C2004/3248, Transcript of Proceedings [2004] AIRCTrans 2829 (22 July 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 5411

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT IVES
COMMISSIONER RICHARDS

C2004/3248

APPEAL UNDER SECTION 45 OF THE ACT
BY MARIA LALOGIANNI AGAINST A DECISION
OF SENIOR DEPUTY PRESIDENT DRAKE IN
TRANSCRIPT OF 29 MARCH 2004 IN U2003/8071

CANBERRA

10.00 AM, TUESDAY, 13 JULY 2004

PN1

SENIOR DEPUTY PRESIDENT ACTON: Could I have the appearances, please?

PN2

MS K. EASTMAN: There is no appearance by the appellant at this stage. If the Full Bench pleases, I appear for the respondent.

PN3

SENIOR DEPUTY PRESIDENT ACTON: Do you seek leave, Ms Eastman?

PN4

MS EASTMAN: I do, yes.

PN5

SENIOR DEPUTY PRESIDENT ACTON: Yes, there is no appearance by the appellant. Ms Eastman, I understand there's been some correspondence between Minter Ellison and the appellant - - -

PN6

MS EASTMAN: There has.

PN7

SENIOR DEPUTY PRESIDENT ACTON: - - - in respect of this matter.

PN8

MS EASTMAN: The reason for this, your Honour, is that your Honour made directions on 11 May which required the appellant to file and serve her submissions by 8 June. We haven't received anything, so we made attempts, not only through the Registry of the Commission, but also ourselves, to contact Ms Lalogianni to find out whether she intended to file any submissions and what she proposed to do. We also endeavoured to contact her last week to see whether she was indeed intending to appear at the hearing this morning.

PN9

She informed my instructing solicitor in Sydney that she considered that the hearing was set down for 19 July, so we informed her that that wasn't the case. And there's been some correspondence. Can I hand up, and have leave to file, the statement of Jennifer Patterson, who is my instructing solicitor in Sydney, which she prepared yesterday? It annexes the relevant correspondence and attempts that we have made to contact Ms Lalogianni. The original is the first and then there are two copies.

PN10

DEPUTY PRESIDENT IVES: What's a brief summary of this, Ms Eastman?

PN11

MS EASTMAN: The brief summary perhaps is that we attempted to contact the appellant on Thursday last week to find out whether she was intending to appear. Then you will see that yesterday there were some exchanges of email, and perhaps if I can take you to the final documents in the statement, which is annexure K. I'm sorry, my version is not paginated, we did this fairly quickly yesterday. You will see annexure K, it's the third-last page in. You will see, working from the bottom up, that there's an email from Ms Patterson to the appellant asking her to confirm whether she would be attending the hearing of the matter tomorrow. So that was yesterday.

PN12

Then you will see that Ms Lalogianni's replied saying, "I was of the view it was on 19 July 2004". And then Ms Patterson then sends her a further email, and this followed some inquiries with the Commission confirming that the matter was listed for today. And you will see that Ms Patterson confirms not only the date for the hearing, but also the address and the time for the hearing. And that's been our last contact with the appellant. We have heard nothing further from her from that time. So we would say, - and we understand she's received those emails, and we've received no indication or notice of an application for an adjournment or any other basis why she's not appeared this morning.

PN13

SENIOR DEPUTY PRESIDENT ACTON: Ms Eastman, I will give you leave to appear. In terms of this statement, I will mark it as R1.

EXHIBIT #RI STATEMENT OF JENNIFER PATTERSON DATED 12/07/2004

PN14

SENIOR DEPUTY PRESIDENT ACTON: Ms Eastman, I can indicate to you that the appellant rang the Registry this morning and indicated to the Registry that she was of the belief that the respondent wasn't going to appear in this appeal so she wasn't going to appear. My Associate subsequently rang the appellant and indicated to her that the appeal would be proceeding at 10 o'clock, and that the Commission understood that the respondent would be appearing at the hearing. So that was the extent of that conversation, as I understand it. What do you say we should do?

PN15

MS EASTMAN: Well, our submission would be that the appeal should be dismissed. I think, if you've had the opportunity to read our submissions, there are three issues; the first issue is whether or not the appeal has been filed out of time and whether or not the appellant should be given leave to file out of time. I think she's four days late. But, in any event, that issue is a live issue. Then there's the issue of whether or not, for the purposes of section 45 of the Act, leave to appeal should be granted. And that may well require the Members of the Full Bench to have regard to the grounds of appeal raised by the appellant. There appears to be eight. One of them seems to overlap, but there appears to be eight grounds.

PN16

I have endeavoured to address all of those grounds, as best we understand them, in our written submissions and say that this is not a case where there's any demonstrated public interest or the other considerations that the Full Bench may have as to whether or not to grant leave. So, in the circumstances, there are perhaps a number of approaches that the Full Bench may wish to take this morning. One is to just determine the appellant doesn't have leave to file her appeal out of time. That would be the end of the matter.

PN17

Or, alternatively, if the Full Bench is minded to have regard to the other issues with respect to whether or not leave should be granted to determine it on the question of whether or not leave should be granted. But the appropriate approach may well be that the matter should be dismissed for want of prosecution, the appellant has had notice of the hearing for today. She has received, as we understand it, a copy of the directions that had been made by your Honour on 11 May. She's failed to comply with any of those directions. So she, herself, has not filed any submissions and we understand it has not contacted either the Commission or us to indicate that she required an extension of time, or should be given some leniency in terms of filing her material.

PN18

So the indications are that while the appellant sought to commence the appeal, she has done nothing in terms of prosecuting the appeal. Any work that's been done in terms of the preparation of this matter has been done by the respondent. And so that may be an - I haven't checked the - I wasn't sure this might happen this morning, but I haven't checked the relevant rules in terms of what approach the Full Bench may take in terms of dismissing the appeal. So there are a number of options, but whichever one I think the Full Bench considers appropriate.

PN19

SENIOR DEPUTY PRESIDENT ACTON: We will adjourn briefly.

SHORT ADJOURNMENT [10.08am]

RESUMED [10.13am]

PN20

SENIOR DEPUTY PRESIDENT ACTON: Ms Eastman, what we propose to do in this matter is this; we will hear from you today in regard to any matters you wish to put in respect of the merits of the appeal, bearing in mind that we've received your written submissions in that regard and they've been read by the Bench. Having regard to the provisions of section 170CIB of the Act we will write to the appellant giving her the opportunity to put written submissions in respect of the appeal, within a limited time frame, and to file those in the Commission and serve them on the respondent. You will then have an opportunity to respond in writing to anything that's further put by the appellant. In the event that there are no further submissions put by the appellant in writing, then we will determine the appeal on the basis of the material filed to date, including the matters contained within the notice of appeal. So you may proceed in respect of the merits of the appeal and anything you wish to put in that regard.

PN21

MS EASTMAN: If we'd reached this point I initially intended to make very short oral submissions with respect to each of the grounds of the appeal. And what I might propose in terms of the interests of time, and given that the grounds of appeal are not entirely clear in their own right, is to address each of those grounds. I won't traverse the issues that I've raised in the written submissions with respect to the principles that apply with respect to leave to appeal, or the principles that apply in terms of the nature of the appeal.

PN22

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN23

MS EASTMAN: Those would be well known to the Members of the Full Bench. So if I could start by turning to paragraph 29.

PN24

SENIOR DEPUTY PRESIDENT ACTON: Before you do so, I will mark the written submissions that you've filed as R2.

EXHIBIT #R2 RESPONDENT'S WRITTEN SUBMISSIONS

PN25

SENIOR DEPUTY PRESIDENT ACTON: Yes, paragraph 29?

PN26

MS EASTMAN: Yes. This is just under Ground 1. Perhaps, if it assists, as I am taking you through this is to have also with you the notice under section 45 that the appellant filed on 23 April 2004. I understand that should be in the material that's before you.

PN27

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN28

MS EASTMAN: By way of opening, it's probably fair to say that the grievance that the appellant appears to raise in the various grounds of appeal is really just her unhappiness with the decision, that she disagrees with the way in which Senior Deputy President Drake approached the matter and the way in which the evidence was assessed. And it's really her dissatisfaction with the outcome of that proceeding rather than any identified error of law, or clear demonstrable errors of fact, that the appellant has raised in her grounds.

PN29

The first ground is she says that there was no notice or opportunity to respond. This appears to go to the issue of whether or not she was given sufficient notice of the possibility of termination of her employment, and then the opportunity to reply to those matters. And that's as best as we can understand it. You will see in her notice under paragraph 1, under heading, "Notice and Opportunity to Respond", her complaint is that Senior Deputy President Drake did not consider nor give any weight to the fact that the employer did not give her sufficient notice or, indeed, any notice of possible termination, and thus there was no opportunity for her to respond to that notice.

PN30

And she then refers to some of the evidence that was before the Senior Deputy President in terms of various letters that were sent to her from the period late August through to December which provided her with notice that her employment was in jeopardy. The facts of the case, I don't know whether you wish me to take you back through the matters, but it was that the appellant was initially employed by AQIS as a part-time officer to perform operational duties at Sydney Airport. It was never the intention that she be employed on a full-time basis or that her employment would be converted to full-time work at some later stage. The nature of the operational work involved inspections and working on the floor of the airport.

PN31

The circumstances of her application with respect to the termination of her employment arose because she had applied to undertake the College of Law program, which is the final step before somebody becomes admitted as a solicitor in New South Wales. It deals with the practical aspects of qualification. It appeared from the evidence that the appellant had completed a law degree at the Australian National University sometime before. She'd enrolled at a much earlier stage at the College of Law and hadn't completed that course. Once she obtained employment with AQIS she decided that she would like to complete the College of Law course and took steps to re-enrol in that course, without informing her employer that that's what she intended to do.

PN32

Having been accepted in the College of Law course, she then sought leave for a three month period to attend the College of Law to undertake her studies. And she says the reason for this was that she wanted to obtain qualifications as a solicitor and that might assist her finding other positions in AQIS at some later stage. The various people to whom she reported who made the assessment of the leave application all considered that the operational requirements in terms of her particular role as a part-time quarantine officer didn't require her to have qualifications as a solicitor, so the leave was not approved.

PN33

Notwithstanding that the leave had been refused, the appellant took it upon herself to take on the College of Law course and left her employment on 25 August 2003, and she didn't return. So, as Senior Deputy President Drake found in her decision, it was clear to the appellant that she had not had authorised leave to attend the College of Law Program. Nevertheless, she took it upon herself to do so. At some later stage it appears that the appellant also became unwell and she discontinued her College of Law program, but she didn't communicate to the employer that she was unwell in any formal way or to remedy the circumstances of her ongoing absence from work.

PN34

Indeed, when she was asked by the employer to either return to work or to attend a relevant medical examination she refused to do so. It was those circumstances that lent themselves to the employer notifying her that her employment was at risk. And this is what Senior Deputy President Drake finds in her decision. The appellant failed to respond to the request to return to work or attend the medical examination. She failed then to respond to a further notice that her employment was at risk. And then steps were taken on 5 December to terminate her employment. All of that is neatly summarised, and I have outlined that in the written submission.

PN35

So we then come back to the grounds of appeal. Ground 1 is the notice and opportunity to respond. Now, the appellant doesn't indicate anywhere in her notice the material that she says was either failed to be considered by Senior Deputy President Drake, or material that she says should have been accorded a great deal more weight than was accorded. So it's a little difficult to know exactly what the essence of her grievance is. But, as I have indicated in our written submissions at paragraph 30; at paragraph 23 of the written reasons of the Senior Deputy President she makes clear the factual finding that the respondent communicated clearly with the applicant the direction that she was required to return to work or attend a medical examination.

PN36
And also made it clear to her, and I can provide you with a transcript reference at PN1132 which is part of the oral reasons, that there was no issue in this case about the failure on the part of the employer to adequately notify the appellant, or to give her the opportunity to respond to the steps that were proposed to be taken. And that involved either her attending work or attending the medical examination if she failed to do that to then move to terminate her employment.

PN37

The appellant raises in Ground 1 of her notice of appeal that somebody should have telephoned her on the mobile phone. Well, there was evidence before Senior Deputy President Drake that attempts had been made to contact the appellant over time on the mobile phone; the phone was either turned off or on calls, when messages were left were never answered. So that appeared to raise a new issue. So in our submission we say that with respect to this first ground that there was not sufficient notice or that there was no notice, that's just not something that's supported by the facts or the facts that the appellant herself relied upon. And we say that Ground 1 discloses no appealable error.

PN38

The second ground is the failure to take into account relevant considerations. What I have endeavoured to do is to try to, as best I can, summarise what the appellant identifies as the considerations that she says Senior Deputy President Drake failed to take into account. And I have done that at paragraph 33 of the written submissions. So there appears to be a contention that there was a failure to take into account Australian Public Service values and the relevant Public Service Act, failure to take into account that the appellant had provided medical certificates, or had medical certificates. The union became involved in those other matters.

PN39

Well, again, the first issue is; are these considerations in themselves relevant considerations having regard to section 17OCE of the Act. And it's difficult to see how these considerations that the appellant has identified are properly relevant considerations. Her complaint with respect to taking into account APS values and the APS Act appears to arise from the commencement of my oral submissions before Senior Deputy President Drake - - -

PN40

DEPUTY PRESIDENT IVES: I'm sorry, Ms Eastman, presumably the reference in 34 is CG3, is it, rather than CE3?

PN41
MS EASTMAN: Yes, my apologies. Thank you. The first issue in terms of the complaint that relevant considerations weren't taken into account appears to be a complaint about a matter that I raised in my opening of oral submissions before the Senior Deputy President, and if one has regard to the transcript at PN1034 to 1037, what those paragraphs indicate is setting out, as I have indicated to the Full Bench, the circumstances in which the appellant was employed. She was employed as a part-time officer, not as a full-time officer. This has never been a case where the appellant's employment was terminated because she requested full-time work and that was refused.

PN42

It was open to her at any stage to apply for any full-time position, and she may have been selected on merit if she was appropriately qualified. So it's an issue that comes as some surprise to us, because it certainly wasn't one of the issues that was before Senior Deputy President Drake when the matter was first heard. Then with respect to the other issues that she raises with respect to the findings that she had failed to provide medical certificates.

PN43

While the appellant included in her witness statement, if I can loosely call it that, because I think Senior Deputy President Drake accepted that the statement had a mixture of facts and submissions and various other matters. There were copies of medical certificates, but there was no evidence that these medical certificates, one of which covered the crucial period of time which was dated March 2004, had ever been provided to the employer at any relevant period of time.

PN44

In our submission we say the appellant appears to be somewhat confused about the existence of a medical certificate and the need to provide those medical certificates at the relevant period of time, which might justify her absence from her employment on the ground of an illness or sick leave. So this wasn't a case where there was any question on the part of AQIS that she might have been unwell. Indeed, she indicated if she was unwell, AQIS was concerned to know what the nature of her illness was in the extent of being able to accommodate her working commitments and required her to attend a medical examination. She simply refused to do so.

PN45

So in this respect it's difficult to see how this complaint with respect to her claim that she provided medical certificates is relevant to the issues, or shows some error on the part of the Senior Deputy President in terms of taking into account relevant considerations. So we say that this second ground must also fail. And I won't then elaborate on the other matters that I've set out in the written submissions with respect to that second ground.

PN46

SENIOR DEPUTY PRESIDENT ACTON: Excuse me, if I could just ask you about the medical certificates. My recollection of the material is that there was one certificate advanced at some stage which covered a lengthy period of time.

PN47

MS EASTMAN: Yes.

PN48

SENIOR DEPUTY PRESIDENT ACTON: And I think it had retrospective effect in a sense that it was issued on one date but it covered a period of several months preceding that date.

PN49

MS EASTMAN: That, yes - - -

PN50

SENIOR DEPUTY PRESIDENT ACTON: It seemed to be a - well, from what I recall of the document a suggestion that it was a copy of previous certificates, or in the place of previous certificates that had been issued. I don't know whether my assumption of that is right. But, in any instance, was there certificates issued from week to week or fortnight to fortnight, or month to month, for that lengthy period?

PN51

MS EASTMAN: No, there wasn't. And that was the difficulty. The certificate that you may be referring to - if you have the appellant's bundle of materials, this is her statement for unfair dismissal.

PN52

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN53

MS EASTMAN: She has a number of annexures.

PN54

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN55

MS EASTMAN: And the annexures have got page numbers on them, which are A and then it's a circle, so the medical certificates start at A45.

PN56

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN57

MS EASTMAN: And the one that your Honour may be referring to is the one which is page A50.

PN58

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN59

MS EASTMAN: That's a certificate that you will see is dated 13 March 2004. And that's a certificate that covers the relevant period of time, as I indicated, 16 September 2004 through to 1 December - sorry, 2003, through to 1 December 2003. That certificate, on the evidence, was never provided. And the fact that it was issued in March 2004 to have some supposed retrospective effect was seen for the first time when the appellant provided this material as part of the matters that she wanted to rely on in the hearing. That material was also provided very late in the day, not in accordance with the directions, and provided, I think, two or three days before the hearing.

PN60

So, there was no evidence that this certificate existed at the relevant period of time, and there was no evidence that this certificate was provided to anybody in AQIS for the relevant period of time.

PN61

SENIOR DEPUTY PRESIDENT ACTON: But was there certificates of a similar form to the preceding certificates which cover periods of, in some days, a day, and in some days, a week, provided over that period to the employer? Whether it be on the correct form or not?

PN62

MS EASTMAN: It's very difficult to know exactly what of these certificates were provided at the time. You will see, if I can ask you to turn back to a document that should be A37. That's a letter from the appellant of 8 September 2003 to Mr Sinclair, who is the Assistant Airport Manager.

PN63

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN64

MS EASTMAN: And you will see it says:

PN65

Please find attached a medical certificate.

PN66

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN67

MS EASTMAN: There was an issue then about her providing the original certificates or faxed copies of the certificates.

PN68

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN69

MS EASTMAN: Then you will see that there's another letter on the following page, which is a handwritten dated 12 September 2003. And she says:

PN70

In relation to the medical certificates, I'm organising to have certified copies sent to AQIS. I am not willing to part with the originals.

PN71

Now, the issue of the medical certificates - I don't know whether you have with you the statements that were filed on behalf of AQIS in the material.

PN72

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN73

MS EASTMAN: There should be a statement of Mr Burton.

PN74

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN75

MS EASTMAN: In terms of the correspondence about the medical certificates and what the nature of her leave is, he has two letters that are annexed to his statement. They are behind tab 8. That's AB8. That's the letter instructing her to provide an appropriate leave application with supporting documentary evidence to cover her absence to date. And then the next letter, which you will see behind tab 9, is he makes a reference to having faxed through to the airport copies of medical certificates.

PN76

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN77

MS EASTMAN: Because they were faxed copies. So that explains that correspondence from the appellant which was included. Then you will see he's also included a copy of her letter. In the statement of - I think it's the statement of Mr Sinclair, which should be just before you in the bundle, he also deals with the question of absence from duty at paragraph 22 and onwards. There are a few people dealing with the medical certificates. Sorry to jump you around here.

PN78

His tab 8, which is a letter from her on 1 September 2003, has attached to it a number of medical certificates. So that covers the period 21 August 2003 to the 22nd. Then th 24th to the 31st. Then there appears to be one that also covers 28 August to 30 August.

PN79

Then he attaches the one of 31 August to the 7 September 2003. And you'll see there's the letter from her on 8 September. That's the letter that I took you to in the appellant's material. So to find out what the attachment was, the attachment appears to be the medical certificate that covers the period 8 September through to 15 September. Now, that's it. And that was the evidence in terms of the medical certificates that had been provided. So the one certificate that the appellant says she had, that covered the critical period of time, is a certificate which on its face didn't exist until March 2004.

PN80

It's purported to be a copy, but it was never something that was provided to AQIS at the relevant period of time. So it's perhaps a long way of answering your question, that there were some certificates covering a small period of time. There were still concerns about the nature of whether or not those certificates complied with what the employer required her to do in terms of being able to have authorised leave by providing the original certificates. And it's after that period of time that she's then asked to attend a medical examination. There's nothing else. Thank you.

PN81

COMMISSIONER RICHARDS: In fact, I think, Ms Eastman, the appellant in this matter, admitted on transcript of the original proceedings that there were no other medical certificates if AQIS didn't have them. Because I think there was a claim that the originals had been sent in their mail.

PN82

MS EASTMAN: I think she did raise that. But - - -

PN83

COMMISSIONER RICHARDS: But if I can just take you to transcript of that paragraph 565, the question is put to her by yourself, "Do you agree you provided no medical certificates after 15 September 2003?" And the reply was, "No, I don't actually agree with that but I'll accept it if AQIS doesn't have them". So I think that that gives some comfort to the point of view, if you don't possess them, well, she'd concur that they didn't exist, bar the retrospective one that came into proceedings at a later date.

PN84

MS EASTMAN: That's why - and also Beverley Smith's statement, which is included in the material, also deals with the question of the medical certificates, and she was the person who had the contact with the appellant to say, "We'd like you to come in and have a medical examination". So there are a number of people at AQIS who were dealing with her on this issue.

PN85

COMMISSIONER RICHARDS: Just on that issue of the medical examination, is it one of the facts in this matter, at least from your perspective, that the reason for the non attendance at the first offer of the medical examination was that the appellant was in attendance at the College of Law program on that day. It wasn't a refusal out of the blue just not to attend, it actually came to pass that she was elsewhere in attendance at the non approved course that day.

PN86

MS EASTMAN: I think that's correct. And it really wasn't until the hearing when the appellant gave the evidence that it became clear at what point she was attending the College of Law and at what point she had ceased the College of Law. From AQISs perspective, once she had failed to return to work as at 25 August 2003, having indicated that she intended to complete the College of Law program which, coincidentally, ended on 5 December 2003, the - her immediate supervisors at AQIS were under the understanding that she was attending the College of Law. She'd also provided these medical certificates but it wasn't apparent until the hearing that she'd also abandoned her College of Law studies at such an early stage.

PN87

Can I turn then to the third ground which is a claim with respect to harsh, unjust or unreasonable. The primary ground of appeal appears to be that Senior Deputy President Drake failed to fully read or give consideration to her submissions and then she says, "There was a context in which her submissions should have been read" and that was some earlier complaints that she had raised with the employer.

PN88

The second aspect of that claim or ground of appeal is that the Senior Deputy President did not give much weight or consideration to the effects of the termination on her life, nor the reasons that AQIS took into account in not enabling her to use her entitlements under the certified agreement.

PN89

Well, as I've indicated at paragraph 40 and onwards in the written submissions, it's very difficult to see how this ground can be maintained. The transcript makes it clear that notwithstanding that the appellant had been late in filing her material, during the course of the morning of the hearing and during the various breaks, the Senior Deputy President made it clear to the appellant that she had read the material and would take it into account. She also made it clear that it was open to the appellant to provide any further information if that's what she wished to do and the transcript clearly indicates that. So it's very difficult to see how this ground, that there had been a failure to read or give considerations to her submissions can be maintained.

PN90

Likewise, as I've indicated at paragraph 42, it's very clear that the effects upon the appellant were something that Senior Deputy President Drake was clearly aware of during the course of the hearing but also a matter that she took into account and I've set out at paragraph 24 of the written reasons, the reference to the effects of the termination on the appellant as the Senior Deputy President noted, it had far reaching ramifications for her, both socially and financially.

PN91

So we say that on a fair reading of the transcript of the oral reasons and also the written decisions, it can't be said that this was a consideration that had not been taken into account and hadn't been given due weight and we say that ground 3 discloses no appealable error in this case.

PN92

The fourth ground is a ground again raising questions of weight. Many of these matters seem to wish to traverse the facts again so they perhaps go beyond what is proper for an appeal for the purposes of section 45. But this complaint appears to really encapsulate that the appellant maintains that she should have been entitled to certain leave entitlements under the certified agreement while she maintains that she believed she had that entitlement.

PN93

Her failure to accept that her employer determined, for operational reasons, that the leave was not appropriate in the circumstances, is not something that she appears to want to accept even at this stage. And so the issues that she raises with respect to ground 4 are really a complaint about the failure to accord her leave because she believed that she was entitled to that leave and she's not prepared to accept those operational considerations.

PN94

So you'll see that in a sense ground 4 doesn't really raise any error as such, it just really repeats her complaint that she was denied leave that she believed that she was entitled to and she refers there to sick leave, paid leave, unpaid leave, study leave, miscellaneous leave, reduced hours. And she also makes a complaint about procedural fairness. It's not entirely clear to us what her grievance is with respect to this ground of appeal. She seems to take issue by saying that the Senior Deputy President's factual findings were wrong and ridiculous but she doesn't indicate the basis upon which she says that is the case.

PN95

I've dealt with this ground of appeal very briefly at paragraphs 45 through to 48 of the written submissions. In our submission we say that the issue was properly covered and canvassed by the Senior Deputy President at paragraph 13 of the written reasons which I've set out at paragraph 46. She says:

PN96

All of the relevant officers of the respondent who dealt with her applications for leave and other accommodation made it clear to the applicant that the PLT course...

PN97

that's the College of Law course -

PN98

...was not one suited to the operational needs of the respondent.

PN99

That was a reasonable management decision having regard to the operational requirements of the respondent. If the appellant was to raise a proper ground of appeal under this heading, in our submission, she would have to go behind those reasons and she adduced no evidence at the hearing nor challenged any of the respondent's evidence that there were no sound operational requirements with respect to why she was refused leave at that particular period of time.

PN100

The fifth ground then is that the appellant says there were wrong and irrelevant questions asked in the determination of the issue of abandonment and you'll see, under paragraph 5 on the notice of appeal, she says the member asked herself the wrong question in determining the issue before her. The question she asked was:

PN101

If I had authorised leave and there were no health issues, would I have continued with my studies?

PN102

And she says:

PN103

This is a silly question because it does not take regard of the reality that in my situation - was that I could neither go to work nor study due to deteriorating health.

PN104

Again, it's difficult for us to understand how she says this constitutes an error of law in terms of whether or not the Senior Deputy President posed the wrong question with respect to the relevant provisions of the Act that had to apply.

PN105

As far as my review of the transcript can ascertain, it appears that this ground of appeal is concerned with an exchange between the Senior Deputy President and the appellant during the course of the hearing. The appellant was given time and invited to make some oral submissions.

PN106

At the conclusion of her oral submissions the Senior Deputy President indicated that she herself had some questions of the appellant just to tease out some of the issues and the grounds on which she said there had been an unfair termination of her employment. The question that's identified in this ground of appeal seems to be one of the questions that the Senior Deputy President raised as part of her exchange with the appellant, and I've noted the exchange in relation to these issues at paragraph 50 of my written submission, and that's at the transcript 1005 to 1031, and in particular at 1029 to 1030.

PN107

Now, in terms of the extent to which the relationship between the appellant's attendance at the College of Law and her illness was concerned, I've set out at paragraph 51 by reference to paragraphs 20 and 21 of the Senior Deputy President's written reasons how she dealt with those issues in terms of whether or not she asked herself the wrong question in terms of this issue. And as I said, we've done our best to try to understand this ground of appeal, but it seems to be confusing what would be asking the wrong question as a question of law and confusing the exchange between the Senior Deputy President and the appellant during the course of the hearing which was designed to enable the Senior Deputy President to better understand the appellant's submissions at that time.

PN108

In our submission, we say this ground discloses no error of law or procedural error on the part of the Senior Deputy President.

PN109

COMMISSIONER RICHARDS: Ms Eastman, still in this sort of contextually related - during the prior proceedings, was it ever contested that apart from the ambiguous approval/non-approval issue that arose in the documentation, and there was later a clarification - an oral clarification by Mr Burton, was it, I think - - -

PN110

MS EASTMAN: Yes.

PN111

COMMISSIONER RICHARDS: - - - some two days subsequent to the issuing of that so called ambiguous notice. Was it ever contested that that oral clarification was inadequate or otherwise ambiguous. I'm just trying to see whether that's got some relationship to this issue. From my own point of view, I can't quite see anything that takes you back to that issue at all, but I don't know - - -

PN112

MS EASTMAN: Well, I'll be fair as I can to the appellant. I think her understanding, in the leave form she's included in her material but it's also annexed to Mr Turner's statement at tab 9. There was a standard form that was to be completed and there were two boxes - there was a box that had a tick next to it, either approved or not approved. When Mr Sinclair first ticked the box, he didn't cross out approved or not approved, he just ticked the box.

PN113

So, the appellant took that as an approval of her leave, and then Mr Sinclair became aware that he hadn't perhaps done what might have been prudent in the circumstances and made it very clear to her the lead was not approved. That was cleared up by him and Mr Burton some time later.

PN114

COMMISSIONER RICHARDS: That's right. It was contested shortly after that that there was ambiguity or there'd been an effective approval. But once the oral clarification took place, there was no further contest to my knowledge that there was a direction not to attend, that that leave was not approved, was there, after that oral clarification.

PN115

MS EASTMAN: The next step was that the union then became involved, and Ms Emily Barnardos I think assisted the appellant. The appellant relied on that document as having approved leave, and she never departed from that view. So, as far as she was concerned, anything that occurred after by way of clarifying that was not something that she believed she had to take into account. She relied on the fact that the document that had been ticked, even though it didn't indicate approved or not approved, was sufficient in her mind to say that she had authorised leave.

PN116

When the clarification issue arose, she then involved the union, and there was an exchange of correspondence between the union and Mr Turner in terms of what the position on leave was and how that clarification should then be dealt with. But I think in answer to your question, you'll see in the appellant's bundle of material, or it's also included in Mr Turner's statement at tab 7, you see there's a letter from the union to Mr Turner on 29 August.

PN117

And you'll see in the third-last paragraph, Ms Lalogianni applied for leave and when the form was returned to her, she was led to believe that the leave had been approved. Mr Sinclair admitted that the form had been filled in in an ambiguous manner and left Ms Lalogianni only a voice mail - so, that's the oral communication with her - indicating that in fact the leave had not been approved. So, the issue continued but not between Ms Lalogianni and Mr Sinclair but at that higher level.

PN118

SENIOR DEPUTY PRESIDENT ACTON: Am I right in recollecting that she'd accepted a position in the course before she applied for leave?

PN119

MS EASTMAN: I'm sorry, I can't hear you.

PN120

SENIOR DEPUTY PRESIDENT ACTON: Am I right in recollecting that she'd accepted a position in the course before she applied for leave?

PN121

MS EASTMAN: That's correct. She - - -

PN122

COMMISSIONER RICHARDS: If I can just do her some justice - I think she contested that didn't she by saying that she accepted the position but she had indicated orally to the Registrar or whomsoever that it was contingent on her getting leave approval.

PN123

MS EASTMAN: She said that when she gave her evidence at the hearing, but it was clear on the documents and the train of events that the inquiry had been made to the College of Law on 29 July, she'd been accepted on 30 July, and it wasn't then until 8 August that she then made that formal application for study bank leave. She did say however that at an earlier performance review when they looked at future training opportunities, that she says she mentioned that to Mr Akm at that time. He gave some evidence and was cross-examined about that and said, well, at no stage did she say that the College of Law was a course that she intended to do at that stage.

PN124

But I agree with you that she did indicate that when she gave her evidence at the hearing, which was not what she'd set out anywhere at an earlier stage, that she had indicated to the Registrar of the College of Law that she would need to obtain that leave. But it - - -

PN125

COMMISSIONER RICHARDS: That's after having accepted - yes.

PN126

MS EASTMAN: But there were documents that were subpoenaed from the College of Law in relation to her application for admission. And I don't know whether all of that material was tendered before Senior Deputy President Drake, but there was nothing in that material that indicated any correspondence between the appellant and the College of Law indicating a conditional acceptance of the place in the College of Law. It may well be in terms of the time frame in which she was then to commence that course two or three weeks later in August.

PN127

The sixth ground, returning to that, is the issue of a failure to give a definition of abandonment. Again it's difficult to understand how this is properly a ground of appeal. And I've dealt with this again very briefly in paragraphs 53 to 55 of the written submission. In our submission we'd say whether or not somebody had abandoned their employment is something that would be objectively assessed on the evidence.

PN128

While the appellant in her own mind may not have believed that she'd abandoned her employment, her own subjective views are not going to be determinative of this issue, and that the Senior Deputy President's finding - and that's at paragraph 21 of the written reasons - that there had been an abandonment of employment - was based upon the evidence, including that the evidence that the appellant relied on herself to show that she did nothing to indicate to her employment any intention of returning to work or continuing with her employment in the face of her unauthorised absences from 25 August onwards.

PN129

So, the failure to provide a definition of abandonment is not in itself in our submission a proper ground for appeal and it discloses no error on the part of the Senior Deputy President in making what is a factual finding that the appellant abandoned her employment.

PN130

The seventh ground seeks to raise issues with respect to a failure on the part of the Senior Deputy President to consider the appellant's attempts to return to the workforce. This all seems to relate to issues that occurred in effect after the decision to terminate her employment had been made. It perhaps is an unhappy coincidence that Mr Small's letter confirming the termination of employment, which was sent to her on 5 December 2003, coincided with a fax, which I think may have been undated, to Ms Beverley Smith on the same day from the appellant. And Ms Smith was clear in her evidence and also when she was cross-examined that she didn't see this letter until some days later, that the appellant was prepared to return to work.

PN131

In our submission we'd say this is not a relevant consideration because these are events that occurred after the decision had been made and after the employer had taken into account the events from August onwards. By 5 December he had been clear that the appellant had either refused to attend to medical examination or she had refused to return to work as directed. There is nothing in the material that evidence any intention on the part of the appellant to return to work at any earlier stage.

PN132

And so to the extent that there was some communication between the appellant and Ms Smith on 5 December 2003 wasn't a significant matter in terms of determining whether or not there were valid reasons for the termination of her employment. And you'll see that at paragraph 59 I've reproduced paragraph 22 of the Senior Deputy President's written reasons with respect to these issues.

PN133

And she specifically addresses and takes into account at paragraph 23 of the written reasons the question of 5 December being the date by which the appellant indicated that she may be prepared to return to work. Again, in our submission, we say there's no appealable error that's disclosed with respect to ground 7.

PN134

Then finally, ground 8, which appears to be a repetition of one of the earlier grounds and that there was a failure on the part of the Senior Deputy President to read the statement and the submissions and a failure to give any consideration to her arguments, well a clear reading of the transcript, and I've given you the reference earlier, shows that not only was the appellant given the opportunity to provide evidence by way of oral evidence, which she said she didn't wish to do, she was also given considerable time to prepare her oral submissions at the conclusion of the evidence.

PN135

She then made some oral submissions. She was asked questions by the Senior Deputy President. So a fair reading of the transcript shows that there was ample consideration and opportunity for the appellant to make the submissions that she wished to make to raise the issues that she wished to make before the Senior Deputy President. It also shows that the Senior Deputy President was quite proactive in terms of trying to better understand the appellant's case and to understand the basis upon which she brought her claim with respect to the termination of her employment.

PN136

Those appear to be the grounds that the appellant relies on with respect to the substantive appeal. We've done our best to address each of those grounds. We've done so without the benefit of the appellant's submissions, or without references to relevant parts of the evidence or the transcript, but we say that having regard to the substantive issues raised on the appeal and having regard to the considerations that the Full Bench may wish to turn its mind to with respect to whether or not leave should be granted, in our submission we say leave should not be granted.

PN137

I did note that there had been an earlier decision of a Full Bench of the Commission handed down on 1 July this year, 2004, a decision of Senior Deputy President Marsh, Deputy President McCarthy and Commissioner Cargill, and I can make copies of these and provide you the reference. It's the matter of Peter Andrew Gardiner v Nationwide Oil Pty Limited. It concerned an appeal under section 45 with respect to the termination of employment. It raised similar issues to the current case in terms of the employee on a form of unauthorised absence from his work and the failure to provide to his employer a reason for his absence from work.

PN138

That was an issue that was considered in whether or not leave to appeal should be granted and at paragraph 15, it's a very short decision of the Full Bench, only 16 paragraphs, at paragraph 15 of the Full Bench, the Full Bench indicated that where the Senior Deputy President Harrison who had made the original decision, had made a finding as a matter of fact that the employer had failed - employee had failed to contact his employer to advise of his absences from work and the reasons for doing so. But that an attack on those reasons did not disclose a seriously arguable error, such that leave should be granted to appeal.

PN139

The print number for that decision is PR948724 and I draw it to your attention because it's a decision of July this year which, while the facts are not entirely the same or of the same character as the present matter, it raises that question about the types of reasons raised and the reasons that the Senior Deputy President in the present case found for the termination of employment. Unless there are any other particular matters that your Honours wish me to address, those will be our submissions.

PN140

We'd also seek to make an application with respect to costs. Section 347 of the Act provides that costs may be ordered if the proceeding is brought without reasonable cause. In the present case, the appellant has had notice of the hearing today, she's failed to attend.

PN141

SENIOR DEPUTY PRESIDENT ACTON: Ms Eastman, if you wish to make an application for costs, you should file such an application separately.

PN142

MS EASTMAN: I was just going to indicate generally that we wish to make that application in light of this morning's events and I was going to propose, if it was suitable to the members of the Full Bench, that we include in our submissions in reply if we have that opportunity in light of the directions made earlier this morning, the question of costs in our application for costs at that stage.

PN143

SENIOR DEPUTY PRESIDENT ACTON: The application for costs will be dealt with separately, as a separate matter. The application will be processed by the Commission separately.

PN144

MS EASTMAN: Unless there are any other matters that I can assist the Full Bench - - -

PN145

COMMISSIONER RICHARDS: Just that one issue of alleged fact, if you like, Ms Eastman. It's important for the Full Bench just to have it clear as to what was approved and what was ambiguously approved or not approved and so forth and what was not approved per se. That goes to this question I asked before about whether leave was ever authorised. I might just take you to transcript of the original matter at paragraph 357 and the question was put to yourself to the appellant as to whether or not Mr Sinclair, in that oral communication, had clarified that the leave hadn't been approved at that time and that was 20 August and the appellant replied, "He clarified to me orally but by that stage I'd called the college and confirmed my place". So, it seemed to have been accepted by the appellant that she was orally informed on August 20 that the leave that she was allegedly taking was not approved.

PN146

MS EASTMAN: That's right.

PN147

COMMISSIONER RICHARDS: And it was not subsequently contested.

PN148

MS EASTMAN: That's right.

PN149

COMMISSIONER RICHARDS: Yes, thank you.

PN150

MS EASTMAN: At no stage was there approved leave.

PN151

SENIOR DEPUTY PRESIDENT ACTON: Thank you. Ms Eastman, we will proceed as we previously indicated to write to the appellant and seek any further submissions she wishes to make. If there are further submissions made, we will give you a further opportunity to respond to those submissions. Otherwise we will determine the matter on the basis of the material before us. I'll now adjourn.

ADJOURNED INDEFINITELY [11.03am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #RI STATEMENT OF JENNIFER PATTERSON DATED 12/07/2004 PN14
EXHIBIT #R2 RESPONDENT'S WRITTEN SUBMISSIONS PN25