move on maybe, Mr Lo, because I just don't know what document that could be. But you were first accused of scratching Eddie Yam's car on the Thursday before, that is correct, isn't it? On Thursday, the 4th, you met with Mr Leary, and he said that someone witnessed you scratching Eddie Yam's car?---He didn't talk to me.
PN328
He didn't talk to you?---Not until I go to the meeting.
PN329
Right. When was the meeting, do you remember?---I think it is Thursday, yes.
PN330
Right, that exactly. Because the car was scratched on Wednesday, the 3rd. On Thursday, the 4th, Mr Leary interviewed you with John Ivett and Caruba, that is correct, isn't it?---Yes.
**** VINCENT LO XXN MR MARASCO
PN331
Yes. At that time on the Thursday, 4 March, you were told, weren't you, that it was Eddie's car that was damaged, Eddie's car was scratched?---They don't mention the name, he said somebody's car, he don't mention whose car, who is the owner of the car, who is the witness, he didn't tell me that.
PN332
Right. Because Mr Leary's evidence will be that you were told that it was Eddie Yam's car, that is what Mr Ivett will say too, but they wouldn't tell you who the witness is. So do you dispute Mr Leary's evidence? Mr Leary will say that when he interviewed you on 4 March, he told you that it was Eddie Yam's car that was damaged?---No, I didn't recall that, because you didn't - I ask him, you got any witness, he said yes. I said whose car is damaged? He didn't tell me.
PN333
Right. When were you told the that it was Eddie Yam's car?---I think until I receive the termination note.
PN334
The termination letter?---Yes. Because it written there and it said whose car damaged and who is the witness, but is not here.
PN335
Right. Just bear with me a minute. But it has just been said, this letter that has been given to you from the company, it is not in the bundle of documents there. Do you have it with you? Have you brought a bag or anything where the letter can be, or does Mr Abrahamson have the letter? Maybe would you have it at home, do you think?---Yes.
PN336
Yes. Who gave you the letter?---Rob Leary.
PN337
Rob Leary gave you the letter?---Yes.
PN338
Yes. And you are saying that in the letter it said you scratched Eddie Yam's car?---He said some - he said that this car damaged, something like that.
**** VINCENT LO XXN MR MARASCO
PN339
Okay?---Yes. So that is why - - -
PN340
And where is the letter now, at home?---Yes.
PN341
Yes. Well, you bring it in Monday please. So you remember then, Mr Lo, on Thursday, 4 March, you remember being in a meeting with John Ivett and Mr Leary. So Mr Leary here, who had a meeting with you on Thursday, 4 March, do you remember that? This is the day after the car had been scratched. Remember, on Wednesday you saw Michael, remember, and you say that you said to him, smoking again?---Yes.
PN342
And no lunch for you?---Yes.
PN343
Remember that from the Wednesday?---Yes.
PN344
The next day was the Thursday. Do you remember having a meeting with Mr Leary?---He send me in the office, yes, and Caruba, Rob Leary.
PN345
Yes?---And myself, that is it, that is the first meeting.
PN346
Yes, right. And John Ivett too?---Yes.
PN347
Yes, at that meeting. But you are telling the Commission they didn't tell you that it was Eddie Yam's car?---No.
PN348
You didn't know it was Eddie Yam's car?---Yes, I don't know.
**** VINCENT LO XXN MR MARASCO
PN349
So you remember later that night, at about 6 o'clock, you were told you should clock off and go home, Mr Leary said to you, clock off and go home; do you remember that?---They said - he told me I had to clock off, I take care of it. You don't have to clock off the card, I take care of it, you just go home, and let them investigate this matter.
PN350
Sure, okay. When did you first speak to Mr Abrahamson about the matter, do you remember what date it was when you first spoke to Mr Abrahamson, to Peter here?---This one?
PN351
Yes?---I talk to him about - I talk to him, he was the shop steward there, and assistant shop steward and Abrahamson.
PN352
Sure. When was that, do you remember? Was it the 10th or the 11th?---The date I don't know exactly, but the day I saw Mr Abrahamson it is with shop steward and assistant shop steward.
PN353
Sure. Now, those two shop stewards, that is Peter and Ken, isn't it?---Yes.
PN354
They are the two shop stewards - sorry, Ian and Ken?---Yes.
PN355
They are both on day shift, aren't they?---Yes.
PN356
And you are on afternoon shift?---Right.
PN357
Is there a shop steward on afternoon shift?---I don't think so. There is one - these two shop stewards in charge.
PN358
Yes, they are the shop stewards, two shop stewards, Ian and Ken?---Yes.
**** VINCENT LO XXN MR MARASCO
PN359
They are both on day shift?---Right.
PN360
So they finish at 3.30 each day, don't they?---Sometimes if they work overtime they may be stay for.
PN361
Yes, sure. But usually they finish at 3.30?---Yes.
PN362
Yes. You don't dispute that. Just taking you back again to that meeting on Thursday, 3 March, where you just remembered the meeting with Mr Leary here and John Ivett, this is the day after the car was scratched, 4 March, do you remember that meeting, the first meeting?---The first meeting is Charlie Caruba, John Ivett and - - -
PN363
And Leary?---Leary, yes, and myself.
PN364
You, you remember that?---Yes.
PN365
That is right. What time was that meeting? It was in the afternoon, wasn't it?---Yes. I come at half past three, and I think one or two hours.
PN366
Yes, sure. And they called you into a meeting and said you have been seen to scratch Eddie Yam's car?---They said somebody car is damaged.
PN367
Yes. Did they say we think it is you that scratched the car?---Well, they - I mean, they just discuss, they didn't point the finger at me.
PN368
They did point the finger at you?---Yes, they ask.
**** VINCENT LO XXN MR MARASCO
PN369
But when Mr Leary said to you go home at 6 o'clock, did you say why do I have to go home when I am meant to finish at midnight?---He said that because somebody's car, you are suspect.
PN370
So they said you are suspected of damaging someone's car?---Is correct.
PN371
Okay. Did you ever say to Mr Leary or Mr Ivett, I want to speak to the shop steward?---No, not - - -
PN372
You never asked to speak to the shop steward?---No. At that time I was - - -
PN373
Not at that time. That is fine, that is all I wanted to know.
PN374
So the next day, on the Friday, 5 March, you came into the factory with your daughter and your wife?---Yes.
PN375
Do you remember that?---Yes.
PN376
Great. Then that was the weekend, then the Saturday and Sunday, then Monday was a public holiday, wasn't it?---Yes.
PN377
Yes. You remember it being a public - it was a long weekend?---Yes.
PN378
Monday the public holiday. And it was a rostered day off on the Tuesday?---Right.
PN379
Yes. So you remember having a meeting again with Mr Leary on 10 March?---Until they ring me up, right.
**** VINCENT LO XXN MR MARASCO
PN380
Yes. When did they ring you to say come in?---During the following week, I don't exactly - which day.
PN381
That is all right. But you don't dispute that it was Wednesday, 10 March. Then do you remember that Rob, on 10 March, which is the Wednesday, Leary here, he asked you to bring in a written statement the next day. Do you remember that?---I don't know when was the date, but he said on the meeting, well, Rob Leary and shop steward, right, he said that you jot a few lines what happened on that day, what happened on that night.
PN382
Okay. So he said jot a few lines what happened that night?---Yes.
PN383
Yes. When did he ask you that, on Wednesday, the 10th?---I don't know the - - -
PN384
No, that is all right. You were asked to jot a few lines?---Yes.
PN385
When did you actually give Mr Leary the few lines that you jotted, that day or the next day?---When he asked me to jot a few lines, but the shop steward said it is because I am not so good at that time, I cannot think much, he said, the shop steward, asked Rob Leary can I bring it the next day.
PN386
Sure. So you brought this the next day, the Thursday, the 11th. So that was the day that you were sacked, the day that you gave this letter, the few lines and the diagram of where the cars are parked, the day you gave that to the company was the day you were sacked?---I don't know whether is the same day or not.
PN387
Right, okay. But you wouldn't dispute Mr Leary's evidence that he asked you to prepare it on Wednesday, the 10th, and you gave it to him on Thursday, the 11th, you don't say that is wrong?---What do you mean?
**** VINCENT LO XXN MR MARASCO
PN388
Because Mr Leary will say that he asked you on Wednesday, the 10th, to give you the statement, and that you gave it to him the next day?---I give to him the next day.
PN389
Yes, great. Okay. Can I just take you to that night in question, Wednesday, 3 March. Is it correct that you said to Michael, what's wrong? And he said, nothing?---You mean in the car park?
PN390
Yes, sorry?---You mean in the car park?
PN391
Yes, the car park. Let's go back to the car park that night. Michael said to you, what is the matter? And you said, nothing, nothing. Do you remember saying that?---Yes.
PN392
When do you say that you said to him - because you have said before to Maurice, that you said to him, oh, smoking again, no lunch - when did you say that to Michael?---When I saw him.
PN393
Before or after you said what he said to you, what is the matter?---I think after.
PN394
After. So what happened is that Michael said to you, what is the matter, and you said, nothing, nothing, then you said to him, smoking again, no lunch?---Yes.
PN395
Right. How well do you know Michael? Do you know how long he has worked at Varian?---Not over one year, he is new.
PN396
New?---Yes.
**** VINCENT LO XXN MR MARASCO
PN397
So he has only been there 11 months?---I don't know exactly how many months.
PN398
Sure. About a year though?---Yes, roughly.
PN399
Roughly a year. No, that is fair enough. And he works in a different section than you too?---Right.
PN400
Yes. When Michael says he heard a scraping sound like a key or a screwdriver, you know how Michael says that, he has heard a scraping sound of metal, that is what Michael says, did you hear a scraping sound?---No.
PN401
So you never heard a scraping sound?---You mean I hear?
PN402
Yes. Did you hear the scraping sound?---No, I didn't hear.
PN403
What sounds did you hear that night?---Same as every night, right, maybe I walk across it, maybe crack or something like that, because the car park there, there is leaves and dry branches, right. I come across and maybe step, that is the sound, and the birds, you know, the birds.
PN404
At 8.30, you could hear birds at 8.30?---Because the magpie, you know, the black and white one, ask for food, you know, they are hungry, because we usually there, the birds come, right.
PN405
But it is night at this time, isn't it?---Yes.
PN406
The birds come at night?---Yes. You can - well, you don't believe, you can go there and see.
**** VINCENT LO XXN MR MARASCO
PN407
No, that is all right?---It is grey and white.
PN408
They were magpies, were they, the black and white birds?---I think it is the magpies or something like that.
PN409
They weren't bats?---No.
PN410
The bats that fly at night?---No, not bat. The birds, the black and white one, you know, like the football team, the magpies, or something like that, that kind of bird, quack quack quack, like that.
PN411
So you could hear the sound of the birds?---Yes.
PN412
And you could hear the sound of the leaves as well because you were walking on the leaves near your car?---Yes.
PN413
Right. Is it possible that you could have accidentally scraped Eddie's car?---No, I don't think so.
PN414
You went and parked your car. What type of car do you drive?---Just an ordinary sedan.
PN415
Yes. What make is it, a Ford or Holden?---It is a Nissan.
PN416
A Nissan. Approximately how old is it?---It is over 10 years.
PN417
Over 10 years old. And do you lock it with a key?---Yes.
**** VINCENT LO XXN MR MARASCO
PN418
Yes. When you were walking back to the table did you still have the keys in your hand?---Because I take it from the car lock.
PN419
Yes. So you locked your car?---Yes.
PN420
And you had your keys in your hand as you walked by Eddie's car?---I don't have to lock the key, I just press the button there.
PN421
Okay. So what did you do with the keys though? Obviously you took the keys out of the ignition?---Yes.
PN422
When you locked the car did you still have the keys in your hand?---Yes.
PN423
Yes. So you walked alongside Eddie's car, and you were still holding the keys?---Yes.
PN424
Yes. And so you walked along Eddie's car and you could have accidentally maybe scraped it?---No way this.
PN425
No. But you still were holding the keys?---Yes.
PN426
Did you put the keys on the table then when you ate your lunch? What did you do with the keys?---I put the key in the pocket.
PN427
All right. So you put the keys in the pocket.
PN428
THE SENIOR DEPUTY PRESIDENT: Do you have your keys on you now?---Yes.
**** VINCENT LO XXN MR MARASCO
PN429
Can I have a look? That is the car key, that one?---Yes.
PN430
What is this one?---This one I don't use. It is a lock bar, you know, the bar to lock the car.
PN431
For the steering wheel?---Yes.
PN432
Did you put the steering lock on your car?---No need.
PN433
No need?---Because this in the company car park, because you need the key to go in, right. If I park in the street, yes, I would use that.
PN434
Anybody want to have a look at the car key?
PN435
MR MARASCO: The company did do that as far as their investigation the day after the incident.
PN436
THE SENIOR DEPUTY PRESIDENT: Is that a convenient time, Mr Marasco?
PN437
MR MARASCO: Yes, it probably is, your Honour. I have just got a few more questions, but it may be best if we adjourned, if that suits you.
PN438
THE SENIOR DEPUTY PRESIDENT: How long do you think you might go for?
PN439
MR MARASCO: Maybe another 10 to 15 minutes.
**** VINCENT LO XXN MR MARASCO
PN440
THE SENIOR DEPUTY PRESIDENT: Okay, I will adjourn. I will adjourn this matter until 2 o'clock.
LUNCHEON ADJOURNMENT [1.07pm]
RESUMED [2.13pm]
VINCENT LO:
PN441
THE SENIOR DEPUTY PRESIDENT: Mr Marasco?
PN442
MR MARASCO: Thanks, your Honour.
PN443
Mr Lo, you have got the documents in front of you. I was just wondering if you could be so kind as to look at Mr Leary's statement, and look at attachment E. You have got that in front of you there? Yes, that is the one. You were talking about a document that you received that you had at home, that said you caused damage to Eddie's car. Is that the document you mean? Just take a minute to read, if you like, take your time reading carefully?---Yes. What is the question again?
PN444
My question is, is this the document you were talking about before lunch that was given to you by Mr Leary?---Yes.
PN445
That is, you remember being given that document by Mr Leary?---Yes.
PN446
And do you remember being asked to sign the document at the end?---No, I didn't sign.
**** VINCENT LO XXN MR MARASCO
PN447
I know you didn't. But Mr Leary asked you to sign, and you said no, I won't sign?---No, he didn't ask me that question.
PN448
He didn't ask you to sign the document?---No.
PN449
Because Mr Leary's evidence will be that he asked you to sign it, but you said no, you wouldn't sign?---Because this document is handed to the shop steward, and they pass around, right, pass around. They didn't ask me to sign, nobody asked me to sign.
PN450
Okay. Do you remember that they asked Peter to sign?---I don't remember them asking this.
PN451
You don't remember. That is all right. Do you remember Ian and Ken, whether they were asked to sign - or Ian, rather, he was there?---I can't remember whether they asked them to sign or not.
PN452
Sure. You remember that meeting taking place on 11 March, is that date correct? That document is dated 11 March, that date is correct?---Yes, I think so.
PN453
Yes. Then halfway down the page, Mr Lo, it says:
PN454
The company decided to proceed with the termination because after a thorough investigation of the matter all the evidence received indicates that you caused the damage to Eddie Yam's vehicle on 3 March '04.
PN455
You can read that, Mr Lo, you see that there?---Yes.
**** VINCENT LO XXN MR MARASCO
PN456
Yes. Do I understand that your evidence is, the first time you were told that you had damaged Eddie's car, when you received this document?---You mean before I received this document, or after?
PN457
When did the company first accuse you of damaging Eddie's car, when did they mention that the car damaged was Eddie's?---I think this on the first meeting, but he didn't say the name.
PN458
Whose name, Eddie's name?---He didn't say the damaged car, the owner of the damaged car's name.
PN459
Sure. When did you first know it was Eddie's car that was damaged?---When I received this one, because it written there, I see it.
PN460
Okay. So the first time you knew that it was Eddie's car that was damaged was when you were given this document?---When I received this document I know. Before that I don't know whose car is it.
PN461
Right, okay. Thank you. Can I ask you now to turn to your statement number G again, which is just a couple of pages over. Now, without looking at that yet, can I just take you back to that night in question. Remember how you were walking alongside your car, and Michael is sitting on the ground, that is correct, isn't it, Michael was sitting on the ground, you saw Michael smoking a cigarette, sitting on the ground?---Not from the beginning, but almost finish walking.
PN462
Yes, after you had finished walking past Eddie's car you saw Mr Ristevski, Michael, sitting on the ground smoking, that is correct, isn't it?---Yes.
PN463
Right. And he said to you, what's the matter? And you said, nothing, nothing. Do you remember that, Mr Lo?---Yes.
**** VINCENT LO XXN MR MARASCO
PN464
And then you went up to him and put your hands on his shoulders like that?---I just tap him like that.
PN465
Tap him like that?---Yes.
PN466
Did you massage him like that?---No, I don't do massage. I don't know how to massage. Massage is a special skill, right.
PN467
Well, did you rub his shoulders like that? Let's not say massage?---Like that.
PN468
Just like that?---Yes.
PN469
So you went and you tapped his shoulders like that?---Yes, so like that.
PN470
And then you walked off. Because Michael, his evidence will be that you actually rubbed his shoulders like that. Is Michael wrong when he says that?---Well, I didn't know what he said, right, but my hands are touching on his shoulders. I don't know what he said, right. What you call, you can say this, you can say that, but my hands like that.
PN471
But just a soft touch like that, or did the hands stay there a while?---Just like that.
PN472
Just like that?---So like that.
PN473
Because Michael will say - I am obliged to tell you what Michael will say in his evidence. He will say that you actually rubbed his shoulders like that.
**** VINCENT LO XXN MR MARASCO
PN474
MR ADDISON: Can I just interject at this point in time, your Honour. I just want to clarify from my friend whether he is indicating to this witness that Michael will be changing his evidence. Because his evidence in his witness statement at paragraph 6 doesn't indicate that at all. His witness statement, paragraph 6, simply reads:
PN475
He came over and put his two hands on my shoulder. I said to him, what's the matter?
PN476
I don't know whether my friend is indicating that there will be a change in evidence, so I would seek some clarification.
PN477
MR MARASCO: Well, I don't know if he is changing his evidence. I think he still maintains that Mr Lo put his hands on his shoulder, but, as he indicated this morning, I think he said he rubbed them as well. I just wanted to sort of find out what exactly happened.
PN478
Had you ever put your hands on Michael's shoulders before?---No.
PN479
No. You had never had reason to go up to him before?---Maybe sometimes we talk outside.
PN480
Yes, you talk outside?---Yes.
PN481
What would you talk about?---I can't remember, just usual things, you know, just the social talk.
PN482
Yes, sure. Do you often eat your lunch outside on that table?---Yes.
**** VINCENT LO XXN MR MARASCO
PN483
Or do you eat inside in the canteen?---I usually eat outside.
PN484
Because you can smoke outside at that table, can you?---Yes.
PN485
Can you smoke in the canteen?---No.
PN486
So if you want a smoke you have to go outside?---Right.
PN487
And Michael smokes as well, doesn't he?---Yes.
PN488
Yes. So would you often see him outside?---Yes.
PN489
Yes. And you never went up to him before and touched his shoulder?---Because I sit there, he not always sit there, right, he not always sit there, the concrete there, right.
PN490
Where else would he sit then, where else would you see him?---Usually sometimes he sit in his car, right, he sit in his car, but is not near the place where I take my lunch.
PN491
Sure, okay.
PN492
THE SENIOR DEPUTY PRESIDENT: Had you ever seen him sit where he was before? When he was sitting that night, had you ever seen him sit there before?---Sit at that same spot?
PN493
Yes?---No.
**** VINCENT LO XXN MR MARASCO
PN494
MR MARASCO: Michael will say that when you saw him you were shocked, and got a fright. That is true, isn't it?---Yes.
PN495
You were very shocked?---Of course. I see something moving, of course, because something moving in the dark, we don't know what happen, of course.
PN496
But Michael also says at his statement that he heard a scratch like metal on duco, like a key or screwdriver. You never heard such a sound?---No.
PN497
No. Can you tell her Honour why you think - do you think Michael is making that up then?---This I don't know.
PN498
Is there any reason why Michael would make it up?---Because I have no idea what.
PN499
So you are not saying to the Commission, Michael would make this up because he doesn't like me?---No, I wouldn't.
PN500
No, there is no further questions, your Honour.
PN501
THE SENIOR DEPUTY PRESIDENT: Mr Lo, you have got the statement of Mr Leary there, attachment G, can you see attachment G?---Yes, is that.
PN502
Is that your handwriting?---Yes.
PN503
And do you write with your right or your left hand?---I use my right hand.
PN504
And, Mr Lo, how old are you?---59.
**** VINCENT LO XXN MR MARASCO
PN505
59?---Yes.
PN506
Mr Addison?
PN507
PN508
MR ADDISON: Vincent, can I just take you to attachment J. If you keep flicking through you will come to attachment J, which is a typed, it is the next typed document. Come back to G, and then just start flicking this way Vincent. Okay, attachment G. They are file notes that were taken. I just want to take you to the first part of that. You will notice on 4 March, which is the first entry. I understand that Mr Leary will be giving evidence that these are his file notes of the investigation. He says at that first paragraph which refers to the first meeting you had with , Rob and yourself, and John, I think, that reported that Eddie Yam's car had been keyed the night before at around 8.40 pm, and that the incident had been witnessed by Michael from the machine shop. On hearing this incident, Rob went out to inspect the damage with John and . Now, you were at that first meeting, weren't you?---Yes.
PN509
Do you recall saying that the car in question was Eddie Yam's?---No, didn't say that.
PN510
Didn't. Are you sure didn't say that?---Say all that.
PN511
Is it possible said that, but you didn't hear it?---No. Charlie doesn't mention whose car.
PN512
I have nothing further, your Honour.
**** VINCENT LO RXN MR ADDISON
PN513
PN514
PN515
MR ADDISON: Peter, can you repeat your full name and address please?---Peter John Abrahamson, 45 Pridham Street, Maribyrnong, 3032.
PN516
And have you prepared a witness statement for this matter?---Yes, I have.
PN517
Can I hand you a copy of a witness statement. Can I ask you to have a look at that witness statement and indicate whether that is the witness statement that has been prepared for this matter?---Yes, that is the statement that I made.
PN518
Do you wish to make any changes to that witness statement?---Yes, in regard to paragraph 4, which states that Mr Lo was an employee of Varian with nearly 15 years service, with no prior breaches of misconduct, serious or otherwise. I would like to change that. There was a previous instance of a written warning. At the time I was aware that there was a warning given for a violation in terms of a smoking violation, but I wasn't aware as to the seriousness of the nature of the response from the company.
PN519
Okay. So if we delete, with no prior breaches of misconduct, serious or otherwise?---Yes.
PN520
Apart from that change are there any other changes that you wish to make?---No.
PN521
Apart from that change is the contents of the witness statement true and correct?---Yes, they are.
PN522
**** PETER JOHN ABRAHAMSON XN MR ADDISON
PN523
MR ADDISON: Peter, you are an official with the AMWU?---Yes.
PN524
And how long have you been responsible for the Varian site?---Since September 2000, which is approximately three and a half years.
PN525
Three and a half years. Can I take you down to the penultimate paragraph on the first page. You say that there is a history of scratching of cars in the past?---Yes.
PN526
How far back does that history go, to your knowledge?---A large number of years, quite a large number of years. I would not know the exact number of years, but there has been a number of years involved.
PN527
And has there been discussion of that problem by the union members, by yourself with management?---To the best of my recollection I have had meetings with the company, I think on two occasions where it has come up as part of a broader range of discussion of other issues, and the issue of scratching of cars has come, and to the best of my recollection there have been two mass meetings where I have addressed other issues, and the issue of car scratching has come up, and I have reiterated my position in regard to the car scratching at both of those meetings, mass meetings.
PN528
And what is that position?---That if anybody is caught wilfully damaging another employee's car, then they will get no support from me or from the union, and that anybody that has been wilfully damaging a car should pull their heads in and stop it forthwith, and I don't want to see any sort of repercussions or recurrence of any cars being scratched in the future, and they will receive no support from myself or from the union if they are caught.
PN529
Now, you said that you had said that on two occasions at mass meetings?---Yes.
**** PETER JOHN ABRAHAMSON XN MR ADDISON
PN530
Can you tell us, I know it is going to be difficult, but approximately when those mass meetings were?---Approximately over the last three years. I believe that the first one would have come up during the course of finalisation of the enterprise bargaining in 2000, and the second one would have been possibly 12 months after that, in 2004 - sorry, 2001.
PN531
So 2000 and 2001?---Yes.
PN532
You are familiar with the plant?---Yes, I am.
PN533
Are you familiar with the layout of the car parks?---I have a general sort of, general understanding, yes.
PN534
Are the car parks secure?---They are secure to the extent that you need a pass to enter the car parks, but apart from that, no, they are not secure.
PN535
So would it be possible for non Varian employees to gain access to the car park?---Yes, it would be, yes.
PN536
Would it be possible for little kids to gain access to the Varian car park?---Yes.
PN537
Now, moving on from that, if I can take you to 11 March. I believe from your witness that was your first involvement with regard to this matter?---Yes, that is right.
PN538
And you attended a meeting, I think at 10.15 on that morning?---About approximately 10.15, yes.
**** PETER JOHN ABRAHAMSON XN MR ADDISON
PN539
Can I ask you to tell the Senior Deputy President what happened from your recollection of that meeting on the 11th?---I attended a meeting. I was called into Varian by Ken Selim, the senior delegate at Varian, because there was an issue that he felt uncomfortable about dealing with, and he required my assistance. The meeting was scheduled for 10 am, and the meeting was conducted with John Ivett, Rob Leary, Ken Selim and Vincent Lo, and Ian Freeman came in about two or three minutes later, another delegate at Varian. The meeting was called in regard to a disciplinary matter in regard to car scratching, and the accusation against Vincent Lo. Vincent had been asked on a previous to - well, previous day or previous days, to provide a written statement as to his interpretation of the events, which Vincent tabled. Ian Freeman picked up the copy of the statement and then proceeded to leave the meeting and make duplicate copies for all in attendance so we could all read the written statements. There was discussion between myself and Rob Leary and the delegates as to the substantive nature of the accusation against Vincent Lo. My argument was that there was nothing substantive in what was being put forward, and I asked if the company had carried out a thorough investigation of the matter, which included questions such as, did the company carry out a scratch test to determine whether or not a scratch along a piece of sheetmetal, painted sheetmetal could be heard in the vicinity of where the witness was sitting, were the alleged scratches consistent with other scratches around the rest of the car? I asked if the time of the scratch, alleged scratching was consistent with the past history of scratching cars at Varian. The company then requested a short break where they were to consider their position, and they came back after about five or 10 minutes and issued a statement that Vincent Lo was going to be summarily dismissed. Once again there was discussion and negotiations around the substantive nature of the accusations and the evidence that was presented by the company. I once again reiterated that it was all based on the fact that one person had heard a noise which sounded like a scratching noise, and I didn't think that that was substantive enough to warrant dismissal. The company said that they had very good evidence to back up their reasons for summarily dismissing Mr Lo. They then allowed me to read the witness statements, the handwritten witness statements of the two witnesses, which they said that I could read them but the delegates could not read them. I read them, and once again said that the statements were unsubstantive, that it was only based on an allegation - sorry, a report that someone heard a scratch sound noise, and that was the only evidence that they could come up with in terms of that. The meeting then concluded, and I proceeded to discuss the matter with the delegates and Mr Lo.
**** PETER JOHN ABRAHAMSON XN MR ADDISON
PN540
In terms of the handwritten statements, I think you have got one of the company's witness statements there, Mr Leary's witness statement there, if it was left in the box by Mr Lo. Have you?---Yes.
PN541
Can I take you to attachments H and I of that witness statement. They are two handwritten documents?---Yes.
PN542
Are they the documents that the company allowed you to read at the concluding part of that meeting?---Yes, they are.
PN543
And the company informed you that it based its termination on those two documents, is that correct?---Essentially, yes.
PN544
Now, could I take you back one step to attachment G?---Yes.
PN545
Do you recognise that document?---Yes. That is the document that Vincent Lo presented to the company.
PN546
Okay. Now, you say that Mr Lo presented this document to the company, what, at the beginning of the meeting?---Yes.
PN547
And one of the delegates then took it off and had it photocopied so everybody had a copy. Were there any particular questions that the company had with regard to this document?---Yes. They asked whether or not Vincent had massaged Michael Ristevski's shoulders, and asked why that had been left out, and there was some discussion between Mr Leary and Mr Lo as to whether or not the massaging occurred.
PN548
Okay. Was there any other questions asked with regard to that document?---Not to the best of my recollection, no.
**** PETER JOHN ABRAHAMSON XN MR ADDISON
PN549
Was it put to Mr Lo in your presence that the diagram describing the route, if you like, that Mr Lo says he took from his car to the back of Eddie's car, was it put to him that that was incorrect?---No.
PN550
Was it put to him that he walked across the front of the vehicles and then proceeded to scratch Eddie's car?---No, not in that terms, no, not in those terms, no.
PN551
Was it put in any terms that could possibly constitute that allegation being put to Mr Lo?---No. Mr Lo was not directly asked whether or not he scratched the car, or not.
PN552
Okay. Now, this document does not - sorry, let me withdraw that and try that again. The document, attachment G, simply describes a series of events, does it not?---Sorry, the document G?
PN553
It just describes a series of events?---Yes.
PN554
Was an alternative series of events in any way put to Mr Lo?---No. There was mainly discussion. It was rather a brief meeting that only lasted for approximately half an hour, with a break by the company to determine their position, and the main discussion was between myself and Mr Leary, and with the occasional interjection of the shop stewards.
PN555
As I understand it, the meeting started at about 10.15?---Approximately 10.15, 10.20.
PN556
As I understand your evidence, there was a period of discussion?---Yes.
PN557
That the document, attachment G, was photocopied?---Yes.
**** PETER JOHN ABRAHAMSON XN MR ADDISON
PN558
That it was then distributed?---Yes.
PN559
There was then some specific discussion, then the meeting broke. How long was that specific discussion between the photocopied versions of attachment G being distributed, and the break?---10 to 15 minutes.
PN560
10 to 15 minutes?---How long was the break?---10 minutes.
PN561
And on resumption of the meeting, immediately following the break what occurred?---On resumption of the meeting the company, Mr Leary and Mr Ivett came back and indicated that their decision was to summarily dismiss Mr Lo. We discussed the matter. I said it wasn't warranted, it was unsubstantive, that they had no real evidence. They then proceeded to allow me to read the two written statements by the two witnesses, H and I, and once again I reiterated that it was unsubstantive, that there was no basis for the termination. And they said that was their position, and that was it. So it was only a matter of five, once again, five or 10 minutes at the most, 10 minutes at the most.
PN562
Was there anything put to the company about Mr Lo's years of service?---Not to my recollection.
PN563
Was there anything put to the company that Mr Lo had a clean employment record with the exception of one warning?---I think I actually did point that, I think I did actually point that out, that his years of service, and that he had no prior history. And that is when it came up that he had received a warning over a smoking incident a few weeks ago, a few weeks prior, but I wasn't made aware that it was a first and final warning.
PN564
At which point in the meeting did you put that to the company?---That was at the beginning of the meeting. It was at the beginning of the meeting, yes.
**** PETER JOHN ABRAHAMSON XN MR ADDISON
PN565
No further questions, your Honour.
PN566
PN567
MR MARASCO: Mr Abrahamson, you have talked about sort of the keying incidents in the past and what the union's point of view is in relation to keying cars, how they will have no support from you or the union. What is the union's position about employees that smoke in a no smoking area? Is that viewed as serious, warranting dismissal or a warning?---I suppose it depends on the circumstances. There are different no smoking venues, and it just depends on the past practice and the past procedures of the company in question.
PN568
Yes. So you are aware that Mr Lo received a final warning for smoking in a no smoking area?---I am once I received the statements, yes.
PN569
Yes. Because he never - when Mr Lo received that final warning he never contacted the union for assistance in that issue, did he?---Apart from the shop stewards at Varian, no. He didn't contact myself.
PN570
Right, yes. And you would say therefore that the warning was justified in those circumstances?---Mr Lo accepted the written warning, so I accept that fact.
PN571
Sure. How long have you worked for the AMWU?---Three and a half years.
PN572
Right. And where were you before?---At John Fairfax, The Age newspaper.
PN573
Right, okay. In your experience in industrial relations, would you say that the company has done a sufficient investigation into the scratching incident?---No.
**** PETER JOHN ABRAHAMSON XXN MR MARASCO
PN574
Why not?---Because a number of tests that I asked for hadn't been carried out, that I asked if they had been carried out, hadn't been carried out. The short duration of the meeting that I had with the company. The fact that the delegates weren't present at the interviews with the other witnesses of the company.
PN575
Why is it necessary to have the delegates present at interviews with the witnesses?---The delegates were - sorry, the other witnesses were union members, and should have been accorded the right to have a shop steward present, as with Mr Lo should have been accorded the right or been given the advice that if they so required, should have had a shop steward present, or a witness present.
PN576
Sure. Let me stop you there. The incident happened on Wednesday, 3 March. Mr Lo was first approached about the incident on Thursday, 4 March, at the commencement of his afternoon shift. It is correct that the two shop stewards had gone home at that time?---No, I couldn't answer that.
PN577
Mr Leary will give evidence to say the two shop stewards had gone home. They were on day shift, they had left. Mr Lo arrived for his afternoon shift on Thursday, the 4th, at 3.30. That is when he was first spoken to about the incident, and he was suspended on full pay?---Well, if the delegates were on day shift, which they were, and their normal knock off time was, say, 3.30, and they did not work overtime, then I am under the assumption that they did go home at their prescribed time. However, in my opinion the company had the whole day to decide that they were going to interview Mr Lo, and could have asked one of the delegates or a delegate to stay back and to assist Mr Lo, if that was required, if Mr Lo did actually require a witness or someone present to assist him.
PN578
Sure. But it is correct, isn't it, that Mr Lo was interviewed in three separate days, Thursday, 4 March, Wednesday, 10 March, Thursday, 11 March, that is correct, isn't it?---Yes.
**** PETER JOHN ABRAHAMSON XXN MR MARASCO
PN579
MR ADDISON: Your Honour, that is a misleading question. There is no evidence to suggest there was any interview in terms of a meeting on 10 March. The only evidence so far is that there were two meetings with Mr Lo, one was on the 4th, and the second meeting, if we exclude the meeting where Mr Lo's wife spoke to the managing director on the 5th, the second meeting was on the 11th. There was a telephone call on the 10th, and nothing more, your Honour. So I say that is a misleading question.
PN580
MR MARASCO: Well, Mr Leary will give evidence that there was a meeting on the 10th, and it is even referred to in Mr Freeman's witness statement, when he says:
PN581
On Wednesday, 10 March, Rob rang Ken and said he asked Vince to come in at 3 pm to have a talk, and to bring his safety shoes ready to work if needed. Vince, Ken and I went to Rob's office, where he told us he can't make a decision today because he needs to talk to his manager and Michael and Eddie. He asked again if we could come to the meeting, and Rob said okay. He told Vince to come the next day at 9 am.
PN582
MR ADDISON: Exactly. He told Vince to come the next day at 9 am.
PN583
MR MARASCO: But Vince is at that meeting too, on the 10th.
PN584
MR ADDISON: There was no meeting on the 10th.
PN585
MR MARASCO: That is what Mr Freeman, in his statement, says that. And Mr Selim says:
**** PETER JOHN ABRAHAMSON XXN MR MARASCO
PN586
On Wednesday, 10 March 2004, Vince had rang me to say that Rob had called him and told him he wanted a written statement, and that he should come in. Vincent told Rob he wanted me present. Vincent arrived with Ian and myself at Rob's office. Rob asked Vincent if he had his statement written to give them. I answered for him and said that I had told not to at least until we spoke to Peter Abrahamson. They said he was to go home and be back for a meeting at 9 am. I said make that 10.15 am. And when asked why, I told them so I had time to get Peter in.
PN587
Then they refer to on Thursday, 11 March.
PN588
MR ADDISON: Well, your Honour, in my submission that is correct, there certainly was a telephone call. I think it is referred to in Mr Leary's witness statement at point 11. At point 11 of Mr Leary's statement, he says:
PN589
On 10 March I rang Mr Lo at home and asked him to attend Varian at 3.30 pm the next day for a further meeting.
PN590
The evidence at this point in time is that there was no meeting on the 10th, or if there is some cryptic reference to that, this witness is not in a position to answer that question anyway. The witness has already given evidence-in-chief that his first involvement was on the 11th.
PN591
THE SENIOR DEPUTY PRESIDENT: What do you want to ask again, Mr Marasco?
PN592
MR MARASCO: Peter, you were first involved on 11 March. Were you aware that the delegates had been involved in meetings with Mr Lo on Thursday, 4 March, and Wednesday, 10 March?---I am aware that the delegates told me that they had one meeting with the company, or had one discussion with the company over the matter.
**** PETER JOHN ABRAHAMSON XXN MR MARASCO
PN593
So the delegates told you they only had one discussion with the company?---To the best of my recollection, yes.
PN594
So Mr Selim and Mr Freeman are not telling the truth in their witness statements then, when they talk about a meeting on Wednesday, 10 March, and another one with you on Thursday, the 11th?
PN595
MR ADDISON: Your Honour, that is a misleading question. The delegates refer to the first discussion with the company being on the 10th, to organise the meeting for the 11th. So it is a misleading question. It is not that they are not telling the truth. It is quite clear that there was no delegates present on the 4th.
PN596
THE SENIOR DEPUTY PRESIDENT: Mr Marasco, there is obviously a difference between yourself and Mr Addison over the words of the witness statement, at least of Mr Freeman. Until Mr Freeman gives evidence, it may be better if you rely on your witnesses, witness statements.
PN597
MR MARASCO: Yes, sure. Can I just have a minute please, your Honour?
PN598
I might just take you maybe to the meetings that you were involved in, Mr Abrahamson, because you have given evidence that the delegates told you they have met before with the company. We will leave that to one side. You weren't there. I just want to talk about the meeting you were involved in. At the meeting on Thursday, 11 March, were you under the impression that Mr Lo knew that he was accused of scratching Eddie Yam's car?---He was aware that he was accused of scratching a car. Whether or not he was aware of the person's name of the car, is something I could not answer.
PN599
Did you know whose car it was that he was accused of scratching?---No, I didn't know the name of the person at that particular time. Names were tendered in terms of the discussion once I received the handwritten statements by Mr Ristevski and Mr Yam, yes.
**** PETER JOHN ABRAHAMSON XXN MR MARASCO
PN600
So at the time you read the statements you knew then what the accusations were?---Yes.
PN601
Was Mr Lo clear on what the accusations were against him?---He was clear that he was accused of scratching a car. Whether or not he knew that he was accused of scratching Mr Yam's car, is another matter which I couldn't answer. He wasn't allowed to read the other witness statements, so therefore he would not have been aware of the name of the person.
PN602
So he wasn't given a copy of those statements at that meeting on the 11th?---No. Only I was given a copy, and I was only given a copy to read, which I handed back.
PN603
At that meeting that you were involved in on the 11th, was Mr Yam - sorry, Mr Lo was definitely given the opportunity to present his version of events, wasn't he?---Yes.
PN604
He certainly could present that statement that day, his attachment G?---G.
PN605
Yes. And you had the opportunity to put forward reasons why he shouldn't be dismissed?---Yes.
PN606
You referred to his length of service, and that he only had one misdemeanour?---Yes.
PN607
And when you prepared your statement you forgot about the misdemeanour for smoking?---Yes, I did, because I wasn't aware of the seriousness of the disciplinary action.
PN608
Right. We have got no further questions, your Honour.
**** PETER JOHN ABRAHAMSON XXN MR MARASCO
PN609
THE SENIOR DEPUTY PRESIDENT: Mr Addison?
PN610
PN611
MR ADDISON: Peter, you have just given an answer to a question with regard to the witness statements of Eddie and Michael. Did Mr Lo read those witness statements on the 11th?---No, he did not.
PN612
Did the company offer or put the contents of those witness statements to Mr Lo?---No, they did not.
PN613
Did they read the specific allegations contained within those witness statements to Mr Lo?---No.
PN614
Nothing further, your Honour.
PN615
MR MARASCO: There is something just arising out of that briefly.
PN616
MR ADDISON: Well, I would object to that, your Honour. It is most unusual.
PN617
PN618
MR MARASCO: Can I take you to attachment J, which is those handwritten notes of Mr Leary?---Yes, I read them yesterday.
**** PETER JOHN ABRAHAMSON FXXN MR MARASCO
PN619
Yes. If we go down to the entry for 11 March?---Yes.
PN620
Is that a correct version of events about what happened in that meeting?---Generally speaking, yes, that is correct.
PN621
Yes. And just one last thing. The last paragraph, it is six lines from the bottom on that first page, the entry of 11 March, it reads:
PN622
Rob advised those present that the company had a written statement from one employee, Eddie, saying that his car was damaged at work at 3.3.04, and another written statement, Michael, which said that he saw Vincent walk past the vehicle at the same time he heard a scratching sound on metal.
PN623
That was correct?---Yes.
PN624
So that was said?---Yes.
PN625
Right. I have no further questions.
PN626
PN627
MR ADDISON: You have just confirmed that that is correct. Were the names mentioned, Eddie and Michael?---Not to my recollection, no.
PN628
And were the contents of those witness statements provided either physically to Vincent, or were they read to Vincent?---No, they weren't.
**** PETER JOHN ABRAHAMSON FRXN MR ADDISON
PN629
Thank you. Nothing further, your Honour.
PN630
PN631
THE SENIOR DEPUTY PRESIDENT: Mr Addison?
PN632
MR ADDISON: Yes, your Honour. Your Honour, I wonder if I could just take a couple of minutes just to get some - no, I will persevere.
PN633
THE SENIOR DEPUTY PRESIDENT: I am happy to give you a couple of minutes so long as it doesn't turn into a smoko.
PN634
PN635
MR ADDISON: Ken, can you repeat your full name and address for the transcript please?---Kenneth Lesley Selim, 23 President Road, Narre Warren South.
PN636
And have you prepared a witness statement with regard to these proceedings before the Commission?---I have, yes.
PN637
Can I hand you a copy of a witness statement. Can you have a look at that statement and tell her Honour whether that is the witness statement you have prepared or not?---Yes, that is right.
PN638
Do you wish to make any changes to that witness statement?---No.
PN639
And is it true and correct?---Yes.
PN640
PN641
MR ADDISON: Ken, just a couple of matters. First of all, how long have you been employed at Varian?---30 - it was broken service, but it is 35 years all up, I think.
PN642
35 years all up. So you are quite familiar with the place?---I think I know the place more than most of them.
PN643
Okay. Are you familiar with the car parking arrangements?---I park my car there every day, so I must be, yes.
**** KENNETH LESLEY SELIM XN MR ADDISON
PN644
Okay. Now, is the car park secure?---Yes and no. Secure as you wouldn't be able to drive your car through the gate at any time you want. If you wanted to get in the car park you could slide yourself underneath the gate if you want, jump the fence, whatever, but secure as a car park can be, yes.
PN645
Would the local kids, for example, be able to get into the car park?---They could.
PN646
Yes. And the second matter I just want to take you to. You should have a copy of a witness statement there, it is a witness statement of Mr Leary. Can I take you to paragraph 10 of that witness statement of Mr Leary?---I will find it.
PN647
It is paragraph 10, which is on the second or third page?---Where am I looking?
PN648
I think that is Mr Leary's there, yes?---Yes, okay, paragraph?
PN649
Paragraph 10. He will say that - recorded there it says:
PN650
Later that day the shop stewards Ken and Ian came to see me about the incident, and we briefly discussed it.
PN651
Now, paragraph 10 refers to a discussion on 10 March, which is the day before the termination interview, which was 11 March. Do you recall having a discussion with Mr Leary on the 10th, Wednesday, 10 March?
PN652
MR MARASCO: That is not what Mr Selim's statement says. Maybe we can ask him to clarify what the second paragraph on the second page.
**** KENNETH LESLEY SELIM XN MR ADDISON
PN653
MR ADDISON: If you are objecting, object.
PN654
MR MARASCO: This is the 5th, it begins here, after the incident. That happened on the 5th. The 10th is there. That is the 10th, that is the 5th.
PN655
MR ADDISON: I do apologise, I am confusing you and myself. Let me take you to paragraph 11, where I meant to go, not paragraph 10. On 10 March 2004, Mr Leary says he rang Mr Lo at home to attend Varian at 3.30 pm the next day for a further meeting. Now, in your statement you say, on the second page, two thirds of the way down on the page, you say:
PN656
On Wednesday, 10 March 2004, Vincent rang me to say that Rob had called him and told him he wanted a written statement, and that he should come in. Vincent told Rob he wanted me present. Vincent arrived with Ian and myself at Rob's office. Rob asked Vincent if he had his statement written out to give to them. I answered for him and said that I had told him not to, at least until we spoke to Peter. They said to go home and come back at 9 am.
PN657
So did Vincent come in on 10 March, which is the day before the termination interview?---The Wednesday.
PN658
The Wednesday?---Yes.
PN659
How long was he there?---It was a short meeting, because once Rob realised and John realised that there was going to be no written statement, they sent him home.
PN660
So was there any discussion with Vince on the Wednesday?---They just asked him if he had anything further to add on the whole matter, and that was about it, I think.
**** KENNETH LESLEY SELIM XN MR ADDISON
PN661
Did Vincent give his written statement - and if I can take you to the attachments to that witness statement, if you go to attachment G. I am sure you are familiar with it?---Yes.
PN662
Attachment G is the written statement of Vince. Was that given to the company on the 10th?---No.
PN663
No?---That was given to him on the day that he was dismissed.
PN664
Okay. So that was handed over to the company on the 11th?---Yes.
PN665
And how long would you say the discussion on the 10th lasted?---On the Wednesday, I am just trying to recall the discussion, because - I wouldn't know. They were all short meetings anyway, every one of them.
PN666
When you say a short meeting, what are you talking about, two minutes, five minutes?---Five or 10 minutes.
PN667
10 minutes?---Yes.
PN668
Did Vincent say anything at that meeting?---The only thing Vincent said at any meeting, that he had nothing further to add, and he hadn't done it. That was at most meetings.
PN669
Specifically on the 10th, did Vincent speak at that meeting?---I am just trying to think. The 10th - - -
PN670
That is the Wednesday afternoon?---Yes. I can't think.
**** KENNETH LESLEY SELIM XN MR ADDISON
PN671
You can't recall?---No, I can't recall.
PN672
No further questions, your Honour.
PN673
PN674
MR MARASCO: Mr Selim, have there been incidents of cars being keyed in the car park before?---Yes, heaps of them.
PN675
Heaps of them?---Heaps of them.
PN676
How many is heaps?---Well, I can recall my car being scratched about 30 years ago.
PN677
Anything more recent than 30 years ago?---Yes. Last year, I think it was last year was probably the latest one.
PN678
Who is that, Mr Jarek Zeman's car?---Robin, whatever his name is, Robin Mercyzk or whatever.
PN679
We don't need to know names, that is all right.
PN680
Well, that guy had his car scratched several times. He is a day shift employee. Obviously there has been others.
PN681
Has anyone ever been caught?---Not to my knowledge.
**** KENNETH LESLEY SELIM XXN MR MARASCO
PN682
Putting aside the Lo incident?---Not to my knowledge.
PN683
No one has ever been caught. Has there been any firm proof that it is employees of Varian doing it to other employees?---I wouldn't say firm proof, just people surmising, I guess.
PN684
People?---People surmising.
PN685
Surmising. So people would assume that it would be other employees scratching the cars rather than kids from the street?---Well, you assume that because we are there during school hours anyway, so you wouldn't imagine.
PN686
Yes, sure. Were you aware of the incident of Mr Zeman's car being scratched? Was that brought to your attention?---I had heard about it.
PN687
Yes. And do you know when it happened?---I wouldn't have a clue.
PN688
But you wouldn't dispute that it happened on night shift approximately a year ago?---I wouldn't dispute it one way or the other.
PN689
Sure. Can I take you to your statement. Do you have that in front of you?---Yes.
PN690
I just want to try to get the chronological order right, because I think the statements have been done in a hurry because we haven't had a lot of time to prepare them, I just want to make sure that we all agree. We agree the incident happened on Wednesday, the 3rd?---Yes.
PN691
That is correct, isn't it, the alleged incident?---Yes.
**** KENNETH LESLEY SELIM XXN MR MARASCO
PN692
That the company is relying on?---Yes.
PN693
You were aware that on Thursday, 4 March, the company first approached Mr Lo about that incident?---I had heard about it, and then Rob - - -
PN694
How did you hear about it?---Do you really want to know? My wife told me.
PN695
How did your wife - - -?---She works night shift.
PN696
Right. And when were you told about the incident, what day? Your wife told you when?---Friday morning.
PN697
Friday, the 5th?---Yes.
PN698
Right?---I think it was the Friday.
PN699
That was the first time you heard about it?---Yes.
PN700
When did Vincent first come to you about it?---The day him and his wife and daughter came in.
PN701
Great. Okay. So can I take you then to the second last paragraph. You say:
PN702
We went out through the front of the building, and Vince and his family were waiting in the car park for us.
PN703
So you had a chat to Vincent, the wife and the daughter?---Yes.
**** KENNETH LESLEY SELIM XXN MR MARASCO
PN704
On Friday, 5 March?---Yes.
PN705
The next paragraph, you say:
PN706
Vincent said that the claim was that on the Wednesday, 3 March 2004, around 8.30 pm during afternoon shift lunch break, he was heard scratching Eddie Yam's car.
PN707
?---Yes.
PN708
So that is what Vincent told you at Varian on Friday, the 5th?---Yes.
PN709
He said he has been accused of scratching Eddie Yam's car?---Yes.
PN710
And you are quite clear about that, that that is what Vincent told you?---Well, that is what he told me he was accused of, and that Rob was going to the police, and all that.
PN711
Sure. And he definitely mentioned it was Eddie Yam's car?---I am not sure whether he mentioned anyone's name.
PN712
But that is what you say in your statement, he was heard scratching Eddie Yam's car?---Okay.
PN713
So he must have said that to you?---Well, he may have said Eddie's, or he might have said a car.
PN714
Well, he must have said Eddie's car?---I will tell you now, I wrote Eddie there because I know it was Eddie's car involved.
**** KENNETH LESLEY SELIM XXN MR MARASCO
PN715
Sure?---So maybe he said it, maybe he didn't.
PN716
Right, okay.
PN717
So the rest of that paragraph there:
PN718
This is immediately denied. He told I and myself that he had put his lunch on the outside table where he and his work mates usually have their lunch, and he and Hao went to move their cars close to the factory, as they were parked at the back of the car park, which this is very common for the shift workers at Varian to do.
PN719
So he explains sort of what happened. Where was that? Was that at the front of Varian?---What, when we're having this discussion?
PN720
Was that near the reception area? Yes. Or did you go to a meeting room?---We were outside the front of the building.
PN721
Outside the front where the visitors park?---Yes.
PN722
So this is all that Vincent - - -?---Right in that dirt area.
PN723
Sure. So Vincent explained all this to you on the morning of Friday, 5 March. He told you what the allegations were, and that it was Michael Ristevski who had seen him there?---He wasn't sure that was Michael. Again, I put that in because I knew Michael was the one that reported it.
PN724
Right. So later that day, if I can just take you over the page?---Can I just clarify that?
**** KENNETH LESLEY SELIM XXN MR MARASCO
PN725
Yes, sure?---He wasn't sure it was Michael, that is what his name was. He knew the guy's face and all that, but he didn't know that is his real name, because he has only been there a few months.
PN726
But he knew that it was Michael who witnessed this incident?---Yes.
PN727
Now, just over the page, Mr Selim, the second paragraph:
PN728
After Vincent had left, Ian and myself went to see Rob Leary.
PN729
So this is Friday, 5 March?---Yes.
PN730
So you are the deputy shop steward?---Shop steward.
PN731
Or the chief shop steward. So you are the shop steward. You and your deputy, Ian, went to see Rob Leary?---Yes.
PN732
And you talked about the incident?---Yes.
PN733
So Mr Leary said to you that he had reliable statements from two other people, Michael Ristevski and Hao?---Yes.
PN734
As well as a statement from Eddie Yam that the car was scratched at work, and suggested that Ian and you should talk to them, and that he would ask Michael to come in early for us to speak to him before his shift start time?---Correct.
PN735
Yes. So at that time you were speaking to Mr Leary, on Friday, the 5th, you certainly knew that it was Eddie Yam's car that had been scratched, that Vincent had allegedly done it, because Michael Ristevski had been there at the time?---Yes.
**** KENNETH LESLEY SELIM XXN MR MARASCO
PN736
And had heard the scraping noise. Was that mentioned to you? Like, did you ask, well, what did Michael actually see? Did you quiz Mr Leary about that?---No, because it was suggested that we have a chat with him to find out what he heard and saw, and what he didn't see.
PN737
Sure. So you then went to speak to Michael later that day?---Yes. Rob arranged for him to come in early, and that was about 3 o'clock or something like that, quarter past three.
PN738
So 3 o'clock, Friday, the 5th. Was Ian Freeman there as well?---Yes.
PN739
So you and Ian Freeman spoke to Michael Ristevski, just the three of you? Was Mr Leary present?---No. It started off the three of us, and it was outside to avoid a lot of stuff inside, and it was in the area where it was all alleged to have happened, and as we were talking Eddie drove up, so he gave us a chance to have a look at the car, because he had arrived for work. And then a few people, a few more people started to crowd around, so we called a halt to it there because we didn't want to get everybody on the shift involved.
PN740
Sure. No, that is fair enough?---And after that we went back to Rob, had a chat.
PN741
Yes. Can I stop you there?---Okay.
PN742
Before you went back to Rob and had a chat, did Michael Ristevski explain to you what he saw?---He never told me he saw anything. He told me he had heard a scratching noise, and then he saw Vincent coming around the back of the car.
PN743
Sure, okay. And you have read Michael Ristevski's statement in this proceed?---Yes.
**** KENNETH LESLEY SELIM XXN MR MARASCO
PN744
And is there anything in Michael's statement that is different from what he told you had happened?---I would have to read it again.
PN745
Yes, sure. Take your time and read it again?---When I find it.
PN746
Yes?---If someone gives me a clue where it is.
PN747
The second statement, so near the front, after Eddie's. So just if you turn to maybe paragraphs 3 and 4 and 5, I think are the main ones. If you just take time to read 3, 4 and 5 again.
PN748
THE SENIOR DEPUTY PRESIDENT: What is your question?
PN749
MR MARASCO: I am trying to think now. The question is, on Friday, 5 March, when Mr Selim spoke to Mr Ristevski, is there anything inconsistent that he now says in his statement?
PN750
THE SENIOR DEPUTY PRESIDENT: In whose statement?
PN751
MR MARASCO: In Mr Ristevski's statement?---So what he said is what is written down.
PN752
THE SENIOR DEPUTY PRESIDENT: Hang on. But what are you asking the witness to do?
PN753
MR MARASCO: I am asking the witness to read Mr Ristevski's statement, paragraphs 3, 4 and 5, and tell the Commission whether that is what he, what Mr Ristevski told Mr Selim on Friday, 5 March, occurred.
**** KENNETH LESLEY SELIM XXN MR MARASCO
PN754
THE SENIOR DEPUTY PRESIDENT: I don't think that is a very efficient way of asking that question. I think you should put each paragraph to him and ask him the direct question.
PN755
MR MARASCO: Certainly. I will do that, your Honour.
PN756
So paragraph number 3 - maybe we will do it - no. Mr Ristevski says in paragraph 3, which you have got there:
PN757
On the evening of 3 March 2004, I went for my meal break at 8.30 pm. Usually I sit in my car listening to music, but as it was a warm night I decided to have lunch on the outside picnic table.
PN758
When you spoke to Michael on Friday, the 5th, is that what he told you?---Everything apart from I was sitting my car listening to music. It was a warm night and he sat outside.
PN759
Sure. So then number 4. Mr Ristevski says in his statement:
PN760
When I approached the picnic table I saw that it was already occupied by Vincent Lo's lunch box. I decided to sit next to Eddie's car on the concrete slab on the ground near where the pool car is usually parked. I knew the vehicle was owned by Eddie Yam. It is a dark green 1996 Ford Falcon sedan.
PN761
Did Michael tell you that?---Yes. But I don't think he told me about the dark green 1996 Ford Falcon sedan bit.
PN762
He just said he knew the vehicle was owned by Eddie. He didn't mention the make?---I am not even sure he said that whole sentence there. I knew the vehicle was owned by Eddie Yam. You know, you have got to assume he must have known, because he went straight to Eddie to tell him.
**** KENNETH LESLEY SELIM XXN MR MARASCO
PN763
Sure. That is fair enough?---But the rest of that is what he told me, yes.
PN764
Sure. Then paragraph 5, he says:
PN765
As I was sitting on the ground I heard a scraping like noise coming from the driver's side of Eddie's car.
PN766
Is that what Michael told you when you met with him?---Yes.
PN767
It was a grating sound which sounded like a key or screwdriver scraping against the car's duco.
PN768
Is that what he told you?---Yes.
PN769
A few moments later Vincent Lo came from the driver's side of Eddie's car towards the boot, and he looked at me and saw me sitting opposite near the rear passenger wheel.
PN770
Is that what he told you?---Yes.
PN771
He seemed very frightened and shocked when he saw me.
PN772
Is that what he told you?---That one I am a little bit disturbed about, because I took it that they both actually got a fright when they seen each other.
PN773
Sure. So on Friday, 5 March, you got the impression from Michael that when they both saw each other they both got a shock?---They were both startled.
**** KENNETH LESLEY SELIM XXN MR MARASCO
PN774
Startled to see each other, sure. Did Michael tell you on 5 March that Vincent had come up to him and put his hands on his shoulders?---Yes.
PN775
And what did he actually say about that, what were his exact words?---Well, he said he come up and said hello, they said hello to each other, or something or other, and Vincent come up and just crouched down and massaged his shoulders.
PN776
Crouched down and massaged his shoulders?---He didn't sit down.
PN777
And what happened then, according to Michael?---After that he went and had his lunch, that's it.
PN778
Sure, okay. That is fine. Right, now, if I can just take you back to your statement?---Yes.
PN779
So just going through the chronology of what happens. This is all on Friday, the 5th, you speak to Michael about what had happened, you speak to Eddie, and you look at the actual car first hand?---Yes.
PN780
Now, Mr Freeman, in his statement, says he thought it was a joke. Mr Freeman says:
PN781
After we saw the car we thought this was just a joke.
PN782
Did you think it was a joke?---I didn't think it was a joke that the car was scratched, no.
PN783
Right, okay. We can ask Mr Freeman about that maybe when he is in the box. So you then went, you and Mr Freeman went back to see Mr Leary in his office?---Mm.
**** KENNETH LESLEY SELIM XXN MR MARASCO
PN784
And what did you say to Mr Leary?---I think it won't be word for word because it is a while ago now.
PN785
Of course not, sure?---It was along the lines of, Rob, you know, it is pretty circumstantial, I think. There is scratches all over the car. Rob had said to us, well, they think they have got the evidence and, you know, it is pretty conclusive, type of thing. And I said, well, I don't know. Do you think we should go out and have a look at the car, come out with us? John Ivett was a that wailing wall, and they - sorry for that - John Ivett was at the wall, and Rob said, look, he will be there for another 10 minutes or so. And I said, well, we can hang around till 4 o'clock or more, you know. So then we went out with John Ivett, and we went and had another look at the car.
PN786
So who went to the car, Mr Ivett, Mr Leary, you and Mr Freeman?---Yes.
PN787
You looked at Eddie's car again?---Yes.
PN788
So this is again on Friday, 5 March?---Mm.
PN789
So at that point your state of knowledge is you know that Vincent Lo was accused of scratching Eddie Yam's car, which was witnessed by Michael Ristevski, that is what you knew at that time?---Yes.
PN790
Right, great. When the next meeting, is it correct, was on Wednesday, the 10th?---That is right.
PN791
Because later down the page you say:
PN792
On Wednesday, 10 March 2004, Vincent rang me to say that Rob had called him and told him he wanted a written statement and that he should come in. Vincent told Rob he wanted me present. Vincent arrived with Ian and myself at Rob's office.
**** KENNETH LESLEY SELIM XXN MR MARASCO
PN793
So on Wednesday, 10 March, there is a meeting in Rob Leary's office between the four of you?---Yes.
PN794
Rob Leary, you and Mr Freeman, and Vincent Lo?---Yes. I think John was actually there as well.
PN795
John Ivett?---Mm.
PN796
Right. Did Vincent Lo ever ask you whose car is it that I am meant to have scratched?---No.
PN797
Or were you clear that Mr Lo knew whose car he had allegedly scratched?---I probably assumed that he knew whose car he allegedly scratched. I probably don't know on that.
PN798
But Eddie Yam's name would have been mentioned at that meeting?---I would assume so.
PN799
Yes. So it would have been said, look, Eddie Yam's car has been damaged, Michael was sitting there at the time and heard a noise, and Vincent - - -?---I don't know whether Michael's name was mentioned too much, because everyone was trying to keep that pretty low key.
PN800
Sure. Because Michael is a union member too?---Yes.
PN801
Everyone is in the union at Varian, or most people?---Except for Rob and John.
PN802
Yes. But the shop floor employees covered by the EBA?---Not all, but most people.
**** KENNETH LESLEY SELIM XXN MR MARASCO
PN803
Sure. So Eddie Yam, the owner of the car, he is in the union too?---Mm.
PN804
And Michael is in the union, Vincent is in the union?---Mm.
PN805
But then again, you are quite clear that at that meeting on Wednesday, 10 March, it definitely would have been mentioned that it was Eddie Yam's car that was scratched?---I wouldn't say definitely it would have been mentioned. I would assume that it would have been mentioned.
PN806
That meeting then on Wednesday, 10 March, what was actually discussed at the meeting, as much as you can remember? Like, if Mr Lo was asked to bring in a statement the next day?---Yes, right, okay. Rob asked him if he had prepared a statement, a written statement. I think I intervened at that stage and said, well, I asked him not to worry at the moment until, if he was going to do one, not to give it to you until Peter had at least seen it.
PN807
Right. So you wanted Peter to see Mr Lo's statement before it was given to the company?---Right.
PN808
Why would you want that?---Well, I don't think I am one of you guys, I am not a lawyer or anything, and I am not that good on stuff like that, so I just wanted to make sure everything he is doing is right.
PN809
So you would be worried if Mr Lo had made any admissions, for instance, in the statement?---Not so much admissions, if he just does something that would incriminate himself or get him into further trouble, the same as the others guys, I would suggest the same thing.
PN810
Yes, sure. No, that is fair enough. So the next day then, on Thursday, the 11th, that is when you had another meeting? You remember that meeting with Peter?---Mm.
**** KENNETH LESLEY SELIM XXN MR MARASCO
PN811
But was Eddie Yam's name mentioned there, the car, talked about Eddie Yam's car being damaged?---Obviously we were talking about the car being damaged because that is what we were there for.
PN812
Yes. And did you talk about Eddie Yam's car?---More than likely Eddie Yam's car was mentioned. I am not - - -
PN813
Sure. No, that is fair enough. Was Mr Lo ever confused or did he ever say, whose is it that is damaged, or what car? Was there any doubt as to the identity of the car that had been damaged?---I really can't say on that one. I don't know whether he had doubt or what. I don't know whether he actually knew whose car it was.
PN814
Sure. But no doubt was expressed to you as to whose car it was?---Well, in my mind I think that he knew whose car it was, but I can't say that he definitely knew whose car it was.
PN815
Sure. I have got no further questions, your Honour.
PN816
THE SENIOR DEPUTY PRESIDENT: Mr Addison?
PN817
PN818
MR ADDISON: Ken, you said in answer to, I think it was the first question that Mr Marasco asked you, that you were aware that cars had been scratched in the past?---Mm.
PN819
You went on to discuss a person's car who was a day shift employee?---Yes.
**** KENNETH LESLEY SELIM RXN MR ADDISON
PN820
Are there many day shift employees who have had their cars scratched?---I couldn't name how many, but it has been a continuing problem with cars being scratched.
PN821
And is it a problem across all of the shifts?---I think more day shift than any other shift.
PN822
So you think it is more on day shift than it would be on afternoon shift or night shift?---In my opinion, yes.
PN823
Nothing further, your Honour. Could the witness be excused?
PN824
PN825
PN826
MR ADDISON: Ian, can you repeat your full and address just for the record please?---Ian Craig Freeman, 23 College Crescent, Keysborough.
PN827
Have you prepared a witness statement for this matter?---Yes, I did.
PN828
Can I hand you a copy of the witness statement. Can I ask you just to scan through that and tell us if that is the witness statement that you have prepared?---Yes.
PN829
Do you wish to make any changes to that witness statement?---No.
PN830
And is it true and correct?---It is true.
PN831
PN832
MR ADDISON: I only need you for a couple of minutes, Ian. Ian, how long have you worked at Varian?---I have been there for just over 21 years.
PN833
Just over 21 years. So you are pretty familiar with the layout of the place?---Yes.
PN834
In that 21 years has there been a problem with employees cars getting scratched in the car park?---Yes. It has been going on for quite a while now, I think.
**** IAN CRAIG FREEMAN XN MR ADDISON
PN835
And is there any particular shift that has a specific problem with it?---No. I think it has been right across day shift, afternoon shift and night shift.
PN836
Okay. Now, the car park at Varian, is that a secure car park?---Fairly secure, but you can still get in from the gate, you can quite easily fit underneath, and on occasions people have, if they have forgotten their key, go underneath, press the button to drive through.
PN837
Okay. So anybody can scramble under the gate, there is a button on the inside, you just push the button and the gate opens?---Yes.
PN838
I have nothing further for this witness, your Honour.
PN839
THE SENIOR DEPUTY PRESIDENT: Mr Marasco?
PN840
PN841
MR MARASCO: It is correct, is it, Mr Freeman, Mr Abrahamson here has spoken at a couple of mass meetings at Varian where, amongst other issues, he has talked about car scratching incidents?---Yes.
PN842
Do you recall Peter saying that at mass meetings?---I have heard it before, yes.
PN843
Would it be correct to say that the employees suspect that other employees have been scratching the cars, rather than someone from outside?---It would be a speculation, I suppose.
**** IAN CRAIG FREEMAN XXN MR MARASCO
PN844
Yes. But do you think it is more likely - these car scratching incidents have happened, there has been a few - is it more likely that it has been another employee or someone from outside, or have you got no idea?---I would only be guessing, so I don't know the truth.
PN845
Sure. Can I take you to your witness statement. I just want to just briefly go through the chronology. When did you first hear about the incident? The car was scratched on the night of Wednesday, 3 March. When did you first hear about that, if you recall?---It would have been Friday morning. I can't remember before that.
PN846
Friday morning. What hours do you work?---What hours? I am day shift.
PN847
Which is what hours?---Seven to 3.30.
PN848
Seven to three. And Mr Lo, what hours does he work?---3.30 to 12.
PN849
Right. So you would rarely see Mr Lo then, because you are on a different shift?---I only see him on overtime, if I am working back overtime I will see him, that is about it.
PN850
Sure. No, that is fine. Are there any shop stewards on the afternoon shift?---No.
PN851
So there is only two shop stewards, you and Mr Selim?---Selim. And there is another one, Brendan, in the assembly line.
PN852
And what shift does he work?---He is on day shift.
**** IAN CRAIG FREEMAN XXN MR MARASCO
PN853
Day shift too, okay. So the first you knew about it was Friday, 5 March, that is correct, isn't it?---That is correct.
PN854
Yes. Who was it that told you about the situation?---Ken, Ken Selim.
PN855
Who is the other shop steward?---Shop steward.
PN856
What did he actually tell you?---He said we have got to go to the front to meet Vincent, and then he started telling me about the alleged scratching of the car.
PN857
Sure. And he said it was Eddie Yam's car?---I can't recall if he told me at that stage, but I found out later on it was, yes.
PN858
Later on when?---I would have found out that day.
PN859
That day. So on Friday, 5 March, you would definitely have known that it was Eddie Yam's car that was scratched?---Yes.
PN860
Right. So you recall then going into Mr Leary's office and talking to him about it on 5 March?---Yes. We spoke, actually spoke outside in the car park just before tea time.
PN861
With Mr Ivett and Mr Leary?---Yes.
PN862
Then you spoke to Michael Ristevski?---Yes, at 3 o'clock.
PN863
And he explained to you what he saw?---Yes.
**** IAN CRAIG FREEMAN XXN MR MARASCO
PN864
And you also spoke to Mr Eddie Yam, the owner of the car, and you saw the car first hand?---Yes.
PN865
Then after that you went back to speak to Mr Leary?---Yes.
PN866
Can I take you to page 2 of your witness statement:
PN867
Around 3.20 pm Eddie arrives, so we went over to look at the scratches. There were four over one foot long scratches on the driver's side.
PN868
This is Friday, 5 March that you are talking about?---Yes.
PN869
Great:
PN870
After we saw the car we thought this is just a joke.
PN871
What do you mean by that, this is just a joke?---Because there were scratches all over the car identical to the ones that were supposed to have happened at work. If you looked at the scratches on the back you could see paint marks, and at the back there was like a little crack, and you could see where the scratch had gone over, it didn't go into that crack, so it just seemed like it hadn't happened at that time, because it was identical with all the other scratches.
PN872
Sure. But when you spoke to Eddie, he was sure that the scratches had happened on the Wednesday night?---He didn't give that impression to me.
PN873
Didn't give that impression to you?---No.
**** IAN CRAIG FREEMAN XXN MR MARASCO
PN874
What impression did he give you?---It seemed like it might have happened, like he wasn't 100 per cent sure.
PN875
Sure, okay. Then on that third paragraph you say:
PN876
We went in to talk to Rob and John, and we asked Rob if he had seen the car. He said no.
PN877
?---That is correct.
PN878
What do you mean, had he seen the car?---Had he seen the scratches on the car.
PN879
So you had the impression that on Friday, 5 March, Mr Leary here had never seen the car and the scratches?---That is what his answer was.
PN880
Right. Because Mr Leary will give evidence to say that he saw the car on Thursday, the 4th?---He might have, but that is not what he told us.
PN881
Right. Could it be that you misunderstood what his answer was?---I don't know. We asked that question, and the answer was no, so I just presumed that is what he was talking about.
PN882
Sure. Now, the next time you were involved - it is correct, isn't it, that Monday, the 8th, was a public holiday, Tuesday, the 9th, was an RDO, so the next time something happened was Wednesday, the 10th, there was a meeting between you, Mr Selim, Mr Lo and Mr Leary?---Mm.
PN883
Can you tell her Honour what was discussed at that meeting, just without looking at your statement, if you can try to remember from using your memory rather than reading your statement. If you can't remember, just say you can't remember?---No, I can't remember.
**** IAN CRAIG FREEMAN XXN MR MARASCO
PN884
No, that is fair enough. But there was definitely a meeting between the four of you where the issue was discussed? Like, you remember having a meeting, don't you? I can understand you don't remember exactly what was said, but there was a meeting between the four of you on Wednesday, 10 March?---No, I don't - no, I would have to take that back.
PN885
Take what back?---I just remembered that I didn't go to the meeting. We were walking up towards the meeting, and I got called away, and I didn't go to the meeting, and by the time I had come back Ken was on his way out.
PN886
So your sentence then:
PN887
Vince, Ken and I went to Rob's office, where he told us he can't make a decision today because he needs to talk to his manager and Michael and Eddie.
PN888
?---Yes, I don't think I was over there.
PN889
So that statement is incorrect?---I was going to the meeting, and I got called somewhere, and I thought I was only going to be a minute, but by the time I had come back they had already come out.
PN890
Okay. Who prepared this statement?---It was me.
PN891
Did you type that?---Yes, sorry.
PN892
Why did you put that sentence in there if it is incorrect?---I thought I was - I don't know why. I just thought I went to that meeting. I remember we had planned to go to the meeting, and it was still in my head that we went there.
**** IAN CRAIG FREEMAN XXN MR MARASCO
PN893
Sure. That is fair enough. The next sentence:
PN894
Ken then rang Peter Abrahamson, our organiser from the AMWU.
PN895
Were you there when Ken rang Peter?---No.
PN896
You weren't there?---No. Ken came and told me that he was going to - - -
PN897
He had rung Peter?---Yes.
PN898
Right. And did Ken tell you what he told Peter about the matter?---No. He just asked Peter to come before 10 o'clock.
PN899
To come, but never told him why?---I would presume he would have told him why, yes.
PN900
Right, okay. Then you were also present the next day, Thursday, 11 March, when there was another meeting in Rob Leary's office with Rob Leary, John Ivett, Peter Abrahamson, Ken Selim and Vincent Lo and you?---Yes.
PN901
And at that meeting it was discussed again that Eddie Yam's car had been damaged, and that it had been witnessed by Michael; you recall that being discussed?---That they had statements from people, yes.
PN902
Yes. And those people were Michael Ristevski and Eddie Yam?---Eddie Yam.
PN903
Right. And Vincent at that meeting had the opportunity to deny that he had scratched the car, didn't he?---He was asked if he had anything else, and he said no.
**** IAN CRAIG FREEMAN XXN MR MARASCO
PN904
No. He was asked if he had anything else to say, and he said no. There is no further questions, your Honour.
PN905
THE SENIOR DEPUTY PRESIDENT: Mr Addison?
PN906
MR ADDISON: There is no re-examination, your Honour. I would ask that the witness be excused.
PN907
PN908
MR ADDISON: Your Honour, can I indicate that thanks to Ms Chiu and Mr Lo, we have managed to have a proper discussion with Mr Bi Diep, who we had indicated earlier that we would seek to call. The instructions that we have are that Mr Bi Diep is not really going to be helpful to these proceedings in one way or the other. He basically saw nothing. So it seems to be not necessary to call him. And with that said, that concludes the evidence for the applicant.
PN909
THE SENIOR DEPUTY PRESIDENT: So we can cancel the interpreter?
PN910
MR ADDISON: You can cancel the interpreter, yes. Thanks for that time to be able to do that, and we have done that. If your Honour pleases.
PN911
THE SENIOR DEPUTY PRESIDENT: Mr Marasco?
PN912
MR MARASCO: Your Honour, we would now seek to call Mr Eddie Yam.
PN913
MR ADDISON: Your Honour, just before we do that, is it possible to have a five minute adjournment?
PN914
THE SENIOR DEPUTY PRESIDENT: So long as it is not a smoko.
PN915
MR ADDISON: No. It is a five minute adjournment.
PN916
THE SENIOR DEPUTY PRESIDENT: It is just that if it is a smoko it turns out to be longer than five minutes.
PN917
MR ADDISON: No. I guarantee it will be a five minute adjournment, your Honour.
PN918
THE SENIOR DEPUTY PRESIDENT: I will resume at 14 to four.
PN919
MR ADDISON: Done.
SHORT ADJOURNMENT [3.45pm]
RESUMED [3.55pm]
PN920
PN921
MR MARASCO: Eddie, just for the record can you state your full name and address?---My name is Yam Ti Kin, 26 Medina Road, Glen Waverley.
PN922
And you just said your name in Cantonese?---Yes.
PN923
Your English name is?---Eddie Yam.
PN924
Great. I don't know if I could repeat back what he said in Cantonese. Have you prepared a statement for the purpose of this proceeding?---Yes, I have.
PN925
Great. If you can get the stapled documents there, that is it, if you just flick through the pages, I think yours starts at page 3?---Yes.
PN926
Is that your statement?---Yes.
PN927
On the second page is that your signature?---Yes.
PN928
Is this statement true and correct?---Yes, it is true.
PN929
Is there anything you wish to change in that statement?---Nothing.
PN930
Nothing. Right. Can I just take you to item number 6, paragraph 6?---Yes.
PN931
You say:
PN932
I saw three scratches on the driver's side of my car.
**** EDDIE YAM XN MR MARASCO
PN933
And you say:
PN934
These scratches were done that day as I did not notice any damage to my car when I parked it there.
PN935
Are you sure that those scratches were done that day?---In the statement there, that mentioned there are three scratches. One is done in the front, one is done on the door, but it is not mentioned one is done on the back.
PN936
Yes?---The scratches done on the back is done before. The scratches done on the front and on the door is done on the day.
PN937
And you are absolutely sure?---Yes.
PN938
Right. I have no further questions.
PN939
THE SENIOR DEPUTY PRESIDENT: Mr Addison?
PN940
MR MARASCO: I don't think we marked that statement.
PN941
THE SENIOR DEPUTY PRESIDENT: You are right, Mr Marasco.
PN942
**** EDDIE YAM XN MR MARASCO
PN943
MR MARASCO: Thank you.
PN944
THE SENIOR DEPUTY PRESIDENT: Mr Addison?
PN945
PN946
MR ADDISON: Eddie, you had a meeting with Ian Freeman on 5 March, that is correct, isn't it?---Is that a Thursday?
PN947
That is the Friday?---I can't remember, but on that day I come back earlier, and I and Ken come to me, but I can't remember what is that exact day.
PN948
Well, put the day aside. You had a discussion with Ian and Ken with regard to your car?---Yes.
PN949
Now, Ian has given evidence that you weren't sure when the scratches that you talk about were done. That is true, isn't it?---I did not say that.
PN950
Well, Ian's evidence which he gave half an hour ago, is that he had a discussion with you, he had pointed out to you that your car was quite damaged. It has got a lot of scratches, hasn't it?---Yes.
PN951
Yes, it has got a lot of scratches on it. And that you were not sure whether those three scratches had been done on the Wednesday or not. Now, if you weren't sure then, why are you so sure now?---I didn't say I am not sure that the scratches is done some other time, I am not telling him that.
**** EDDIE YAM XXN MR ADDISON
PN952
You agree that your car is very scratched?---Mm.
PN953
Yes. You recall the inspection this morning, there are about 20, 30 scratches on your car?---This car is a '96 model car, and the colour is very dark, so when I find one I do not treat it as a scratch. But those purposely done by something, I think they are scratches, what I mean, using something sharp to make a mark, that I reckon is a scratch. The other one, let's say I clean my car using a cloth or some kind of a sponge, have a little bit sand touching it, that leaves little mark, I don't reckon that is a scratch to me. To my understanding, the scratch are those purposely.
PN954
Those purposely put in?---Put in, that I mean is a scratch.
PN955
How do you know that those three scratches were purposely put in?---Yes. The car, when you have the scratches, like you - - -
PN956
Can you just answer the question I have asked you. How do you know that those three scratches that you are talking about were purposely put in with something sharp?---Because it is very deep, and all the paintwork is already gone, so is already going to see the white underneath of the car, so is not just pass by and then make this. Done very hard and with force to make the scratches.
PN957
How do you know that?---You can see from about, from the car.
PN958
You recall the inspection this morning?---Yes.
PN959
Yes. You recall that we were on the passenger side of your car, yourself, myself and her Honour, do you recall that?---The passenger side?
**** EDDIE YAM XXN MR ADDISON
PN960
Yes?---Yes.
PN961
You recall that I pointed out to you numerous scratches on the passenger side of the car?---I not say numerous. Those - those scratches are numerous and are to me is not like scratches. Only one on the right back I reckon that is scratches. That is done by someone. All the others may be just like I said, when you walk by or wash it, then you make a little bit line. That is not a scratches to me.
PN962
Remember that I pointed out to you numerous scratches on the passenger side of the car?---Not numerous. To me only one on the back I mentioned, this is only the scratch I reckon that is a scratch.
PN963
Eddie, I pointed out to you at least four or five scratches on the passenger side of the car which resemble the scratches on the driver's side of the car?---No. If some line is done on vertical, is different. This is done on that side, this is the easier way to make the scratch. The other line you wiping, they are like this, it is different way of scratches.
PN964
I asked you this morning with regard to those scratches that I pointed out to you when those scratches were done?---Because that one is not to me - - -
PN965
Eddie, just listen to what I am asking you, and see if you can address what I am asking you, rather than going off on a tangent. When I pointed out those scratches to you this morning on the passenger side of your car, I asked you when they were done, and your response to me was that you didn't know. That is correct, isn't it?---Yes.
PN966
Yes, that is correct. Now, there is also a scratch on the rear panel of your car on the driver's side?---Yes.
**** EDDIE YAM XXN MR ADDISON
PN967
Now, that is in line with the three scratches that you say were done on the Wednesday, isn't it?---No. A little bit higher. And that one, I am very, very sure, because that one my wife mentioned to me one day, oh, your car have scratch, I have scratch.
PN968
How long ago was that scratch done?---Quite some time, maybe less, a few months.
PN969
A few months ago. Your car also has - - -?---That car, I have to stress this point too, that scratch is much deeper than the other I mentioned, the new scratch, that is much deeper.
PN970
Your car also has on the trim, if I can call it that, on the door, you know the black strips that go along the doors?---Yes, on the door.
PN971
I will call that a trim. I don't know whether it is a trim or a fender, or what, but we will call it a trim for the purposes of this afternoon. That trim is quite damaged, isn't it?---Yes.
PN972
Yes. Do you know how that damage was done?---I know. This car is not, I am not buying the car from the brand new, I but it from my friend. When I get the car that part is already damaged. What he has mentioned, the rubber trim is already damaged, not only like that. On the lower side near the bottom, if you look carefully and look, you can see it is already get a little bit of hit and dent inside. But if you not touch by hand you won't even find out that is already damaged.
PN973
Okay. Now, can I take you to your witness statement. Can I take you to paragraph 4 of your witness statement. On 3 March, you say, at about 9 o'clock you were working in the machine shop, Michael came up to see you, and said, Eddie, please go out and have a look at your car. You didn't pay any attention to him?---Mm.
**** EDDIE YAM XXN MR ADDISON
PN974
You didn't pay any attention to what he was saying, and you carried on working?---Mm.
PN975
What did Michael say to you exactly?---He said nearly exactly the words, Eddie, go to see your car.
PN976
Yes. Did he tell you why?---No. He not mention any person, not anything, just ask me to go to see the car.
PN977
But you ignored him?---Yes.
PN978
Why did you ignore him?---I am a person like that. Before I go to lunch I already start setting up a machine, and when I setting up a machine I don't want to stop, I want to continue. So when I finish, well, I want to finish the set up the machine first. And secondly, he said, mentioned to me to look at the car. I don't think anything serious, so I said I not pay attention to him, so I carry on with the work. But later on he come back to me again.
PN979
When?---After one, two minutes.
PN980
One or two minutes?---About very short time he come back again, Eddie, go, please go and then see your car.
PN981
Okay. Now, you talk about that at paragraph 5, is that right? He came again and pushed me to have a look?---Yes.
PN982
And you said that was one or two minutes?---I said very short time, not exactly one minute, two minutes.
**** EDDIE YAM XXN MR ADDISON
PN983
A short period of time?---Yes, a very short period of time.
PN984
Okay. And what did he say to you when he came back?---I tell him I not - - -
PN985
No. What did he say to you when he came back?---He not say any words. He just say, they mean, I find something, I said yes. Because he not tell me whether, what I am going to find, he not mention that. So he ask me to go out to have a look. But when I come back he give me a sign, did you find something? I said yes, just like that.
PN986
So at 9 o'clock he comes to you and he says, Eddie, go and look at your car?---Pardon?
PN987
At 9 o'clock he came to you and said, Eddie, go and look at your car?---Yes.
PN988
What did you say to him when he said that to you?---I said I am not bothered at that, I want to - I don't want to - I want to work first.
PN989
Okay. So you said that you were busy?---Something like that.
PN990
And then he comes back a minute or two later and he nods at you?---Pardon?
PN991
You said he just nodded at you, he didn't say anything to you?---He not say anything, just ask me to see the car.
**** EDDIE YAM XXN MR ADDISON
PN992
No. That is what he did at 9 o'clock, as I understand your evidence. At one or two minutes past nine, when he came back for the second time?---He is not very far away from me. I work on this machine, he just about near the wall, or just a little bit that close to me. He sitting, and then maybe he is thinking whether to tell me or not. And then after he tell me, he said, come Eddie, come. Just keep it between you and me, please go to see your car. I say, ah, no, I have to set up, I don't worry about it, so I keep on go back to work. But after that he come again. So I said, okay, I not have a torch. I go to get a torch, I go to see my leading hand. But my leading hand also not have a torch, so he asked me to go for the sheetmetal leading hand, John. I go to ask him. He said, you go to my locker or the place where he work, get the torch. So I get the torch and went outside to see my car.
PN993
Now, at paragraph 6 you say you went out to your car. Did you get the torch?---Yes.
PN994
Yes. So you went out with a torch?---Yes.
PN995
And you shone the torch on the car. Which part of the car did you look at first?---I only look at the driver side.
PN996
Why did you only look at the driver's side?---Because he tell, Michael tell me, go to, go out to look at your driver side, he said.
PN997
Well, that is not what you said in your witness, and not what you have just said in your evidence?---Pardon?
PN998
That is not what you say in your witness statement, nor what you have just said in evidence. What you have said in evidence, is that Michael came to you and said go and look at your car?---No. The second time he come to me he said, go to see on your driver side.
**** EDDIE YAM XXN MR ADDISON
PN999
Is that right? So you looked at the driver's side door, and you saw some scratches on it?---Yes.
PN1000
Now, how many scratches are there on the driver's side of the car?---I have to tell you, to me I think it three scratches, but today you told me one more very minor one on the driver door, but that is a very, very minor, which is in the line with the front and with the back door, but that one is very, very small, not as obvious as the front and the door.
PN1001
I put it to you, Eddie, that there are least seven scratches on the driver's side of your car, at least seven?
PN1002
MR MARASCO: I think Mr Yam and Mr Addison is disagreeing about what is a scratch and what is maybe a mark. Mr Yam has quite clearly said what he describes as a scratch, which you can see in the photo that your Honour has, and there is other numerous marks on the car that aren't actually scratches.
PN1003
MR ADDISON: I will take that as an objection, your Honour, and say that you should overrule that objection. A scratch is a scratch is a scratch. A scratch is where the paint has been displaced by some object, whether it be a tree branch, a key, a screwdriver or a button on somebody's jacket. It is a matter of fact, your Honour, and your Honour saw the car for yourself this morning.
PN1004
THE SENIOR DEPUTY PRESIDENT: I will still allow the objection, and I will allow you to ask your question, Mr Addison, but just before you do, where do you say the new scratches were?---In the front in the back door, the driver side on the back door, back door.
PN1005
Not on the driver's side?---The driver had one, but only very small one. You have to look very carefully, then you can see. But the other very obvious, it is in the front, in the back door and, of course, one on the very far back near the back of the car. That is done some other time, not on that day.
**** EDDIE YAM XXN MR ADDISON
PN1006
Yes. My understanding of what you told me this morning was that there was two new scratches?---Yes, that true.
PN1007
One on the front?---Yes. And one on the door.
PN1008
And one on the door, which would be the rear passenger door?---Not passenger. Is on the driver.
PN1009
On the driver's door?---Yes.
PN1010
MR ADDISON: The rear driver's side door, which is a passenger door?---Yes, rear driver.
PN1011
THE SENIOR DEPUTY PRESIDENT: Yes, the rear driver's side door?---Driver side door.
PN1012
That is right. We are saying the same thing. I am calling it the rear driver's side passenger door?---Yes, rear driver side door.
PN1013
Yes. And you agree with that?---Yes.
PN1014
Yes. So it would seem it is uncontested evidence that we are talking about two scratches.
PN1015
MR ADDISON: Not three, yes.
PN1016
THE SENIOR DEPUTY PRESIDENT: One on the panel ahead of the driver's door, and one on the rear driver's side passenger door.
**** EDDIE YAM XXN MR ADDISON
PN1017
MR ADDISON: Yes. I wish my memory was good enough to remember what that car looked like exactly this morning. Bear with me a second. My friend supplied me with some photographs, but the photographs only seem to - hang on a second. Your Honour, I am finding it really difficult. My memory is not bad usually, but in terms of cars I am hopeless.
PN1018
THE SENIOR DEPUTY PRESIDENT: Well, I have had a look at this photo. I think there is only one of these photos which is relevant in light of what has just been conceded, and that is the third one. The others are of the rear panel.
PN1019
MR ADDISON: That is correct.
PN1020
THE SENIOR DEPUTY PRESIDENT: And Mr Yam has conceded that those scratches were done previously.
PN1021
MR ADDISON: Yes, that is right.
PN1022
THE SENIOR DEPUTY PRESIDENT: So we don't have a picture of the rear passenger side, rear driver's side passenger door?
PN1023
MR ADDISON: Or the driver's door for that matter.
PN1024
THE SENIOR DEPUTY PRESIDENT: Well, yes. Well, that is why I clarified the issue with Mr Yam, and he is saying his complaint is in regard to the front panel and the rear driver's side passenger door.
PN1025
MR ADDISON: And the rear driver's side passenger door, yes, that is correct. And I accept that evidence. My difficulty is trying to deal with it. I understand from my friends that they have got about 25 photographs. Maybe the more expedient thing to do would be to adjourn this afternoon. If Marasco and I can meet early Monday morning with regard to the photographs, and then we continue on.
**** EDDIE YAM XXN MR ADDISON
PN1026
THE SENIOR DEPUTY PRESIDENT: It is convenient to adjourn now anyway, because we would be adjourning in a few minutes in any instance. So maybe you could clarify that.
PN1027
MR ADDISON: And maybe we can start early on Monday morning. Obviously I am in your hands there. Mr Marasco and I could meet at, say, 8.30, and then we would start at nine?
PN1028
THE SENIOR DEPUTY PRESIDENT: No. You may well start with me at nine, but I don't think it will be in this matter.
PN1029
MR ADDISON: What has happened?
PN1030
THE SENIOR DEPUTY PRESIDENT: I will go into conference.
ADJOURNED ACCORDINGLY [4.17pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #AMWU1 OUTLINE OF SUBMISSIONS PN49
VINCENT LO, SWORN PN50
EXAMINATION-IN-CHIEF BY MR ADDISON PN50
EXHIBIT #AMWU2 STATEMENT OF VINCENT LO PN232
CROSS-EXAMINATION BY MR MARASCO PN234
RE-EXAMINATION BY MR ADDISON PN508
WITNESS WITHDREW PN514
PETER JOHN ABRAHAMSON, AFFIRMED PN515
EXAMINATION-IN-CHIEF BY MR ADDISON PN515
EXHIBIT #AMWU3 STATEMENT OF PETER ABRAHAMSON PN523
CROSS-EXAMINATION BY MR MARASCO PN567
RE-EXAMINATION BY MR ADDISON PN611
FURTHER CROSS-EXAMINATION BY MR MARASCO PN618
FURTHER RE-EXAMINATION BY MR ADDISON PN627
WITNESS WITHDREW PN631
KENNETH LESLEY SELIM, SWORN PN635
EXAMINATION-IN-CHIEF BY MR ADDISON PN635
EXHIBIT #AMWU4 STATEMENT OF KENNETH SELIM PN641
CROSS-EXAMINATION BY MR MARASCO PN674
RE-EXAMINATION BY MR ADDISON PN818
WITNESS WITHDREW PN825
IAN CRAIG FREEMAN, SWORN PN826
EXAMINATION-IN-CHIEF BY MR ADDISON PN826
EXHIBIT #AMWU5 STATEMENT OF IAN FREEMAN PN832
CROSS-EXAMINATION BY MR MARASCO PN841
WITNESS WITHDREW PN908
EDDIE YAM, SWORN PN921
EXAMINATION-IN-CHIEF BY MR MARASCO PN921
EXHIBIT #VARIAN1 OUTLINE OF SUBMISSIONS PN943
EXHIBIT #VARIAN2 STATEMENT OF EDDIE YAM PN943
CROSS-EXAMINATION BY MR ADDISON PN946
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