C2004/1853, Transcript of Proceedings [2004] AIRCTrans 1595 (28 April 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 10892

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER MANSFIELD

C2004/1853

AUSTRALIAN WORKERS UNION

and

BOWLAND CRANBOURNE PTY LIMITED

Notification pursuant to section 99 of the Act
of a dispute re conditions of employment

MELBOURNE

10.05 AM, TUESDAY, 20 APRIL 2004

Continued from 27.2.2004

PN118

MR C. WINTER: I appear on behalf of the Australian Workers Union, together with MR P. MARCZENKO.

PN119

MR C. USHER: I appear on behalf of Bowland Cranbourne Pty Limited.

PN120

THE COMMISSIONER: Thank you. This is a hearing which is a continuation of an earlier matter where we dealt with the non continuation of employment of four employees as a result of allegations being made by their employer of improper behaviour in the workplace. But the original notification from the Australian Workers Union referred not only to the suspension of four employees, but also to underpayment of wages, incorrect classifications, the ability of casuals to convert to permanent employees, and inappropriate video surveillance.

PN121

As Mr Usher will recall, and two of the employees who are in the rear would recall, a recommendation was issued following conciliation, which suggested that discussions should take place as soon as possible regarding the suspension of the employees, and that better details be provided to the employees as to the reasons as to why they were suspended, and other matters also were to be dealt with between the union and the employer. That was a recommendation which was issued on 3 March.

PN122

I received advice from the company later to that recommendation that the video surveillance of the employees, which was part of the evidence that led to the suspension of individuals, they had received advice that it could not be shown as it could prejudice other proceedings that were being considered, and I did propose to relist the matter at short notice, but that didn't go ahead. I think, Mr Usher, you were away overseas, as I recall, on business. And then the matter was listed again for 31 March, and neither the union nor the employer were able to attend on that day.

PN123

I think the employer advised us that they hadn't been notified, even though we had correspondence which was sent by registered mail, either registered mail or via fax, which we had confirmation of sent to the employer. But in any case we relisted it for today, and on the basis, Mr Usher, that the union has advised us that they have been attempting to speak with the company since that time to discuss these matters and to try and resolve some of the issues affecting their members, including the four who were suspended, and effectively then terminated, and the company hasn't been available to meet with them. That is the union's advice to me.

PN124

So that is where we are this morning. What I propose to do is to ask Mr Winter to see if you wish to put something on the record, Mr Winter, and then I will turn to you, Mr Usher, to get your views as to where we go with this matter. But we obviously still have four individuals who were previously working with the company who were suspended and then not re-employed by the company, and at the time of the first hearing those individuals were basically saying any allegations against them were not well founded, and it was unfair to them that they should lose their employment.

PN125

They were casuals at the time, and I think I am right in recalling that none of them had more than 12 months service. Some did, one, yes. So perhaps, Mr Winter, I will ask you first to bring us up to date on what has happened.

PN126

MR WINTER: Thank you, Commissioner. As you are aware from the previous hearings, the four employees were suspended on 8 February this year, so it has been a considerable amount of time, it hasn't been just a week or two while some sort of investigation takes place, they were suspended on 8 February. You issued your recommendation on 3 March, and both parties agreed to abide by the recommendation. It was quite clear at that hearing that the position was put, and both parties agreed, yes, we would go down that track.

PN127

And the key points of your recommendation were that there would be a meeting arranged for the Monday of the following week between management, the four suspended employees and the union to go through a number of issues and allow for a fair hearing regarding the reasons for their suspension, etcetera. Now, our organiser made himself available and actually went down to the place of employment along with the employees concerned.

PN128

Probably about half an hour before arriving at the centre he received a phone call cancelling the meetings. The employees also basically were told, well, don't bother turning up, and that was on the Monday following 3 March. The union then accepted, I suppose, that there could have been some issues in regard to a representation by the employer, etcetera, and we have on numerous occasions attempted to set up meetings. We have visited the centre and spoke to management. The management that was present said, well, basically they couldn't do anything, they weren't prepared to meet. And not one of your recommendations or provisions within your recommendation have been followed in this case.

PN129

We have made every attempt to meet with the employer to try and resolve it. In regard to the allegations of misconduct, etcetera, it is now April, the middle of April, no charges have been laid. We believe that there will be no charges laid. There has been some discussions with the local police, as I understand, and there are no charges pending. We need to bring this issue to finality. We can't have it dragging on and dragging on. The 8th of February the suspensions took place. Clearly the employer doesn't seem to be interested in trying to resolve the matter.

PN130

Clearly there was recommendations given. We believe now it has gone past that stage, and those recommendations should be changed to directions. The directions we would seek is the immediate reinstatement of the employees with back pay from the time of suspension. Clearly, if the employer believes that there has been something untoward occur at the workplace, there would be an investigation, and normally it is a fairly quick investigation, and termination would take place.

PN131

It is unfair on these individuals just to suspend them. And that is what has occurred here. There has been no charges laid, there has been no termination alleging theft or anything like that. Clearly we seek to have the matter resolved. Both parties agreed to abide by a recommendation. The union made itself available in accordance with your recommendation. The company has refused point blankly to meet with us. So we would seek directions that the employees be reinstated from the date of suspension, and payment be made in that regard. If the Commission pleases.

PN132

THE COMMISSIONER: What about the other matters, Mr Winter, of underpayment of wages, classification matters and so forth, have you been able to talk to the employer about those matters?

PN133

MR WINTER: No, because the employers refuse to meet with us. And that is what we would hope, we could package it all up and resolve it one way or another. And the Commission is clearly aware that there are a number of ways of resolving these sorts of disputes. It is a matter of the parties sitting down and talking and trying to work through them. If they can't successfully work through them together, we could have jointly brought it back before you to try and say, well, these are the outstanding points, these are the points that are agreed, and the matter gets put to bed finally. But where an employer refuses point blank to abide by the recommendation, it makes it very difficult. If the Commission pleases.

PN134

THE COMMISSIONER: There is a disputes procedure in the award, I note, and that does provide for matters to be referred to the Commission which cannot be resolved at workplace level.

PN135

MR WINTER: That is right. And that is what we have attempted to do from the very start in relation to this matter. We believe that the recommendation that you issued on 3 March, if the employer had complied with it, it would have gone a long way of trying to resolve this dispute. But there just doesn't seem to be any interest in trying to resolve it.

PN136

THE COMMISSIONER: And just insofar as the four individual employees are concerned, are they of the view that their employment is still suspended?

PN137

MR WINTER: That is correct.

PN138

THE COMMISSIONER: Or have they been advised otherwise, that there is no more employment for you at this workplace employees, regard yourself as being terminated?

PN139

MR WINTER: They haven't been advised of any termination.

PN140

THE COMMISSIONER: Yes, okay, thanks, Mr Winter. Well, Mr Usher, we had a long discussion about this on the last occasion we were here, and you were present, and a recommendation was made, and before that recommendation was made both parties had an opportunity to consider its contents and indicate whether they believed it was workable. I didn't receive any advice from Bowland that it was something which was going to give you major difficulties, and so I issued it in good faith that both parties would respect it.

PN141

Can you give us an indication of where things stand at the moment? Mr Winter is saying that the effort was going to be made. Because the fundamental thing that came out on the last occasion in regard to the suspension of the employees was, the employees believed that their employment had been suspended without due process, the company believed they had sound grounds for suspending the employees on the evidence it had available to it. But that evidence had not been adequately at least gone through with the employees, possibly in the presence of their representatives, and that was the issue.

PN142

And so that was one of the matters that was of serious concern to the individuals and their union. And the means of addressing that was going to be, well, people would sit down together and they will be taken through the evidence individually as to why their employment was not being continued. Now, I then received advice that the company had been told by its legal people, you can't show the employees the video evidence because it could prejudice any other proceedings, notably criminal proceedings.

PN143

Now, what Mr Winter is saying is, here we are, how long, it is nearly two months later, and there is still no charges being laid, and on the face of it that charges will be laid, from what I can understand so far. It may or may not be right. And so the view that it somehow might prejudice criminal proceedings has got to be taken into account. So perhaps you could take me through where things stand in relation to the four employees, and address particularly also Mr Winter's point, that if a recommendation isn't going to solve this matter, perhaps a direction is required to the company to reinstate the employees and give them back pay till the date of their suspension in February.

PN144

MR USHER: With regard to the police inquiry, two weeks prior to the suspension we advised Cranbourne Police of our suspicions. Over those following two weeks they observed live our security system and they watched for a number of days the transactions that were happening. On the Sunday morning of the suspension there were three or four police officers from Cranbourne Station there, they were watching the transactions. They then said they had seen sufficient.

PN145

They came up to the front of the centre, spoke to all of the staff concerned, and then took it from there. Our instruction was extremely clear that it was now a police investigation, and please leave it at that. We had no further involvement. They took over at that point. We didn't ask them to do anything, they just did what they thought they had to do. When you issued your recommendation we contacted obviously our solicitor, and it was not until the morning that we spoke to Cranbourne Police, I spoke to Cranbourne Police, and they said you would be very foolish. That was as simple as that.

PN146

At that point we took legal advice, and they said please don't proceed down that path. I phoned the union and advised them. I have had one phone call from the union since. If the union wants to make an appointment to sit with our pay officer, it will be granted. But I have not had any contact from the union, certainly not to make an appointment to sit and discuss anything of these matters. Your recommendations we have complied with. The security in the bowl, there never was any undercover surveillance in locker rooms, and nor is there now.

PN147

All employees that have been there for six months or more have been advised of their rights to become permanents. I have spoken to every member of staff on that matter, and I believe that everything else we have our very, very best to comply with. The state of the investigation I do not know. I have no idea what the police are doing, I can't answer for them. And that is where we stand at the moment.

PN148

THE COMMISSIONER: So there has been one contact, Mr Usher, you say?

PN149

MR USHER: Yes.

PN150

THE COMMISSIONER: Was that contact seeking a meeting?

PN151

MR USHER: Yes. It was on the morning of the arranged appointment, that was the time that I spoke to Mr Marczenko, and I have not had any contact since. I don't know who you have called.

PN152

MR MARCZENKO: Well, I have actually spoken to Robyn directly on a number of occasions physically at the centre, and she has given me an undertaking that she would get you to contact me, because my understanding is you were overseas anyway, so you weren't contactable for a period.

PN153

MR USHER: Okay, well, that may have happened, but not direct to myself or to the company. I mean, the pay officer is in Warragul, she is there eight hours a day, six days a week, if you want to go over it. We have looked very, very closely. We have had a superannuation audit, and we found four staff members who were paid between $450 and $500 in any given month that superannuation was not paid on, and that has been addressed. Everything else was clear. We have had a full audit form those people.

PN154

We have had a number of taxation checks, we have had all sorts of audits from almost every department, and everything is clean. We have gone through our rates of pay. We believe they are absolutely accurate, and everything is above board, and we have got nothing to hid.

PN155

THE COMMISSIONER: Now, Mr Usher, you are responding to the point that has been made that a number of attempts have been gone through with the union to seek a meeting. I have spoken to Robyn, who I take it is the manager at Bowland?

PN156

MR USHER: Centre manager, yes.

PN157

THE COMMISSIONER: Who, on the face of it from what we are being told, responded to the union by saying I will contact possibly yourself and seek that you respond. How long have you been back in Australia?

PN158

MR USHER: I am in and out. I leave again tomorrow morning. I have been back for four days. We are five months, six months per year out of the country, both of the directors of the company.

PN159

THE COMMISSIONER: So when are you back on this occasion? You leave tomorrow, when are you back?

PN160

MR USHER: I leave tomorrow morning, I am back on Wednesday of the following week.

PN161

THE COMMISSIONER: Back on Wednesday of next week?

PN162

MR USHER: One week.

PN163

THE COMMISSIONER: One week away?

PN164

MR USHER: Yes.

PN165

THE COMMISSIONER: Okay.

PN166

MR USHER: If the union would like to meet - I mean, the union can meet Lottie Mescardrie in Warragul or at the centre any time during this week. I will set the meeting up.

PN167

THE COMMISSIONER: The outstanding issue is the issue of the four individuals whose employment was not continued, and who have this stigma over their head that they are thought to be people who weren't behaving honestly in the bowling centre. And in my view they do have an entitlement to proper process in regard to their employment, and the discontinuation of their employment. Can you, by the way, clarify for everybody here this morning what is the status of their employment at the moment. Are they under suspension, or is it a question of their employment is no longer ongoing with the centre?

PN168

MR USHER: I can't clarify it. I would be suggesting that from the evidence that we have - - -

PN169

THE COMMISSIONER: Because originally they were under suspension.

PN170

MR USHER: Okay. I would be suggesting that from what we have seen and from what the police have seen, that their employment would not be reinstated.

PN171

THE COMMISSIONER: So they probably should be regarding themselves as no longer employees of Bowland?

PN172

MR USHER: Yes, they should, correct.

PN173

THE COMMISSIONER: So if any of them have, for example, an opportunity to lodge an unfair termination claim, we can take it that as of today they are being officially advised that their employment is not going to be renewed with Bowland?

PN174

MR USHER: You can.

PN175

THE COMMISSIONER: Okay. So that is one.

PN176

MR WINTER: Could I clarify when that termination was taking effect?

PN177

THE COMMISSIONER: What I am suggesting, Mr Winter, is that it is effectively taking effect as of today. So if it is a 21 day period of notification, it starts from today.

PN178

MR WINTER: All right.

PN179

THE COMMISSIONER: Now, I hear what you say regarding the video evidence. Is it not possible that the company can sit down with the individuals and say that, for example, employee number one, we have video evidence that suggests that you were seen to be removing - this is hypothetical - you were seen to be removing goods from the shelves, putting them into your personal bag and walking out the door with them. You don't show the video, you simply give a general description of the evidence that you have.

PN180

Now, I realise that that could have an effect on any future proceedings, in the sense that if I am told this is the allegation against me, I can then start to think about, well, what is my defence to that, what do I say? But I think that is not a compelling reason why something of that order shouldn't be done. You don't show the video, but you do indicate. And I could then say, well, look, I was told by supervisor X that he wanted me to take these things to his house because he is having a barbecue that night, that is my reason, right? And similarly, like, some of the things that were related on the last occasion were that people were serving drinks, by way of example, to their friends and not charging.

PN181

And if that was related to an individual and it was said, well, look, on this particular day - because no doubt the video will show the day and the time that this was alleged to have occurred - on this particular day you were observed serving a tray full of drinks to a number of people, and you just waved them away and no money was received. And then the individual said, well, do you have an explanation for that? Now, that is a process that gives a person a fair chance to explain what happened, and I think something like that is highly desirable insofar as the individual is concerned. Now, do you have a response to that at this time?

PN182

MR USHER: My response is, without taking advice, that I don't see any problem with that either, I really don't, not at all.

PN183

THE COMMISSIONER: Yes. Now, you may well go to your legal people, and a legal person who is, you know, highly cautious, may well say, well, look, don't do that. But I just put it to you that there are four individuals here who are, on the last occasion, saying to us very strongly, we didn't do anything wrong, and we shouldn't have been terminated. If a person is being accused of being a thief, and basically, whichever way you describe it, if some of the things that were talked about on the last occasion were happening, it is, in fact, stealing from the employer.

PN184

It is a very big black mark hanging over them, and they should have an opportunity to clear their name if they can reasonably do so. Now, what you are saying, Mr Usher, then, you are able to meet with the union and the employees concerned.

PN185

MR USHER: Yes.

PN186

THE COMMISSIONER: You are back in Australia the middle of next week?

PN187

MR USHER: Yes.

PN188

THE COMMISSIONER: And I think it is necessary for someone at your level to actually do - - -

PN189

MR USHER: Yes, I agree.

PN190

THE COMMISSIONER: Because I think you were involved in the whole process.

PN191

MR USHER: Yes.

PN192

THE COMMISSIONER: And take the individuals through it. And on the last occasion the recommendation said, if at the end of the day an individual is found to have been - the judgment is that the actions taken against the individual were unreasonable, and the individuals put back on staff, then that person would be remunerated from the time the suspension took effect. So we are now two months down the track, but that was part of the recommendation on the last occasion, and I would expect that that would still be the case.

PN193

Now, it depends entirely on whether the individuals and the evidence against them can be judged as reasonable by yourselves, the individuals and their representatives. And at least one of them on the face of it has an opportunity to take an unfair termination case, if that is what he or she wishes to do.

PN194

MR USHER: Yes.

PN195

THE COMMISSIONER: Well, Mr Winter, let Mr Usher sit down, and what do you say about all that?

PN196

MR WINTER: I have no problems meeting with the company, and we have said that we should have gone ahead and met with the company over a month ago now. My concerns are that we have put it to the company on numerous occasions, have they been terminated or not? And it has now come to today that the company is now saying that they have been terminated.

PN197

THE COMMISSIONER: Now, when you say you have put it to them on numerous occasions, Mr Marczenko has said that, has he? Has he asked the company about the status of the employees, or what?

PN198

MR WINTER: And also the industrial officers have also asked, and we have always been told, well, we don't know, they are suspended, etcetera. And it has only been today that the actual terminations have taken place. There are some issues in relation to the length of service which will prevent us from lodging unfair dismissal applications, which, again, in this sort of circumstance there is an issue of fairness in relation to being suspended in February, and then just dragging it all the way through. But we believe that if we meet with the company we may be able to resolve a number of those outstanding issues in regard to payments of wages, etcetera.

PN199

But the issue of the suspensions, or now terminations, we believe, and we would ask that the company state on record that if we can show, or the individual employees can show that there was no thieving taking place, that they will - - -

PN200

THE COMMISSIONER: No improper behaviour.

PN201

MR WINTER: No improper behaviour, that they will abide by the recommendation that you issued on 3 March.

PN202

THE COMMISSIONER: Mr Usher, are you able to say that on the record this morning?

PN203

MR USHER: No.

PN204

THE COMMISSIONER: Well, what Mr Winter is seeking is, that if the parties agree - now, this is both you and the union, I take it, Mr Winter - if the parties agree that the evidence does not show improper behaviour on the part of the employees concerned, any of the four, that the recommendation that was made on 3 March will be respected, and that would require the individual to be reinstated and remunerated from the date of suspension.

PN205

MR USHER: I can't see that we would have agreement on that, I just cannot see that it would go that way from what I have seen. I mean, the police didn't do what they did without due cause.

PN206

THE COMMISSIONER: No. But, you see, Mr Usher, I hear what you say about you believe there is valid cause for the terminations. And no doubt you didn't simply rely on the - I take it you didn't simply rely on the police saying, look, I saw Bill Mansfield put $10 in his pocket when he took it from a customer, and he should have put it in the till. That you actually viewed the evidence yourselves and made an independent judgment about the strength of that evidence in terms of the employment of the individuals?

PN207

MR USHER: We did. The police were there for two weeks, and they watched it live for many hours.

PN208

THE COMMISSIONER: Sure. Yes, that is the police.

PN209

MR USHER: They, at a point on that Sunday morning, they watched it for three hours. They said we have seen enough of this, and they swooped, they did what they thought was the correct thing, and we abided by what they wanted to do. Obviously we had a severe problem in that area. We knew from our accounting that large sums of money were going missing. The police watched and watched and watched, and they said enough is enough, and off they went.

PN210

THE COMMISSIONER: And yet here we are - - -

PN211

MR USHER: Yes, I understand that.

PN212

THE COMMISSIONER: It is February, the whole of February, whole of March, most of April, and nothing has happened from the police.

PN213

MR USHER: I can't answer for them.

PN214

THE COMMISSIONER: Having said that, there are other very serious assaults that have occurred in recent times which were the subject of a lot of publicity involving footballers, that you would say something should have been dealt with on that by now, but nothing has happened, so the wheels of the justice system might grind pretty slowly.

PN215

MR WINTER: What we are after. The company has already agreed to abide by your recommendation on 3 March, and there is a provision in that in regard to possible reinstatement and remuneration. All we are asking the company to do is, that if individuals are found not to have been involved in any improper practice, that those individuals be reinstated in accordance with that recommendation.

PN216

Now, you have already agreed to abide by the recommendation. All we are asking you is for a further commitment that you will comply with it if the evidence isn't there. I can't see anything unfair about it. If someone is not guilty, then they are not guilty.

PN217

THE COMMISSIONER: Yes. And the point here, Mr Usher, is, it is not a question of the union saying we have reached the judgment that this person is innocent of any wrong doing. It is an issue of you, the company, and the union agreeing an objective viewing, or an objective consideration of the evidence leads to a conclusion that there is no reasonable basis for that individual to have been suspended in February. Now, it is an agreement situation. And so if the company sees something and it forms a different judgment than the union, and it says, look, well, you mightn't think it is improper, but we know our business and we know what happened in that situation, and we do think it is improper, you haven't got an agreement.

PN218

Now, if you haven't got an agreement it may well be that the union will say, well, we still feel so strongly about this we are going to take it back to the Commission, because that is what the disputes procedure allows them to do. But all Mr Winter is saying is, if the parties objectively reach an agreement that there is no reasonable basis for an employee to have been suspended, that the terms of the recommendation will be abided by. Now, I just want to make sure that you do understand what is being asked of you.

PN219

MR USHER: Yes.

PN220

THE COMMISSIONER: Because at the moment you are saying you are not prepared to accept that proposition of Mr Winter.

PN221

MR USHER: No. What I am saying is, that the actions that we took were based on what we saw, therefore my opinions are strongly formed.

PN222

THE COMMISSIONER: Yes. No, that is understood.

PN223

MR USHER: I don't see where we will go - - -

PN224

THE COMMISSIONER: No one is questioning you have a strong opinion that the suspensions were justified, no one is questioning that.

PN225

MR WINTER: Can I just suggest something? Maybe if I make it a bit clearer. We have agreed we are going to sit down and discuss. We are not going to view the video, but we are going to discuss what is in it and the allegations, correct?

PN226

MR USHER: Yes.

PN227

MR WINTER: All right. You use one person as an example, all right. You make an allegation of Emma, that she was involved in something a bit suss. You put that point of view to us and Emma, and Emma turns around and says to you, and can demonstrate, well, that is not what happened, this is what happened and this is how it happened, right? We give a plausible explanation, that explanation isn't accepted. Then what should happen to Emma?

PN228

MR USHER: I think that we said earlier that the employees were terminated. Where are we going from here?

PN229

MR WINTER: Well, that is not in line with the recommendation, Commissioner.

PN230

MR USHER: Well, where do we go from here?

PN231

MR WINTER: Well, what we are saying is, you have agreed to abide by the recommendation of Commissioner Mansfield that was issued on 3 March. If we can show to you - you put up the allegations, and we can show to you, well, that is just not how it happened, this is what happened, and it is plausible and it is acceptable, then we would expect Emma to be reinstated.

PN232

THE COMMISSIONER: This is the crux of it, I think, Mr Usher. I know it is not without difficulty for you. And the proposition is that if an objective viewing, or a consideration of the evidence leads to a judgment that the basis for the suspension in the first place was unsound, then the individual will be reinstated. Now, that was the recommendation that was made. Are you able to - again, to ask you the question - you see, this requires you to say, having reconsidered the matter, having considered the evidence we acted on in the first place, having considered the other evidence which has been introduced, which is basically the explanation of the individual, we may have acted improperly, we may have acted without good cause. That requires you to make that judgment.

PN233

Because if it was employee A who is accused of doing certain things, and them employee A at the meeting gives you a reason as to why he or she did what was thought to have been done, okay, you are in a position where you either accept or don't accept that reason. Because an employee can come and say, well, look, okay, you saw me not take money, or you saw me put some money in my pocket from those drinks that I served instead of putting it in the till, but I really put it over in the till on the other side of the room because I needed to change a $20 note or something.

PN234

Now, it is up to you whether you believe that or not, because there can be explanations which to some people's minds may be plausible, but to your mind might be implausible. Because at the end of the day you were of the view that, as you have said again today, that a large sum of money was not going through the business that should have been going through the business. And I take it that that turnaround in revenue has been maintained since the suspensions, etcetera?

PN235

MR USHER: It has.

PN236

THE COMMISSIONER: And which tends to verify your view that prior to that time there were improper practices going on inside the centre.

PN237

MR USHER: There were, and it is very clear.

PN238

THE COMMISSIONER: Yes. So I am simply again making the point to you. Mr Winter is not saying, if he forms a judgment that the person was innocent, it is a joint judgment that the person was probably innocent, and then what happens from there? And you are saying, sitting in that seat at the moment, is that you cannot give us an undertaking that the recommendation made in early March will be followed.

PN239

MR USHER: I suppose what I am saying in all honesty is that I don't see the point in wasting theirs, nor mine, nor the Commission's time in meeting and discussing it because I feel so strongly about it.

PN240

THE COMMISSIONER: But, you see, we are not wasting time, because in this case we are talking about the reputations and the justice or injustice that was meted out to four employees.

PN241

MR USHER: Are any of those employees working again?

PN242

THE COMMISSIONER: Well, we will come to that in a minute. They may or may not be working. But, you see, it may be that if you sit down with the union - you see, in a number of these cases I have found in unfair terminations the employee does not want his or her job back, but they want justice, they want what they see to be a fair deal. And it may be if you sit down with the union and you say, you go through your evidence, you hear the alternative explanations by people, and you say, okay, there is a reasonable doubt in regard to this particular case.

PN243

The union may well say, well, look, and the employee may well say, I don't want my job back but I want a bit of compensation, okay? Is that a possibility?

PN244

MR USHER: Yes.

PN245

MR WINTER: Well, we can sit down and meet with the company and go through those issues, because we haven't got our blinkers on. We see that there are a number of ways of settling this dispute, but the parties have to meet.

PN246

THE COMMISSIONER: Yes, sure, okay. Well, I think we have established that reasonably clearly then. On the face of it, from what Mr Usher is saying, the four employees will not be re-employed by the company, but there is an opportunity to discuss compensation if there is a reasonable case established that they were dealt with unfairly in terms of the basis of their termination.

PN247

MR WINTER: If we can meet as of Wednesday next week, we will withhold lodging those, because of the termination as of today, we will withhold lodging those unfair dismissal applications until after we have met with the company next Wednesday, to see if we can - - -

PN248

THE COMMISSIONER: And can I make it clear as well that I am certainly open to another notification in this matter, and we can come back here again if we have to.

PN249

MR WINTER: Yes, thank you.

PN250

THE COMMISSIONER: Now, I know nobody - like, the union is now, you have got two of your officials here, there is two individuals at the back, Mr Usher is here. But this is not an unimportant matter.

PN251

MR WINTER: There is another individual who was making their way in, but they went to our office by mistake, so there is three.

PN252

THE COMMISSIONER: All right. So three of the four have made the effort to come in.

PN253

MR WINTER: And it is about clearing their names, I suppose.

PN254

THE COMMISSIONER: Yes, sure. Now, do either of the individuals wish to respond to Mr Usher's question about whether or not they have obtained other employment?

PN255

MR WINTER: Look, there is four individuals that have got to feed families. Some may have part-time employment. I know of one individual who has had no employment, but none of them have got regular incomes.

PN256

THE COMMISSIONER: Sure, okay. Thanks, Mr Winter. Now, can the parties at this point agree on a time for a meeting?

PN257

MR USHER: I am happy to say next Thursday, but I am cautious. I do have a return date.

PN258

MR WINTER: I would like to settle a time with Mr Marczenko and the company now so it is clear that there is no - - -

PN259

THE COMMISSIONER: All right. So it is agreed though quite clearly here today that there will be an agreed time next week sometime?

PN260

MR WINTER: Yes.

PN261

THE COMMISSIONER: Okay. Mr Usher is back in Australia as of about Wednesday.

PN262

MR USHER: As I said, my only caution is that, yes, I do have a return date of Wednesday.

PN263

MR MARCZENKO: I am available all day Thursday, any time.

PN264

THE COMMISSIONER: So I will strongly encourage both parties to sit down, look at this matter as objectively as you can, understanding there are strong views on both sides. The company strongly believes it dealt with the people appropriately, not necessarily fairly, but appropriately, and the union strongly believes that the people were dealt with unfairly certainly, and probably believes they were dealt with inappropriately as well, in that the individuals are all quite firm in the view that they didn't do anything which was improper or could be described as stealing from the company.

PN265

Now, as I say, I am available to have another hearing of this matter if necessary. I hope it isn't necessary, and I hope I get advice from the union and the company as of the end of next week - and I will look to the union to give us this advice - that the matter has been resolved and the file can be closed. If it isn't, and the union seeks another hearing, or the company might seek a hearing for one reason or another, we will list it as soon as practicable, probably sometime the following week.

PN266

And I will take account of Mr Winter's request that directions be given in this matter. But that needs to be taken account of in the context of the provisions of the Act and the powers that we have. All right. Is there anything else needed this morning?

PN267

MR WINTER: Nothing further, Commissioner.

PN268

THE COMMISSIONER: Good. This matter is adjourned.

ADJOURNED INDEFINITELY [10.47am]