C2004/1167, Transcript of Proceedings [2004] AIRCTrans 1604 (28 April 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 10751
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON
SENIOR DEPUTY PRESIDENT CARTWRIGHT
COMMISSIONER HARRISON

C2004/1167

APPEAL UNDER SECTION 45 OF THE ACT BY
WILLIAM MELLOR AGAINST THE DECISION AND
ORDER OF DEPUTY PRESIDENT McCARTHY AT
PERTH ISSUED ON 29 JANUARY 2004 IN U2003/2091
RE TERMINATION OF EMPLOYMENT - REMEDY

SYDNEY

11.35 AM, TUESDAY, 20 APRIL 2004

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN1

SENIOR DEPUTY PRESIDENT HARRISON: There are no appearances here in Sydney. We'll take appearances in Perth.

PN2

MS K. FAWCETT: If the Commission pleases, I appear for the appellant in this matter.

PN3

MR M.E. JENSEN: If the Commission please, I appear for the respondent in this matter and seek leave to appear.

PN4

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I take it both of you need leave to appear and that will be granted. We're happy for you to remain seated when making any submissions so we're able to see you on the television monitor. Would you both bear in mind that the microphones are particularly sensitive and the shuffling of papers will be picked up and maybe a little distracting for both you and for us so try and keep it to a minimum. Also, any whispering will be most likely picked up so if there's anyone in court there instructing you and you wish to speak to them, it might be a good idea to move away from the bar table unless you want us to hear the whispering.

PN5

We have received some written submissions and I might identify them and mark them now. From you, Ms Fawcett, your outline of submissions filed I think on 2 April we'll mark A1 and some further submissions filed or at least received by us this morning I'll mark A2.

EXHIBIT #A1 OUTLINE OF SUBMISSIONS FROM MS FAWCETT

EXHIBIT #A2 FURTHER SUBMISSIONS

PN6

SENIOR DEPUTY PRESIDENT HARRISON: I don't know if these are from you, Mr Jensen or not but from Phillips Fox, the respondent's outline of submissions we'll mark - and we received 16 April - R1.

EXHIBIT #R1 RESPONDENT'S OUTLINE OF SUBMISSIONS

PN7

SENIOR DEPUTY PRESIDENT HARRISON: Ms Fawcett, did you provide Mr Jensen with a copy of the submissions lodged today?

PN8

MS FAWCETT: Yes, Senior Deputy President, I did.

PN9

MR JENSEN: I received those this morning on the way to court, Senior Deputy President.

PN10

SENIOR DEPUTY PRESIDENT HARRISON: All right. Now, are there any preliminary matters that either of you wish to attend to.

PN11

MR JENSEN: Just two matters in the submissions for the respondent. There are two errors in it. At paragraph 25, it reads:

PN12

The unchallenged efforts of Kevin Green at paragraph number 285 -

PN13

that should be paragraph 485.

PN14

SENIOR DEPUTY PRESIDENT HARRISON: 485, yes.

PN15

MR JENSEN: And in paragraph 34, it reads:

PN16

The evidence of Kevin Green in paragraphs number 4782 -

PN17

that should be 478.

PN18

SENIOR DEPUTY PRESIDENT HARRISON: Yes, thanks. Any like matters that you want to attend to now, Ms Fawcett, in your submissions?

PN19

MS FAWCETT: No, Senior Deputy President, although I would ask for some guidance about the extent to which the Commission seeks us to make oral submissions today in respect to this matter.

PN20

SENIOR DEPUTY PRESIDENT HARRISON: That's just what I was going to come to. We've had an opportunity prior to this hearing to read the submissions that have been filed that are pretty much comprehensive but we are prepared to give you an opportunity to address any further matters in them. However, we are persuaded that we should first hear both of you in relation to the issue of leave. Ms Fawcett? Don't feel obliged to say more than what you've said but now is your opportunity to do so if you wish.

PN21

MS FAWCETT: I would seek to say something more than what has been said already. I simply say that I note that in the respondent's outline of submissions they have extracted extensively from a summary of the position in relation to leave in the Commission from a recent Full Bench decision of Smith v Kimball and I would say that we agree that that approach as set out in paragraphs 6 to 8 of that decision is the appropriate approach for the Commission to take in relation to leave. In respect of the appellant's case, the appellant's case is that there is error in the decision at first instance and it's on that basis that we proceed.

PN22

SENIOR DEPUTY PRESIDENT HARRISON: Thank you. Anything more? Mr Jensen?

PN23

MR JENSEN: Yes, we say the applicant's submission on the request for leave don't address where that error exists at all, don't identify that other than to say that they consider there is an error in fact and in law by the Commission. The issue of leave requires more than just a broad statement. It requires substantial submissions on it to demonstrate there's a palpable error. There is no submission in that regard so we say there's been no demonstration in the submissions there is an error or even some type of palpable error.

PN24

With respect to the issue of the public interest, this decision is a decision which affects two parties: the respondent and the appellant in this matter. It's not a decision which is going to set case law. It's not a precedent decision. We say, to say that it's in the public interest just doesn't exist. There's no broad public interest exists with this thing, there's no importance of it. It will turn on its own facts. So we say with regard to the proposition, there's no public interest to granting leave arising from it. If it please the Commission.

PN25

SENIOR DEPUTY PRESIDENT HARRISON: I don't imagine that it is appropriate then for you to say much in reply given the matters that have been addressed are those already in the written submissions, Ms Fawcett, but we'll give you the opportunity. Is there anything you wish to say in reply?

PN26

MS FAWCETT: Just briefly to clarify, Senior Deputy President that the errors relied on are set out in the remainder of the submissions and will be elaborated upon this morning.

PN27

SENIOR DEPUTY PRESIDENT HARRISON: All right. We intend to adjourn now for a short time to consider the issue of leave. You should both remain at least within the vicinity of the court room so that we can locate you and ask you to come back into court again. It might help you to know that - no, I was about to give you an assessment as to how I think. On reflection I won't. I take it neither of you will leave the floor. The Commission now adjourns.

SHORT ADJOURNMENT [11.45am]

RESUMED [12.06pm]

PN28

SENIOR DEPUTY PRESIDENT HARRISON: The Full Bench has considered the issue of leave and we are unanimously of the opinion leave should not be granted. These are our reasons for decision.

PN29

We have today heard an appeal lodged by Mr Mellor against the decision and order made by Deputy President McCarthy in prints 943172 and 943175. Mr Mellor had made an application pursuant to section 170CE of the Act following the termination of his employment with Collex Waste Management. He had been employed as a truck driver since May 2002. His employment was terminated in March 2003.

PN30

The decision and order under appeal dealt with the decision of remedy. They were preceded by an earlier decision and order in which the Deputy President found Mr Mellor's termination of employment to have been harsh, unjust or unreasonable. In the decision under appeal, the Deputy President declined to order reinstatement as was sought by the appellant, finding that such an order would be inappropriate. He made an order for the payment of 12 weeks pay in lieu of reinstatement.

PN31

Prior to this mornings hearing we had an opportunity to read the written submissions filed on behalf of the appellant and the respondent and we have now also considered the oral submissions made today by Ms Fawcett who appeared for the appellant and Mr Jensen appearing for the respondent. There are two grounds of appeal. The first challenge is to the finding of the Deputy President that reinstatement would not be appropriate and the other challenges the adequacy of the amount ordered in lieu of reinstatement.

PN32

We note that the matter was called on again for further hearing following his Honour's first decision and order. The appellant called no further evidence and relied on what had already been put in the earlier hearing. The submissions about reinstatement were directed solely to Geraldton. Nothing at all was said about his Honour's taking into account the viability of an order reinstating the appellant at any other place.

PN33

The respondent did call evidence and that related to the order sought by the appellant for reinstatement to Geraldton. The cross-examination of the respondent's witness was brief and did not relate to what is now put on appeal in submissions, in particular paragraphs 11 to 20 of what is now exhibit A1. It is not surprising that his Honour focussed on applying the statutory considerations in section 170CH to the evidence and submissions about Geraldton. He was not in error in doing so.

PN34

Insofar as the appellant challenges the amount ordered in lieu of reinstatement, we have considered all of the Deputy President's reasons for decision. The adequacy for his reasons for ordering 12 weeks was said to reflect error. We are not persuaded that this is so. Paragraphs 22 to 38 pay regard as he was required to do to each of the relevant provisions of section 170CH(7). Insofar as the requirements of that section involve the exercise of judgment, those findings were reasonably open to him on the evidence.

PN35

The reasons given by him, particularly given the absence of any real challenge to the evidence called at the second hearing, are adequate. They reflect no relevant error jurisdictional or otherwise. Further, contrary to the submissions of the appellant, the Deputy President did refer to and apply the approach discussed in earlier Commission decisions and in particular Sprigg. More importantly, however, he properly applied the provisions of the Act.

PN36

Section 170JF(2) of the Act provides that for the avoidance of doubt an appeal to a Full Bench under section 45 in relation to an order made by the Commission under subdivision (b) of division 3 may be made only on the grounds that the Commission was in error in deciding to make the order. In our opinion, the decision of Deputy President McCarthy is not attended with sufficient doubt as to warrant us reconsidering it. We have considered whether it is seriously arguable that he was wrong in respect of any of the findings made by him and challenged in the grounds of appeal. We are not persuaded that he was.

PN37

We have also considered whether an arguable case of appellable error has been demonstrated. We are not persuaded that the grounds of appeal demonstrate such error. This appeal does not raise matters which in the public interest or otherwise warrant granting leave to appeal. Leave is refused and the appeal is dismissed. The Commission now adjourns.

ADJOURNED INDEFINITELY [12.11pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 OUTLINE OF SUBMISSIONS FROM MS FAWCETT PN6
EXHIBIT #A2 FURTHER SUBMISSIONS PN6
EXHIBIT #R1 RESPONDENT'S OUTLINE OF SUBMISSIONS PN7