C2004/5830, Transcript of Proceedings [2004] AIRCTrans 3750 (23 September 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 13693
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

C2004/5830

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

and

LIPA MANAGEMENT SERVICES PTY LIMITED

Application under section 170LW of the Act
for settlement of dispute re alleged unfair
application of Disciplinary Procedure
(clause 2.9)

SYDNEY

10.01 AM, TUESDAY 14 SEPTEMBER 2004

PN1

MR DRANE: I appear on behalf of the Australian Manufacturing Workers Union. I represent Mr Gong.

PN2

MR WOODS: I seek leave to appear for Lipa Pharmaceuticals Proprietary Limited. With me is the Senior Human Resource Manager for Lipa, MS PORTELA.

PN3

THE COMMISSIONER: Any objection to Mr Woods appearing?

PN4

MR DRANE: No objection, Commissioner.

PN5

THE COMMISSIONER: Then leave is granted, Mr Woods.

PN6

MR WOODS: Thank you.

PN7

THE COMMISSIONER: The matter before the Commission is an application filed by the AMWU. It is a notice pursuant to section 170LW of the Workplace Relations Act. It is notice of an alleged industrial dispute under the dispute settling procedure in relation to an alleged dispute between the union and Lipa Management Services Proprietary Limited concerning the unfair application of the disciplinary procedure contained in subclause 2.9 of the Lipa Management Services Certified Agreement 2004. The notifier stated that at a meeting between the principal parties on 11 May 2004, the parties failed to resolve the dispute.

PN8

It is many months, of course, since that meeting in May 2004 but apparently, the matter is now referred to the Commission by the AMWU pursuant to section 170LW of the Act. Mr Drane, what is the story? It is your application.

PN9

MR DRANE: Thank you, Commissioner. If I may just - - -

PN10

THE COMMISSIONER: Perhaps before you go ahead, Mr Gong is the employee concerned in this matter?

PN11

MR DRANE: That is correct, Commissioner.

PN12

THE COMMISSIONER: Are you likely to call Mr Gong to give evidence, in which case he is not going to sit through the early proceedings.

PN13

MR DRANE: Certainly not at this stage. We would only be seeking - - -

PN14

THE COMMISSIONER: No, not at this stage. It is either "yes" or "no." He either is not going to give evidence, in which case he is welcome to stay. If he is likely to give evidence, then he is out the door until such time as he gives evidence.

PN15

MR DRANE: Okay. Under those circumstances, Commissioner, it may be necessary for Mr Gong to vacate. I would be seeking that the matter be dealt with in conference today only.

PN16

THE COMMISSIONER: A different thing. I want to hear from the parties at first instance just what is the issue in dispute, and what it is that you seek from the Commission.

PN17

MR DRANE: Thank you, Commissioner. Under those circumstances, if the matter is unresolvable and has to move to arbitration, then Mr Gong would be required to give evidence so it may be inappropriate for him to be here.

PN18

THE COMMISSIONER: No, it also may be inappropriate, of course, for Mr Gong to pursue whatever it is that he is pursuing in this application. I'm not jumping to conclusions. I don't know what the facts are. That is why I'm asking you to give me the facts but before you do so you have got to make the call about whether Mr Gong stays in and hears what you have to say and hears what the company has to say in reply, but I won't have him then giving evidence which might be tainted by anything that you might say or that the company might say in their opening responses to your opening submission.

PN19

MR DRANE: I understand, Commissioner. Under those circumstances, at least for the purposes of the opening submission, it may be best for Mr Gong to wait outside.

PN20

THE COMMISSIONER: All right. Thank you, Mr Gong. Would you mind waiting outside and we will call you when it is appropriate to give evidence. Now, Mr Drane?

PN21

MR DRANE: Thank you, Commissioner. If I may approach your associate, I just have some documents that give some history to this matter.

PN22

THE COMMISSIONER: Do you want to mark this package of documents?

PN23

MR DRANE: Yes, thank you.

PN24

THE COMMISSIONER: Are you going to refer to them separately, or is it one long - - -

PN25

MR DRANE: It would be pertinent to refer to them separately, Commissioner.

PN26

THE COMMISSIONER: Refer to them separately? All right. Well, you tell me what you have to say about them and when, and I will mark them accordingly.

PN27

MR DRANE: Thank you. Commissioner, this application, as the Commissioner has already stated, is under section 170LW of the Act. We submit that the Commission is empowered to hear such disputes. This dispute, as the Commission has already noted, arises from the application of the grievance procedure, and the Act does clearly state that the Commission is empowered to resolve disputes arising out of the application agreements under that part of the Act. Commissioner, what has arisen in recent times in relation to Mr Gong in his employment with the company is a series of warning letters for alleged poor performance and poor behaviour.

PN28

It is our respectful submission, Commissioner, that these letters have been issued unfairly, that Mr Gong either has not been guilty of the alleged behaviour concerned, or if he has been guilty of alleged performance issues, there have been mitigating circumstances. It is our submission also that Mr Gong has sought to explain these mitigating circumstances to the employer, and the employer has failed to give them due consideration. Mr Gong has been employed by the company for some 4 years. Up until recently, he had been considered to be an exemplary employee. Earlier this year, Mr Gong raised some issues around his grading, and he felt that those issues were not taken seriously by the company. With respect to the issue of - - -

PN29

THE COMMISSIONER: In which way did he raise the issue over grading?

PN30

MR DRANE: He raised those issues with his supervisor seeking that his grade be reviewed with a view to a possible upgrade because he believed he was working at a higher level than that for which he was being paid. On that issue, and with particular respect to his grading, Commissioner, we would submit that Mr Gong and also the other chemists that he works with are not employed under the appropriate award. They are currently employed under the Drug Factories Award, and we would submit that that is not the appropriate award for chemists, that they should be up under one of either the State or Federal ADSTE awards.

PN31

THE COMMISSIONER: Well, who grades him as a chemist?

PN32

MR DRANE: The employer. He is employed as an analytical chemist and subsequently - - -

PN33

THE COMMISSIONER: Just a moment. Mr Drane, you might be well rehearsed. You might have spent days thinking about this. This is the first time I'm hearing it. Your LW notice was about as scant as it possibly could be, so I'm trying to take this in as you go. So he is an analytical chemist and he is employed under which award?

PN34

MR DRANE: The New South Wales Drug Factories Award.

PN35

THE COMMISSIONER: The union says that he should be employed under something else. Yes, Mr Woods?

PN36

MR WOODS: Sorry, Commissioner, I just think it might assist the Commission if I could make this point, that my instructions are that Mr Gong is employed under the Lipa Management Services Certified Agreement, which is an agreement that was made by this Commission in January of this year.

PN37

THE COMMISSIONER: So what? It is obviously built upon an Award.

PN38

MR WOODS: I understand that.

PN39

THE COMMISSIONER: Which award?

PN40

MR WOODS: Well, there's a number of awards but the award that the agreement is read in conjunction with is the Drug Factories (State) Award in relation to this employee. There's a number of other awards in relation to other classifications.

PN41

THE COMMISSIONER: Well, we are only concerned about Mr Gong, aren't we?

PN42

MR WOODS: Certainly, yes.

PN43

THE COMMISSIONER: So you don't the dispute the fact that he is employed under the New South Wales Drug Factories (State) Award but also under the Lipa Management Services (2004) agreement? Right.

PN44

MR DRANE: Thank you, Commissioner. As I was saying - - -

PN45

THE COMMISSIONER: The union says proper award coverage is what?

PN46

MR DRANE: Either the State or Federal Drafting, Production Planners, and Technical Workers Award.

PN47

THE COMMISSIONER: Drafting, Planners?

PN48

MR DRANE: And Technical Workers.

PN49

THE COMMISSIONER: Well, if he has got a problem with award coverage, why are you here? Are you a signatory to the agreement?

PN50

MR DRANE: We are not, Commissioner, no.

PN51

THE COMMISSIONER: What is it? Is it an LK agreement?

PN52

MR DRANE: It is an LK agreement. We are just raising that as an issue of concern because - - -

PN53

THE COMMISSIONER: Well, it might be an issue of concern but is it relevant to - - -

PN54

MR DRANE: It is to the issue of Mr Gong's grading because if he is employed under the incorrect award, then he cannot possibly be correctly graded.

PN55

THE COMMISSIONER: So he believes he is under-graded, even under the State Drugs and Factories Award?

PN56

MR DRANE: That is correct. The two awards which I mentioned, the State and Federal award, they are related to the metal industry classification system, and the chemical industry/process industry awards or classifications which follow the 14 tier metal industry classifications. They are very similar, although the modules are still being developed for classifications for the laboratory industry.

PN57

THE COMMISSIONER: So be believes he is under-graded, so he talks to his supervisor and seeks an upgrade.

PN58

MR DRANE: That is correct.

PN59

THE COMMISSIONER: When did that occur?

PN60

MR DRANE: Earlier this year, around about - some time around March, Commissioner. It was then that things began to go wrong for Mr Gong.

PN61

THE COMMISSIONER: Well, what do you mean by that?

PN62

MR DRANE: On 8 April, he underwent his performance review. That can be found at tab 2.

PN63

THE COMMISSIONER: Okay. The performance review of Mr Gong is attached to a covering letter dated 8 April, private and confidential, addressed to Mr Gong from Mr Dzindziczak who is the Quality Control Manger of Lipa Management Services.

PN64

MR DRANE: That is correct.

PN65

THE COMMISSIONER: Okay, are you tendering that?

PN66

MR DRANE: Yes, Commissioner.

EXHIBIT #D1 MR GONG'S PERFORMANCE REVIEW ATTACHED TO A COVERING LETTER DATED 08/04/2004

PN67

MR DRANE: We note the first sentence under the heading: Re Performance Review:

PN68

We refer to your performance review of 8 April, 2004 and congratulate you on your good overall performance on a consistent basis.

PN69

We just take that to demonstrate there was no dispute about Mr Gong's performance prior to this, and as evidence of his good performance, Commissioner. At tab 3, Commissioner, we find the first written warning.

PN70

THE COMMISSIONER: Which is one week later?

PN71

MR DRANE: That is correct.

PN72

THE COMMISSIONER: 15 April, 2004.

PN73

MR DRANE: The letter, Commissioner, alleges - - -

PN74

THE COMMISSIONER: Who is the source of the letter? Someone else?

PN75

MR DRANE: Yes, Mr Jeffery Zimbler.

PN76

THE COMMISSIONER: Mr Zimbler, who is the QA Manager. What is the relationship between the QA Manager and the QC Manager?

PN77

MR DRANE: I'm not au fait with the exact relationship - - -

PN78

THE COMMISSIONER: Okay.

PN79

MR DRANE: - - - but I imagine that the QC Manager would be subordinate to the QA Manager.

PN80

THE COMMISSIONER: So what is relevant in tab 3? Are you tendering tab 3?

PN81

MR DRANE: Yes, Commissioner.

EXHIBIT #D2 MR GONG'S FIRST WRITTEN WARNING DATED 15/04/2004 FROM MR JEFFERY ZIMBLER, QA MANAGER

PN82

THE COMMISSIONER: What are the relevant parts of this document?

PN83

MR DRANE: The first paragraph, Commissioner, states:

PN84

This is your first official warning for non-conformance to Lipa's quality policy and confidentiality agreement, and your unacceptable behaviour towards addressing work-related issues.

PN85

We go down to the second-last paragraph and it makes a number of allegations - two specific allegations and I quote:

PN86

We found that you repeatedly adopted a negative and unacceptable behaviour towards addressing your concerns, such as blaming your work colleagues and ex-employees without any basis, and not bring any lab issues to the attention of the senior analyst or QC Manager.

PN87

It is our contention that that is not exactly what happened. We submit, Commissioner, that Mr Gong was, in fact, seeking to raise quality concerns at the time - - -

PN88

THE COMMISSIONER: Just a moment.

PN89

MR DRANE: - - - and if there had been any disparagement to - - -

PN90

THE COMMISSIONER: Just a moment.

PN91

MR DRANE: Sorry.

PN92

THE COMMISSIONER: Well, you might have a different view about that, but we are concentrating on what D2 contains at the present moment.

PN93

MR DRANE: Thank you.

PN94

THE COMMISSIONER: What else does D2 say that is of relevance?

PN95

MR DRANE: In the last paragraph on the first page, it says:

PN96

You must raise these issues directly with your immediate supervisor or QC Manager where remedial action is required.

PN97

Mr Gong alleges that that did, in fact, occur and that he got no response.

PN98

THE COMMISSIONER: Now, I've got someone else in the equation. We've got a Mr David Cornish, Operations Manager. Where does he fit into the hierarchy of things?

PN99

MR DRANE: I guess my learned friend here would probably be best at explaining that. However, I imagine Mr Cornish would be somewhere around the same managerial level as the QA Manager. I don't know how their quality system works, but usually the QA Manager operates with very, very authority even if they are not listed in a higher position within the company.

PN100

THE COMMISSIONER: Well, quite frankly, if you don't know how it works, then I don't know that you are the bloke that ought to be making these submissions. You ought to know how it works so that you can speak on it with some authority.

PN101

MR DRANE: I spent some considerable number of years working with quality assurance in the Defence Department so it is an issue that I have some background in, Commissioner.

PN102

THE COMMISSIONER: Okay.

PN103

MR DRANE: If I can take the Commissioner to page 2 of the same letter, and the second - at the beginning of the paragraph, beginning with the word "further":

PN104

Further, we have noted that you are holding onto copies of confidential documents belonging to Lipa without the knowledge or approval of the QC Manager outside the formal record-keeping system of the company.

PN105

The company is alleging that Mr Gong had spirited away documents that were not meant to be in his possession. Mr Gong contends - or we contend on Mr Gong's behalf that, yes, he was in possession of these documents but he merely kept them for record purposes.

PN106

THE COMMISSIONER: What, at home?

PN107

MR DRANE: No, at work. It is our submission, Commissioner, that there was no procedures available for the conduct of the tests concerned, and so Mr Gong merely kept copies of previous tests as records so that he could benchmark the results that he was obtaining from the tests he was currently doing. There was no sinister motive involved. It was merely a way of affording Mr Gong the means to continue his work. If I may clarify a matter, Commissioner. This is part of a conciliation conference at the moment. My learned friend is - - -

PN108

THE COMMISSIONER: You are giving me your opening view about what this dispute is. I'm still trying to find out what the dispute is about.

PN109

MR DRANE: Thank you.

PN110

THE COMMISSIONER: You are taking me into great detail to these exhibits that you have tendered.

PN111

MR DRANE: Thank you.

PN112

THE COMMISSIONER: Obviously, Mr Gong has received an official warning for a whole range of issues on 15 April from his QA Manager, wherever he fits into the hierarchy.

PN113

MR DRANE: That is correct, Commissioner. On 16 April, we move to tab 4.

PN114

THE COMMISSIONER: Just a moment. I think you haven't finished with tab D2. The next paragraph to the one that you referred to would appear to be fairly pertinent. It says and I quote:

PN115

...also the manner in which you communicate when discussing issues is totally unacceptable. You are very argumentative, defensive, and communicate in an insubordinate manner. Repetition of this behaviour will not be tolerated.

PN116

So now we have unacceptable communication between Mr Gong and his supervisors.

PN117

MR DRANE: We submit that that is not entirely true either.

PN118

THE COMMISSIONER: I'm sure you do but let us deal with the facts.

PN119

MR DRANE: Well, Mr Gong comes from a non English-speaking background. He also suffers from a speech impediment, he tends to stutter from time to time.

PN120

THE COMMISSIONER: Are you saying none of these have been taken into account?

PN121

MR DRANE: Well, certainly not given due consideration.

PN122

THE COMMISSIONER: Not given due consideration or not given the consideration that either Mr Gong or yourself may have expected, which is a different thing again.

PN123

MR DRANE: Well, we submit that they should have been given more consideration than they have been. As I was saying, Commissioner, Mr Gong does suffer from a speech impediment and it can be difficult for him to communicate at times and when he is trying to speak it can come across as aggressive whereas in actual fact he is just trying to speak.

PN124

THE COMMISSIONER: All right, so we have a first official warning on 15 April.

PN125

MR DRANE: If I may take the Commission to tab 4 which is a second warning. It is actually marked: final written warning dated 16 April 2004.

EXHIBIT #D3 FINAL WRITTEN WARNING DATED 16/04/2004

PN126

MR DRANE: In this letter, Commissioner, which followed the other letter by a mere 24 hours there are a number of other allegations levelled at Mr Gong.

PN127

THE COMMISSIONER: So on the 16th he is given a final warning, an insubordination of the day before.

PN128

MR DRANE: That is correct, Commissioner. It is our submission that what is referred to in that first paragraph pertained directly to Mr Gong's belief that he was inappropriately graded and certainly at the meeting we held with the company.

PN129

THE COMMISSIONER: Well, it is not even mentioned.

PN130

MR DRANE: No, it is not there.

PN131

THE COMMISSIONER: You might say what you believe it is but it is not even mentioned in this letter. Now, is there any communication between the union and the employer in response to any or all of these warnings challenging the warnings?

PN132

MR DRANE: Yes, there was a meeting between the parties on 12 May.

PN133

THE COMMISSIONER: Right, okay, we are still to get to that, okay.

PN134

MR DRANE: Sorry, Commissioner, I'm just putting Mr Gong's view of what is contained in these letters. In the second paragraph, Commissioner, the company alleges that Mr Gong refused to perform duties as requested, namely that there was a test he was required to conduct but the test wasn't carried out at the appropriate time.

PN135

THE COMMISSIONER: Right.

PN136

MR DRANE: I'm instructed by Mr Gong that the reason the test wasn't conducted at that time was there was a bottle left on his work bench with no work instructions, no method and it was 9 pm and the test would have taken a couple of hours to conduct and he was due to finish within the hour because he was working afternoon shift. So what Mr Gong has instructed me to say is that he was in no position to conduct this test. The final paragraph on D3, Commissioner, makes reference to Mr Gong being in possession of privileged and confidential information. We are unaware as to what this information is.

PN137

THE COMMISSIONER: So clearly on page 2 he is then placed on effectively threatened termination unless there are significant changes in his behaviour.

PN138

MR DRANE: That is correct. Some time in the following few days after this, Commissioner, Mr Gong was suffering from anxiety. He visited his doctor and took a few days off on sick leave. He was having difficulty sleeping, he was on medication for anxiety, he was very concerned that he was going to lose his job and it was causing him considerable stress, Commissioner.

PN139

THE COMMISSIONER: Yes, go ahead, please.

PN140

MR DRANE: Thank you, Commissioner. Can I take the Commission to tab 5.

PN141

THE COMMISSIONER: Tab 5 is a single-page letter on letterhead of the AMWU over Mr Drane's signature. What is at tab 5, Mr Drane?

PN142

MR DRANE: It was notification on behalf of Mr Gong to the company that we were seeking to raise a grievance in accordance with the procedures contained in the certified agreement.

PN143

THE COMMISSIONER: All right.

EXHIBIT #D4 NOTIFICATION TO RAISE A GRIEVANCE

PN144

THE COMMISSIONER: Yes, Mr Woods?

PN145

MR WOODS: I note that these various documents that my friend has handed up have been marked as exhibits this morning.

PN146

THE COMMISSIONER: Well, you haven't objected to them, that is why they are being marked as exhibits. They are being tendered, they are being marked as exhibits.

PN147

MR WOODS: I see. My friend has also asked the question this morning as to whether we are in conciliation proceedings.

PN148

THE COMMISSIONER: No, we are not in conciliation. You will have an opportunity to respond to any or all of these before I even think about conciliating. Before I conciliate I need to know what it is all about.

PN149

MR WOODS: I see, thank you.

PN150

THE COMMISSIONER: You will have an equal and opposite opportunity to inform me of the other side of the story. Not a one-way traffic here, Mr Woods, you ought to know that.

PN151

MR WOODS: Thank you.

PN152

THE COMMISSIONER: Mr Drane?

PN153

MR DRANE: Thank you, Commissioner. On 3 May I received correspondence from my learned friend, Mr Woods.

PN154

THE COMMISSIONER: Let me read D4 first. I note that in exhibit D4 the union expressed a view that it regarded the company's actions against Mr Gong in issuing two written warnings to be harsh and unreasonable. Yes, go ahead, please.

PN155

MR DRANE: Thank you, Commissioner. At tab 6 we have correspondence from my learned friend, Mr Woods, dated 3 May 2004. It was a reply to the letter marked D4 and as a result of that letter there was a meeting established between the parties. The letter states Wednesday 12 May but I think from memory it was 1 or 2 days either side of that because there had been conflicting appointments but it was on or around the 12th that it occurred.

PN156

THE COMMISSIONER: So the union involves itself on Mr Gong's part. The company does not meet with the union but it says it will meet with yourself, Mr Drane, and Mr Gong at the address of its solicitors.

PN157

MR DRANE: That is correct, sir.

EXHIBIT #D5 CORRESPONDENCE DATED 03/05/2004

PN158

MR DRANE: Commissioner, at that meeting - the meeting lasted some hour-and-a half, 2 hours, it was quite a lengthy meeting.

PN159

THE COMMISSIONER: You say in your notice, your LW notice, it was 11 May. This letter says it was 12 May. You have said that there was a bit of movement around it. When was it?

PN160

MR DRANE: I believe it was the 11th. I would have to check my diary to confirm that. Certainly it was on or around the 12th, it may have moved a day. My learned friend has just confirmed it was the 11th.

PN161

THE COMMISSIONER: It was the 11th, okay. So you met on 11 May.

PN162

MR DRANE: That is correct. We put our concerns to the company about what we deemed to be the unfairness of the issuing of these letters and also around issues pertaining to Mr Gong's grading. On the issue of the letters the parties were unable to reach any form of agreement. We contend that the letters were wrongfully issued and should be withdrawn. The company had their own view on that and refused to withdraw the letters. On the issue of Mr Gong's grading, we put forward to the company that his grading should be independently assessed by an appropriately qualified assessor - there is an appropriate industry training advisory board that looks after these - and the company rejected that proposition. May I take the Commission to tab 7, the letter dated 7 September 2004.

PN163

THE COMMISSIONER: We have another final written warning.

PN164

MR DRANE: Another final written warning, yes, sir.

EXHIBIT #D6 FINAL WRITTEN WARNING DATED 07/09/2004

PN165

MR DRANE: Again in the first paragraph the company alleges that Mr Gong had failed to comply with their quality policy and confidentiality agreement. Again the allegation was that he was in possession of test results that he should not have been in possession of. I am instructed that Mr Gong was in possession of these results for the same reason as he had been previously, that he needed them for comparison purposes as there were no suitable procedures available for him to conduct these tests.

PN166

THE COMMISSIONER: Are you saying a company that maintains quality control regime does not keep records and that an individual employee is required at the direction of his employer to maintain his own personal records of the company's workings?

PN167

MR DRANE: No, we are not saying that, Commissioner, we are not saying that.

PN168

THE COMMISSIONER: Well, what are you saying?

PN169

MR DRANE: What we are saying is that - and I don't know how their quality system operates, Commissioner, but what we are alleging is that when Mr Gong needed to conduct those particular tests the procedures were not close at hand and for whatever reason he needed to have suitable results from previous tests available for the purposes of comparison. That is what I'm instructed.

PN170

THE COMMISSIONER: That sounds a bit far-fetched to me on the face of it and I'm sure Mr Woods will have another view about that. It does sound a bit far-fetched that there wouldn't be such a testing regime and record-keeping regime that couldn't be drawn upon at any time by the relevant officer.

PN171

MR DRANE: It may sound a bit strange but that is my instruction, Commissioner. Unusual, but we would contend that out there in the industry it wouldn't be unheard of.

PN172

THE COMMISSIONER: It may not be unheard of but is it relevant to this case? I'm not talking about generalisations here. We are talking about Mr Gong and Mr Gong's contentions which you are relying upon entirely.

PN173

MR DRANE: That is correct, Commissioner, and certainly it is our position that he needed to hold on to these results for purposes of comparison.

PN174

THE COMMISSIONER: I notice there are a whole range of other things on the bottom of the first page of exhibit D6 that relate to continuing failure to act.

PN175

MR DRANE: That is correct. The second point and I quote:

PN176

The refusal to follow a legitimate request to conduct quality control analysis.

PN177

If we turn to page 2, Commissioner, it treats those two matters separately under point 1 and point 2 over the page. Point 1 states and I quote:

PN178

These records pertain to a batch of BM-001 which had already been released for sale. This is an unacceptable practice as all records must be stored with final batch cards for the purposes of full traceability. Your conduct contravenes the confidentiality agreement signed by you on 17 July 2000.

PN179

Now, I am instructed by Mr Gong that there was some conjecture about the results, that the results were inconsistent, that they weren't getting consistency with their results and Mr Gong was concerned about this and he was seeking that the results be investigated within the company.

PN180

THE COMMISSIONER: Is he personally responsible for the results?

PN181

MR DRANE: Well, he is certainly responsible for the tests and if he finds - - -

PN182

THE COMMISSIONER: Is be responsible for the results?

PN183

MR DRANE: Well, he has to - yes, I imagine so, Commissioner. He has to obtain the results from his test and he has to forward those results on. So I'm instructed that Mr Gong was concerned about a lack of consistency in the test results. You will have to understand I'm not a chemist so I can't speak with a great deal of authority on this matter, sir.

PN184

THE COMMISSIONER: Well, neither am I but I've had some exposure to the chemical industry.

PN185

MR DRANE: If I may take the Commission to paragraph 2 under dot point 1:

PN186

When this was put to you in our meeting on 2 September you responded that you needed the records for your personal use and in order to monitor senior analysts' performance.

PN187

I'm instructed by Mr Gong that that is not true. He contends that there was a different version of events to that, that wasn't true and he didn't say that.

PN188

THE COMMISSIONER: Has he maintained contemporaneous notes of that discussion?

PN189

MR DRANE: He has, Commissioner. He has kept a diary, Commissioner.

PN190

THE COMMISSIONER: Well, you say that there's another version of the events. The other version of the events might on some occasion be needed to be tabled.

PN191

MR DRANE: Correct.

PN192

THE COMMISSIONER: If he has not got contemporaneous notes and his diary is called for he might be a bit reluctant to hand his diary over. His diary could be summonsed if in fact that is the record upon which you might rely.

PN193

MR DRANE: We understand that, Commissioner. He does have very detailed notes. The notes aren't written in the Queen's English, Commissioner. As stated previously, English is a second language for Mr Gong. He comes from a non English-speaking background.

PN194

THE COMMISSIONER: Well, it might all have to be interpreted one day if he is going to rely upon them.

PN195

MR DRANE: I understand. If I may take the Commission to point 2 and I quote:

PN196

In further discussions with Darren and Jonathan I understand that legitimate requests to perform testing on finished product were refused by you.

PN197

There's no contention around the fact this testing was refused. I'm instructed by Mr Gong that the sample or the standard, if I may use that term, that was to be relied upon for the purposes of the test had degraded and Mr Gong was concerned about using a "degraded standard" for the purposes of conducting the test. So he wasn't refusing a directive to perform the test, he had valid reasons for not wanting to perform the test.

PN198

THE COMMISSIONER: Is there anything else on this matter that I need to - - -

PN199

MR DRANE: Yes, Commissioner, the next paragraph says:

PN200

It has also come to my attention that your testing output has significantly reduced placing undue pressure and burden on the rest of the quality control team. The testing of BM-001 - - -

PN201

THE COMMISSIONER: No need to go into that sort of detail. Obviously his work performance has diminished.

PN202

MR DRANE: Yes, we contend that that is not the case. I'm instructed that with respect to - - -

PN203

THE COMMISSIONER: Well, you know, objective records will show one way or the other. You might assert whatever you like but in the end objective records - - -

PN204

MR DRANE: Yes.

PN205

THE COMMISSIONER: If he does 40 tests a day and he is only doing 20 now, then his performance has dropped off. If he was doing 40 a day and now he is doing 50, obviously the point is not made.

PN206

MR DRANE: Well, our submission is that there was not - - -

PN207

THE COMMISSIONER: There must be some objectivity.

PN208

MR DRANE: Yes, that is correct, that there wasn't any agents available or suitable agents available to perform a test. In the first week there was a particular agent that was not available.

PN209

THE COMMISSIONER: Mr Drane, you are so well informed on all the minutiae of this matter it is extraordinary.

PN210

MR DRANE: I have to be, Commissioner.

PN211

THE COMMISSIONER: There is obviously another view on these things.

PN212

MR DRANE: I understand and I'm sure my learned friend - - -

PN213

THE COMMISSIONER: One day you may have to prove all of these points. You were instructed on them, you may have to prove them.

PN214

MR DRANE: I take that on board, Commissioner.

PN215

THE COMMISSIONER: Okay. So is there anything else in these six or does it all just end up with another final warning?

PN216

MR DRANE: Another letter. I imagine the Commission, will mark this next reference. It was another letter dated 9 September.

PN217

THE COMMISSIONER: I notice in the final paragraph, that there is a proposal to transfer him from afternoon shift to day shift?

PN218

MR DRANE: That is correct. There is some contention around the need to do that, Commissioner, and also, upon the financial impact that that will have upon Mr Gong and his family and whether or not it is a fair move.

PN219

THE COMMISSIONER: He is invited to respond to the company.

PN220

MR DRANE: That is correct. That meeting was scheduled for yesterday, Commissioner, but it was postponed in view of the fact that the matter was listed for today.

PN221

THE COMMISSIONER: I don't know why?

PN222

MR DRANE: Well, the parties agreed that it would be more pertinent to seek the assistance of the Commission. Notwithstanding our concerns over the reason for the transfer, we are nonetheless, concerned about the lack of 7 days notice for somebody to change shift, which would be a requirement under the award.

PN223

THE COMMISSIONER: What about the agreement? The agreement, presumably, overrides the award? What is the notice required under the agreement?

PN224

MR DRANE: My understanding is that the agreement is silent on that issue. I may stand corrected, but I understand it is silent.

PN225

THE COMMISSIONER: Okay. I notice we have a change of company in the letterhead of D6, from the earlier warnings. Is there any significance in that from your perspective?

PN226

MR DRANE: Not from our perspective.

PN227

THE COMMISSIONER: Exhibit D6, is under the letterhead of Lipa Pharmaceuticals. It has an ABN number, so presumably, it has a separate corporate identity. It is not the same ABN number as Lipa Management Services Pty Limited. Do you read anything into that?

PN228

MR DRANE: Not at this stage, Commissioner, but my learned friend, Mr Woods, may wish to clarify that.

PN229

THE COMMISSIONER: Okay, well, no doubt, the company will have a view about that. All right, and then, we finally come to tab 8.

PN230

MR DRANE: Thank you, Commissioner.

PN231

THE COMMISSIONER: What is tab 8?

PN232

MR DRANE: Tab 8, refers to the letter stating that Mr Gong, refused duties and that was leading to the meeting that was to be held yesterday.

PN233

THE COMMISSIONER: No, you told me a moment ago, that the meeting planned for yesterday, was about the change of shift.

PN234

MR DRANE: And the refusal of duties pertained to the change of shift, Commissioner. It was the company's plan to move Mr Gong, from finished product to raw materials.

EXHIBIT #D7 LETTER TO MR GONG ON LIPA PHARMACEUTICAL LETTERHEAD DATED 09/09/2004

PN235

MR WOODS: Commissioner, can I just make this one minor point in relation to that document, and that is, that there appear to be some handwritten notes in the margin which did not form part of the original document.

PN236

THE COMMISSIONER: I gathered they didn't.

PN237

MR WOODS: Thank you.

PN238

THE COMMISSIONER: Given that they challenge what is in it.

PN239

MR WOODS: Yes, that's correct.

PN240

THE COMMISSIONER: What little I have read of it, it looks as though someone has had a go at it and I haven't been provided with that clean copy, so to speak.

PN241

MR DRANE: Unfortunately, either have I, Commissioner. They refer to Mr Gong's handwritten annotations. At that point, we have nothing further to add at this stage.

PN242

THE COMMISSIONER: So what does this letter say or do? What is the outcome of this?

PN243

MR DRANE: It is another disciplinary letter alleging that Mr Gong, refused duties and we were concerned that the content of the letter would have ultimately led to his dismissal and we were trying - - -

PN244

THE COMMISSIONER: So it proposed a meeting between the parties on 13 September, which didn't go ahead?

PN245

MR DRANE: No, that is correct.

PN246

THE COMMISSIONER: Well, what you haven't told me and I have just picked up now in the very final paragraph:

PN247

Until the meeting at 2 pm, on Monday, 13 September, you remain suspended on full pay.

PN248

How long has he been suspended for?

PN249

MR DRANE: Since last Thursday, Commissioner.

PN250

THE COMMISSIONER: So in essence, your position is, that on Mr Gong's behalf, you challenge pretty much all of the material that is contained in the letters that the employer has felt necessary to issue to Mr Gong?

PN251

MR DRANE: Yes, Commissioner, at the risk of sounding like we are taking a big swipe, that is correct.

PN252

THE COMMISSIONER: Okay. What is it that you are proposing? You have referred the matter to the Commission, you draw my attention to the provisions of the dispute settlement procedure. What is it that the union is proposing in the course of these proceedings?

PN253

MR DRANE: Firstly, Commissioner, we would be seeking the assistance of the Commission in conciliation to try and resolve those matters that are in dispute and secondly - - -

PN254

THE COMMISSIONER: Well, with very great respect, I know absolutely nothing about the matters in dispute, apart from what you have told me and the other side is going to tell me.

PN255

MR DRANE: Should we be unable to reach a resolution through conciliation, we would be seeking that the Commission exercise its powers or the powers afforded to it by the relevant clause in the agreement, under section 170LW, to determine whether or not there had been a fair application of the grievance procedure - sorry, fair application of the disciplinary procedure contained in point 2.9. Thank you, Commissioner.

PN256

THE COMMISSIONER: Okay, thank you, Mr Drane. Now, Mr Woods, your chance. What is the other side of the story?

PN257

MR WOODS: Commissioner, until - - -

PN258

THE COMMISSIONER: And are you properly instructed on all aspects of the other side of the story? I note that you are accompanied today by Ms Portela.

PN259

MR WOODS: Yes.

PN260

THE COMMISSIONER: Ms Portela's name does not appear on any of the documentation before me, so, how are you properly instructed as to what had gone on that has led to the various authors of these letters?

PN261

MR WOODS: I consider, Commissioner, that I am properly instructed in relation to this matter.

PN262

THE COMMISSIONER: Okay, well, you then, you go right ahead and tell me what the other side of the story is.

PN263

MR WOODS: Commissioner, the company was unaware, prior to my friend's submissions today, as to firstly, what the alleged breach of the disputes procedure contained at clause 2.9, of the Lipa - - -

PN264

THE COMMISSIONER: The disputes procedure or the disciplinary procedure? It is an alleged breach of disciplinary procedure.

PN265

MR WOODS: It is alleged breach of the disciplinary procedure, yes. The company was unaware as to what the union was alleging was the particular breach of that procedure and after listening to my friend's lengthy submissions on the history of Mr Gong's recent employment with Lipa, I must say, I am still uncertain as to what that alleged breach is. There was no reference made at all to what the disciplinary procedure provides for and I might just take the Commission to that very briefly.

PN266

Without wanting to paraphrase it, I will note that it provides firstly, for verbal counselling, secondly, for a first written warning and thirdly, for a final written warning, and there are particular steps that relate to each of those warnings and in my submission, there was nothing raised by my friend that would challenge the way that the company implemented either the verbal warning or any of the written warnings.

PN267

Obviously, for the company this morning to come here and know what exactly, on the basis of my friend's dispute notice, the company was meant to have applied unfairly in relation to that disciplinary procedure. In fact, Commissioner, from my friend's submissions, it seems that most if not all of the company's obligations under that procedure have been met and I will say that without accepting my friend's submissions, but I will say that with reference to things such as Mr Gong was able to meet with the company on each instance of his alleged breach of his employment obligations.

PN268

That he was entitled to have a witness there at those meetings. That he was provided with an opportunity to respond to the allegations made in relation to his behaviour that he was then issued with warning letters. It seems to me and my instructions are that clause 2.9 of the certified agreement have been followed. The other thing I would say, Commissioner, is the company was obviously unaware as to what my friend was asking the Commission to do this morning and it was my understanding - and I have just noticed that the dispute listing has actually noted on it that it is listed for hearing, but it was my understanding that my friend listed the matter this morning for conciliation.

PN269

THE COMMISSIONER: Well, it is listed for hearing, you've both known that since you had the notice of listing. If there's any doubt then the parties should have conferred directly.

PN270

MR WOODS: Can I confirm then that this matter is not to be conciliated this morning?

PN271

THE COMMISSIONER: No. I told you at the commencement I will hear what the parties have to say before I decide how the matter might then be dealt with.

PN272

MR WOODS: I see.

PN273

THE COMMISSIONER: If you've got an objection to that, Mr Woods, then I don't know quite what your experience is to this Commission.

PN274

MR WOODS: I don't have a - - -

PN275

THE COMMISSIONER: Hearing matter formally on the matter first and then going to conciliation conference is a perfectly normal way of dealing with such matters.

PN276

MR WOODS: I have no difficulty with that, Commissioner.

PN277

THE COMMISSIONER: Fine.

PN278

MR WOODS: My only was that the company was uncertain as to what the union wanted the Commission to do this morning.

PN279

THE COMMISSIONER: Well, now you know.

PN280

MR WOODS: Yes.

PN281

THE COMMISSIONER: And now I know.

PN282

MR WOODS: Yes.

PN283

THE COMMISSIONER: Can we move on?

PN284

MR WOODS: Certainly.

PN285

THE COMMISSIONER: Right.

PN286

MR WOODS: In relation to the issues that my friend raised surrounding the warning letters and other warnings issued to Mr Gong, the company obviously says that the warnings were properly issued and related to what it considered to be serious breaches of Mr Gong's employment conditions with Lipa. On that basis the company will not withdraw the warning letters and considers that they should stand. If there is anything particularly that the Commission can assist in relation to ventilating the issues behind those warning letters, the company is obviously prepared to do that.

PN287

THE COMMISSIONER: Mr Woods, are you aware whether Mr Gong has been accompanied by anybody else in his many discussions with the employer leading up to these final warnings?

PN288

MR WOODS: Mr Gong has always been invited to have an employee representative with him during any disciplinary meetings. On some occasions, I'm instructed, that Mr Gong has informed the company that he does not want to have an employee representative with him. On other occasions, as my friend mentioned, there has been an employee representative with him including at that meeting on 11 May, Mr Drane was accompanying Mr Gong. There has been some difference in how Mr Gong has chosen to treat the various warnings issued to him.

PN289

Commissioner, I know my friend said that there are some contemporaneous notes taken by Mr Gong in relation to what has transpired at these meetings. I would also note that Lipa also have its own notes from those meetings. In relation to the final written warning which has been marked as exhibit D6 - - -

PN290

THE COMMISSIONER: Well, that is the final final one. There were two final warnings.

PN291

MR WOODS: Yes, yes.

PN292

THE COMMISSIONER: Which seems to be extending the disciplinary procedure by another step.

PN293

MR WOODS: The letter dated 7 September 2004 where it refers both to Mr Gong's examples of his failure to act in accordance with Lipa policy but also Mr Gong's response in that meeting and I will just confirm for my friend's benefit, that there are records of that disciplinary meeting and other disciplinary meetings. Commissioner, there's been no other example of any other Lipa employee who has had a difficulty over the application of clause 2.9 of the certified agreement. Lipa has approximately 250 people working at that site and Mr Gong is certainly one out on this matter.

PN294

THE COMMISSIONER: Is he the only person that has difficulty with the implementation of the procedure under 2.9?

PN295

MR WOODS: That is my instruction, yes. The company has - obviously from the documents that were put before the Commission this morning - the company has had some ongoing discussions with Mr Gong and it is a fairly chequered history for the last 6 months or so, but the company notwithstanding - - -

PN296

THE COMMISSIONER: Do you put anything down to the deterioration of the relationship having regard to - I think it was exhibit D1, that gave Mr Gong a big rap as recently as April of this year for his work performance?

PN297

MR WOODS: Commissioner, under the terms of the certified agreement every employee is assessed annually, their performance is assessed annually.

PN298

THE COMMISSIONER: The question I asked you, is there anything the company attributes to Mr Gong's behaviour or attitude or work performance specifically since April, that would appear to contradict the company's view of his work as at 8 April 2004?

PN299

MR WOODS: The company has had some recent minor - I shouldn't say minor - I withdraw that. The company has had some recent difficulties with the performance of Mr Gong but if I could take you to the actual reasons that the warning letters were issued that have formed a number of exhibits before the Commission today, the theme, I would submit, running through them is Mr Gong's performance firstly but secondly, also his practice of taking confidential documents relating to the product, the Lipa manufacture, and storing them in his own personal files and then when that is challenged and ultimately put to Mr Gong as to why he is doing that, Mr Gong's responses include things such as - which are reflected in the letter which is marked exhibit D6.

PN300

Mr Gong's response includes things like: they're for my personal use or they're to monitor senior analyst performance which clearly does not fall within his particular job specifications. So Commissioner, whilst that letter that you've taken me to, the forms exhibit D6, does say that Mr Gong has had good overall performance on a consistent basis, we say that since that time there's been a number of specific incidences relating not only to general work performance but also more specifically serious breaches of the company's policy with respect to its quality process and Mr Gong's taking of confidential documentation for reasons that he cannot give a proper or adequate explanation for.

PN301

I might add, Commissioner, that that issue was not only one that was in the final final written warning in September but also an issue that arose in a letter to Mr Gong in April of this year.

PN302

THE COMMISSIONER: Is that the retention of company records?

PN303

MR WOODS: Yes, yes. The Commission could understand, given the nature of my client's business and that is the manufacture of - - -

PN304

THE COMMISSIONER: Well, I really don't know what the nature of your client's business is because it hasn't been explained to me.

PN305

MR WOODS: If I could just take - - -

PN306

THE COMMISSIONER: It is a manufacturer of pharmaceuticals, is it?

PN307

MR WOODS: Yes, Commissioner, it is. There's obviously a need for the company to have strict quality processes and to keep thorough records as to the various batches that it produces and the quality of those goods and it does that and it has a multi-step process to ensure that its standards are met and that the standards that the Government requires are met. As a result of Mr Gong's behaviour the company considers that there is some risk that that procedure will be tend to be met and on that basis warning letters were issued.

PN308

There were also other issues raised within those warning letters but in my submission, that seems to be the central focus running through at least the last two warning letters that were issued to him. And because of that, Mr Gong was advised that he will be transferred into a position that was more able to be closely supervised by management and that is, to a raw materials analyst position. Mr Gong was informed that that transfer wouldn't result in a loss of remuneration, that his remuneration would remain unchanged, but Mr Gong nonetheless seems unwilling to perform that position and he advised the company of that last Thursday.

PN309

And that, Commissioner, is the background to why Mr Gong has been suspended on full pay whilst he provides a response to the company as to why he is refusing to perform that different position that would allow the company to more properly supervise his duties. And that, I think, is the background to why the company says that the warning letters were properly issued and why more pertinently, that the disciplinary procedure clause within the agreement, Clause 2.9 has been properly followed at all times.

PN310

THE COMMISSIONER: Anything further, Mr Woods?

PN311

MR WOODS: No. Thank you.

PN312

THE COMMISSIONER: Yes. Mr Drane, it seems to me that you have a couple of things that you need to respond to.

PN313

MR DRANE: Yes, Commissioner.

PN314

THE COMMISSIONER: The first matter raised by Mr Woods simply is, what is the alleged breach - - -

PN315

MR DRANE: Well, it is over the application.

PN316

THE COMMISSIONER: - - - of the disciplinary procedure by the company, having regard to this quite lengthy period now of warnings, alleged behavioural and unacceptable performance attitudes, opportunities to respond, subsequent warnings where detailed behavioural aspects are relayed to the - to Mr Gong and he is given the opportunity to respond, that the company has provided him with a verbal warning, with at least one formal written warning, and two final written warnings. Where is the alleged breach of the disciplinary procedures, apart from - apart from the alleged unfairness that has brought all this to a head?

PN317

MR DRANE: Thank you, Commissioner. I'm glad you emphasised that last point, because if we separate these into matters of substantive unfairness as opposed to procedural matters, my learned friend has argued that the procedure may well have been rigorously followed, but what we are alleging is that there are substantive matters that need to be addressed, ie, we are contesting the grounds upon which many of these warnings were based.

PN318

THE COMMISSIONER: Well, you see apart from your contentions from the bar table - - -

PN319

MR DRANE: Yes, Commissioner.

PN320

THE COMMISSIONER: - - - you have no other records to support the contentions, based on the instructions you have been provided with by Mr Gong.

PN321

MR DRANE: That is correct. Otherwise, other than any other people that may be relevant in the workplace who could provide statements in support of Mr Gong's contentions, as required.

PN322

THE COMMISSIONER: Are you quite sure there are persons who will provide substantive evidence in his favour?

PN323

MR DRANE: I would need to get instruction from Mr Gong if this matter is to proceed to full hearing.

PN324

THE COMMISSIONER: So you really don't object to the fairness of the procedure followed to date, so it is not a procedural fairness issue, it is a substantive fairness matter?

PN325

MR DRANE: That is correct. I mean, the procedure by and large has been adhered to. I mean, there may some tiny nitpicking issues around the edges, but our case wouldn't stand or fall on that, Commissioner. If they gave - - -

PN326

THE COMMISSIONER: Procedural fairness is a very grey area, Mr Drane, I'm sure you are aware of that.

PN327

MR DRANE: Yes, Commissioner.

PN328

THE COMMISSIONER: That certainly seems to me that on the face of it, Mr Gong has had plenty of opportunities to respond to the allegations that have been put to him about his work performance, about his behaviour, about - behaviour to supervisors, that is.

PN329

MR DRANE: Yes.

PN330

THE COMMISSIONER: About his retention of records contrary to company policy, etcetera.

PN331

MR DRANE: And it certainly is our submission that Mr Gong contested the allegations as they were put to him and as they have been stated in the letters. So all the way through he has contested what has been put to him.

PN332

THE COMMISSIONER: Yes. Well, the difficulty that you have is that if it is a question of challenging the substantial fairness of what has transpired and there is another view as to that substantial fairness, what if anything, can the Commission do about that? Because it appears now on the face of what you have said and what you have conceded, that substantial procedural fairness has been extended to Mr Gong, then the allegation of a breach of the disciplinary procedure can't be sustained.

PN333

MR DRANE: Well, it is whether it has been fairly applied.

PN334

THE COMMISSIONER: You may have a view about that. It would seem to me on the face of it that it has been fairly applied because as the agreement requires, those steps have been followed. And I thought you just said you conceded that substantial procedural fairness had been granted. You have difficulties with the substantive fairness of the allegations.

PN335

MR DRANE: That is correct.

PN336

THE COMMISSIONER: The question is, what can or do you want the Commission to do about that substantive fairness regime?

PN337

MR DRANE: We submit that it is within the powers of the Commission, as outlined in the agreement, to hear that matter and to make a ruling on it.

PN338

THE COMMISSIONER: In other words, a private arbitration of the merits of it?

PN339

MR DRANE: Correct. Thank you, Commissioner.

PN340

THE COMMISSIONER: What do you have to say about that, Mr Woods?

PN341

MR WOODS: Commissioner, we say that the powers of the Commission in this particular section of the Act are limited and in relation to my friend's dispute notification, where it is a matter of dispute relating to the unfair application of the disciplinary procedure, my friend - - -

PN342

THE COMMISSIONER: No, he has conceded that. He has conceded that the procedural fairness has been substantially followed and he would have difficulty establishing that point. So let us separate that.

PN343

MR WOODS: Yes.

PN344

THE COMMISSIONER: That you are looking pretty good on the issue of procedural fairness and the manner in which Mr Gong's alleged indiscretions have been dealt with.

PN345

MR WOODS: Yes.

PN346

THE COMMISSIONER: What I have before me now is effectively a request to privately arbitrate the substantive fairness of the allegations made and Mr Gong's responses and the company's failure to have regard to, or have sufficient regard to, his responses in the manner in which it has subsequently then warned him. That is what I'm effectively being asked to privately arbitrate.

PN347

MR WOODS: Yes.

PN348

THE COMMISSIONER: You made a comment a moment ago that the Commission's powers are limited. I would be interested in your views on what those limited powers are. I may have a different view.

PN349

MR WOODS: Clause 2.8 of the agreement, which I know my friend handed up a copy of that particular clause at the commencement of the proceedings this morning - - -

PN350

THE COMMISSIONER: This is 2.8 of the agreement?

PN351

MR WOODS: Of the certified agreement.

PN352

THE COMMISSIONER: And 2.8 in fact is the - - -

PN353

MR WOODS: 2.8.5.

PN354

THE COMMISSIONER: - - - dispute settling procedure or the grievance procedure.

PN355

MR WOODS: The grievance procedure, yes.

PN356

THE COMMISSIONER: Yes.

PN357

MR WOODS: And it clearly does provide that in the event that a matter remains unresolved after various other steps in the grievance procedure, that either party may take the issue to the Australian Industrial Relations Commission for conciliation and, if necessary, arbitration. Obviously this is without notice this morning that this dispute now seems to be about something other than the application of a disputes procedure and I would need to firstly consider that but also to take some further instructions in relation to that before I could give you a considered response about what the company's position might be in that regard.

PN358

THE COMMISSIONER: I see, okay. Right. Well, at this point in time I think we might go off the record.

OFF THE RECORD [11.11am]

NO FURTHER PROCEEDINGS RECORDED [11.33am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #D1 MR GONG'S PERFORMANCE REVIEW ATTACHED TO A COVERING LETTER DATED 08/04/2004 PN67
EXHIBIT #D2 MR GONG'S FIRST WRITTEN WARNING DATED 15/04/2004 FROM MR JEFFERY ZIMBLER, QA MANAGER PN82
EXHIBIT #D3 FINAL WRITTEN WARNING DATED 16/04/2004 PN126
EXHIBIT #D4 NOTIFICATION TO RAISE A GRIEVANCE PN144
EXHIBIT #D5 CORRESPONDENCE DATED 03/05/2004 PN158
EXHIBIT #D6 FINAL WRITTEN WARNING DATED 07/09/2004 PN165
EXHIBIT #D7 LETTER TO MR GONG ON LIPA PHARMACEUTICAL LETTERHEAD DATED 09/09/2004 PN235