C2005/2694, Transcript of Proceedings [2005] AIRCTrans 1219 (27 May 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11611-1

VICE PRESIDENT ROSS

C2005/2694

APPEAL BY N PLOUMIS T/AS ENVOGUE HAIR DESIGN
s.45 Appeal to Full Bench
(C2005/2694)

MELBOURNE

1.19PM, WEDNESDAY, 18 MAY 2005

PN1

MR N PLOUMIS: Nick Ploumis from Envogue Hair Design.

PN2

MR G DIRCKS: If the Commission pleases I seek leave to appear on behalf of the respondent, Brearne Manchee.

PN3

THE VICE PRESIDENT: Is there any objection to the application for leave to appear?

PN4

MR PLOUMIS: No.

PN5

THE VICE PRESIDENT: All right. Leave is granted. Yes, Mr Ploumis?

PN6

MR PLOUMIS: Yes, your Honour. I'll start with a bit of a background history.

PN7

THE VICE PRESIDENT: It might assist you if I let you know that I have read the decision of Commissioner Mansfield.

PN8

MR PLOUMIS: Yes.

PN9

THE VICE PRESIDENT: I have a copy of his order. I have also read the earlier decision of Commissioner Foggo and the transcript of the stay proceedings before Senior Deputy President Watson on 15 March 2004. You're here asking for a stay of the order that the Commissioner issued on 20 September 2004 that you pay an amount of $3287.90, subject to tax deductions, is that right?

PN10

MR PLOUMIS: Correct.

PN11

THE VICE PRESIDENT: Do I take it from your involvement in the previous stay that you're familiar with what you need to do to persuade me to issue a stay?

PN12

MR PLOUMIS: Yes.

PN13

THE VICE PRESIDENT: There are two elements to it. I must just recap for your benefit. The first is you need to establish that there's an arguable case, that you'll be granted leave to appeal and that your appeal will be successful; and secondly, that the balance of convenience favours granting of a stay. As I understand it in relation to this matter, the appeal has been filed out of time and you argue on that, from the material on the file, that you never received a copy of the order. You only became aware that the order had been made against you when you were being pursued for the payment of the debt.

PN14

MR PLOUMIS: Correct.

PN15

THE VICE PRESIDENT: That was some time - - -

PN16

MR PLOUMIS: That was a couple of weeks ago.

PN17

THE VICE PRESIDENT: The third week in April, I think.

PN18

MR PLOUMIS: Correct, 25 or 26 April.

PN19

THE VICE PRESIDENT: All right. Well, against that background what would you like to say?

PN20

MR PLOUMIS: I would like to say Mrs Manchee was employed by me as an apprentice. I advertised for an apprentice, she responded, we interviewed her. She started with us as an apprentice, a third year apprentice. Upon her completion I got the apprenticeship completion incentive from the government. She got her certificate for an apprenticeship and for some strange reason Commissioner Foggo found she wasn't an apprentice. Also, with the conversation we had with Commissioner Mansfield and my solicitor, Mr Pannifex, he told us Commissioner Foggo was confused between traineeship and apprenticeship and that's why she made the wrong decision.

PN21

THE VICE PRESIDENT: Well, in relation to Commissioner Foggo's decision, you initially appealed against that decision, didn't you?

PN22

MR PLOUMIS: Correct, your Honour.

PN23

THE VICE PRESIDENT: But the appeal was withdrawn, is that right?

PN24

MR PLOUMIS: That's correct, your Honour, because we had a conciliation which I didn't want to attend. I was forced to - they told me you cannot go to appeal until you attend a conciliation. I was told by the - I was asked specifically three times by the conciliator, "Do you think you're smart? Do you think you're smart? Do you think you're smart?" and when I asked him what does he mean by that he told me, "Do you think we going to turn just around?" That's his words, your Honour.

PN25

THE VICE PRESIDENT: Well, at the time you were separately - you were legally represented?

PN26

MR PLOUMIS: No, I wasn't.

PN27

THE VICE PRESIDENT: What, in relation to the appeal?

PN28

MR PLOUMIS: I wasn't. That was afterwards, 10 September.

PN29

THE VICE PRESIDENT: The difficulty that I would have is that you had the opportunity to file an appeal against Commissioner Foggo's decision - - -

PN30

MR PLOUMIS: Yes, your Honour.

PN31

THE VICE PRESIDENT: - - - an opportunity which you originally took and then withdrew. The matter before me is not an appeal from Commissioner Foggo's decision.

PN32

MR PLOUMIS: I understand that.

PN33

THE VICE PRESIDENT: It's an appeal from Commissioner Mansfield's.

PN34

MR PLOUMIS: Yes.

PN35

THE VICE PRESIDENT: So the jurisdictional question that you're referring to - the apprenticeship issue has been determined against you.

PN36

MR PLOUMIS: Yes.

PN37

THE VICE PRESIDENT: No appeal has been filed in relation to that. So the matter that's before me is the appeal you filed in relation to Commissioner Mansfield's decision and there, it seems to me on reading his decision, he finds in your favour that there was a valid reason for termination due to the financial circumstances of your business but he concludes that the applicant wasn't given an opportunity - or wasn't told of that reason and wasn't given an opportunity to respond to it, et cetera, and on those reasons he concluded it was unfair and proceeded to award 7 weeks' compensation.

PN38

MR PLOUMIS: Yes, your Honour.

PN39

THE VICE PRESIDENT: Is that a fair summary of the position?

PN40

MR PLOUMIS: Yes, that's the sum of the decision. So I'll go to the actual decision.

PN41

THE VICE PRESIDENT: Sure.

PN42

MR PLOUMIS: Paragraph 8 - - -

PN43

THE VICE PRESIDENT: It's not necessary for you to do that for my benefit. Which part of the decision do you say is in error and why?

PN44

MR PLOUMIS: Actually, under the section 170CG(3) - - -

PN45

THE VICE PRESIDENT: Yes.

PN46

MR PLOUMIS: (3)(a):

PN47

Where there was a valid reason for termination relating to capacity or conduct.

PN48

I showed my tax returns to Commissioner Mansfield - - -

PN49

THE VICE PRESIDENT: But he accepted your argument on that.

PN50

MR PLOUMIS: Yes.

PN51

THE VICE PRESIDENT: Yes. So there's no error there.

PN52

MR PLOUMIS: What I want to say, your Honour, I have got some statements here which is my profit for the year was $14,000. That's not including my wages and my wife's wages. Also I have got a mortgage of $700,000. I have got all the paperwork here. The only thing that kept me afloat for the last 15 months is because I had an overdraft of $100,000. Basically the business was running at a loss. So if I had to pay $3449 per month to keep my business going, which I wasn't making that money. So I don't think Commissioner Mansfield took that into account.

PN53

THE VICE PRESIDENT: Well, did you put that material before Commissioner Mansfield?

PN54

MR PLOUMIS: I did - I told him whether - I asked him, I said, $14,000 is not enough for my mortgage, it's not enough to feed my kids - I got three kids to send to school and a wife to support and there's no way - no, no, 14,000 that's way below the property line.

PN55

THE VICE PRESIDENT: Yes.

PN56

MR PLOUMIS: There's no way known I could meet those payments.

PN57

THE VICE PRESIDENT: So you were arguing that an award of the type that he made would affect the viability of your business?

PN58

MR PLOUMIS: That's it. And 15 months - - -

PN59

THE VICE PRESIDENT: Were you legally represented before Commissioner Mansfield?

PN60

MR PLOUMIS: No.

PN61

THE VICE PRESIDENT: Okay.

PN62

MR PLOUMIS: Also going to - - -

PN63

THE VICE PRESIDENT: What about Mr Pannifex, didn't he represent you at that point?

PN64

MR PLOUMIS: That's with Mr Mansfield - with Commissioner Mansfield.

PN65

THE VICE PRESIDENT: That's what I asked you.

PN66

MR PLOUMIS: Sorry, I thought you said before that.

PN67

THE VICE PRESIDENT: No, no. But, you see, here's the difficulty. You were legally represented before the Commissioner below. Your advisor - or your counsel at that point put the arguments that he wanted to put. Your concern now is that you might have other material which supports that.

PN68

MR PLOUMIS: Yes, I have got - - -

PN69

THE VICE PRESIDENT: Is that right?

PN70

MR PLOUMIS: Yes. The thing is it's not like - as I said, it was obvious, I didn't have to go - I didn't go to those details because I thought $14,000, how can you support a family of five and pay your mortgage?

PN71

THE VICE PRESIDENT: Yes.

PN72

MR PLOUMIS: That's my argument. That's why I got it - - -

PN73

THE VICE PRESIDENT: Did you have - the material that you're referring to now, was that put before Commissioner Mansfield?

PN74

MR PLOUMIS: My tax returns were, the $14,000 tax return. I put it and I asked Commissioner Mansfield if that's - you know, I couldn't afford to do anything.

PN75

THE VICE PRESIDENT: Okay. On the face of it, he accepts the evidence that the salon was under financial pressure at paragraph 38.

PN76

MR PLOUMIS: Yes. Also he found I couldn't afford to keep until Christmas. So, according to what he said it wasn't a matter of if but when. So, what - like what does make it legal if I sacked her 6 weeks later or, you know, what's the difference in time? If it's wasn't viable, it wasn't viable. It wasn't going to make a difference for her 6 weeks later or then.

PN77

THE VICE PRESIDENT: All right. So is the essence of your case that he didn't have regard to the effect of the order he was going to make on the viability of your business?

PN78

MR PLOUMIS: Correct.

PN79

THE VICE PRESIDENT: Okay.

PN80

MR PLOUMIS: Also, going to section 170CG(3)(b):

PN81

Whether the employee was notified of that reason.

PN82

The employee in her own words and her own application states Envogue could not afford her. That's her own admission.

PN83

THE VICE PRESIDENT: Yes. But that's a different point. That's a point about - the argument there was that she would be entitled to higher wages at the time she became - moved out of her apprenticeship and she was alleging that she had been terminated because of her reliance on payments under the relevant award. It's not the same thing. The point the Commissioner is saying is that you didn't tell her of the reason or give her an opportunity to respond to the reason.

PN84

MR PLOUMIS: The opportunity to respond is further down, your Honour. But I did tell her. Her own admission is I could not afford her. I told her the wage would not go up, there's no way known I can employ her. She admits that there's no - there's no argument there from her. That's on her own original application. She said I could not - that's what I told her. I said, the financial situation is this but I cannot afford you. There's no way known I can pay your wages. Also to reinforce the point is until I quit my salon a month ago, nobody took her position and the only - July 2004 I got a first year apprentice which it was - it wasn't a fourth year, it was just fourth year - first year, sorry.

PN85

THE VICE PRESIDENT: So your business has ceased to operate now?

PN86

MR PLOUMIS: Correct.

PN87

THE VICE PRESIDENT: All right. That's probably all I need to hear from you at the moment, Mr Ploumis.

PN88

MR PLOUMIS: Can I say something else also, your Honour?

PN89

THE VICE PRESIDENT: Sure.

PN90

MR PLOUMIS: And also when you've got 170CG(3)(c):

PN91

Whether the employee was given the opportunity to respond.

PN92

She was given 1 and a half weeks notice, which is either the roping-in award, Federal award, apprentices that don't - you don't have to - I didn't have to do that anyway under the award. I have got a copy here from the award which states categorically:

PN93

Termination of employment.

PN94

It does not apply in the case of apprentices. That's 15.1.6(c).

PN95

THE VICE PRESIDENT: You have also got obligations under the Act to provide notice, not just the award, Mr Ploumis.

PN96

MR PLOUMIS: Your Honour, as I said, I was small - I had pressure from the Department of Employment and Education, Mrs Nicole Burne, I think was her name, and she came to my office - to my work. We discussed the award and she gave me that paper and said, this is your Bible. So that's what I have to go by. She told me, this new award you came under, this is how you have do work things, have to be done under this award. Also under section 170CG(3)(c), she was given the opportunity to respond but because - well, as you probably know, your Honour, with all the paperwork she was renting a rental property from me which is - she basically destroyed and she disappeared so I won't have to sort of serve her notice to go to Court.

PN97

THE VICE PRESIDENT: The issues are unrelated though. You have an action as a landlord against her as a tenant.

PN98

MR PLOUMIS: No, I just - - -

PN99

THE VICE PRESIDENT: You can't offset that against your obligations as an employer.

PN100

MR PLOUMIS: I understand that but I'm saying she was given the opportunity to respond but she chosen to disappear and I explain the reason why I was late.

PN101

THE VICE PRESIDENT: You understand the problem on appeal is that we have the evidence that was put in the proceedings before the Commissioner where you were legally represented and it's really whether the Commissioner's conclusions were reasonably open to him on the basis of that evidence. You suggest in some of the material that you have filed that the applicant has had employment terminated from other areas for reasons of dishonesty, et cetera.

PN102

MR PLOUMIS: Right.

PN103

THE VICE PRESIDENT: That's new material and we would only normally admit it if there was an error in the proceedings below, or there was some other reason why it should be admitted at this stage. There has got to be an end to proceedings. You have a fair opportunity to run your case at first instance. The appeal doesn't provide you with a further opportunity to do - to repeat what you said before or to argue some different point that wasn't taken before.

PN104

MR PLOUMIS: The problem - the point I'm arguing, your Honour, is from section 170CG I believe I comply with all those three points there.

PN105

THE VICE PRESIDENT: No, no, I appreciate that but you have to show that - well, the Commissioner has a different view to that and the question is, he accepted Mrs Manchee's evidence and not yours. In the normal course we wouldn't overturn - absent something on the face of the evidence that makes it glaringly improbable, we wouldn't normally overturn an assessment based on a Commission member's assessment of the witnesses. That's because the Commissioner saw the witnesses in the box and on appeal we don't.

PN106

MR PLOUMIS: Also, your Honour, I wasn't aware about proceedings so what I did, I provided stat decs from my staff which were present when she - when all those things took place and I wasn't aware that wasn't admissible. Mr Dircks complained about - said, "No, no, we can't" - - -

PN107

THE VICE PRESIDENT: Well, whether you're aware of it or not, you were represented by counsel at the time, weren't you?

PN108

MR PLOUMIS: He didn't say anything to me.

PN109

THE VICE PRESIDENT: Yes, well - - -

PN110

MR PLOUMIS: Because, as I said, now I'm more - I spoke to my ex-staff and they said they're more willing to come in person and - - -

PN111

THE VICE PRESIDENT: Yes, but the point is you had the opportunity to put that material below and you were legally represented below. To the extent that your counsel made a mistake, well, you may have an action against your counsel. I don't know. But it's whether there was an opportunity provided.

PN112

MR PLOUMIS: Also there's a few point which is - I go to paragraph 17.

PN113

THE VICE PRESIDENT: Yes.

PN114

MR PLOUMIS: Commissioner Mansfield couldn't understand why I went to this trouble. He asked why I was seeking advice when we had an argument. Where I already provided the stat dec explaining to him after I refused to qualify on the 23 September, she started acting strange. I didn't know what to do because it was the first person I've ever terminated - and I have been in the hairdressing industry for 20 years and she was the first person I ever terminated - and so that explanation there. Also - - -

PN115

THE VICE PRESIDENT: But the problem, Mr Ploumis, is that you might have an explanation for these things but was it put to the Commissioner at the time?

PN116

MR PLOUMIS: It was, your Honour.

PN117

THE VICE PRESIDENT: Okay. When we get to the appeal you're going to need to take us exactly to where that's said.

PN118

MR PLOUMIS: Yes.

PN119

THE VICE PRESIDENT: We'll be issuing directions for written submissions going to those issues. You'll need to identify where these problems occur, okay?

PN120

MR PLOUMIS: Right.

PN121

THE VICE PRESIDENT: All right.

PN122

MR PLOUMIS: Also I'm going to go to paragraph 18.

PN123

THE VICE PRESIDENT: Yes.

PN124

MR PLOUMIS: Commissioner Mansfield refers to Mrs Manchee as Ploumis at the end of the paragraph. That's not correct there.

PN125

THE VICE PRESIDENT: Well, it doesn't really matter because he concludes in your favour on that point.

PN126

MR PLOUMIS: Yes. Also if she was notified of the reason - paragraph 19, notified of the reason. As I said, she was notified. She admits she was notified.

PN127

THE VICE PRESIDENT: It's whether it was adequate and the Commissioner finds it wasn't.

PN128

MR PLOUMIS: Sorry, your Honour, but if you explain to some your financial situation is very bad that you cannot afford to keep them, how many more details can you give them? If she had asked me for bank statements, I'm more than willing to provide them. I have got them here now.

PN129

THE VICE PRESIDENT: Okay.

PN130

MR PLOUMIS: Also, paragraph 20, Commissioner Mansfield again refers to
Mrs Manchee as Ploumis at the top.

PN131

THE VICE PRESIDENT: Yes.

PN132

MR PLOUMIS: Paragraph 27, Manchee opened her own salon in February 2004. That's not correct. She bought her own salon middle of December and she started operating 1 January.

PN133

THE VICE PRESIDENT: Okay. Well, again, that doesn't really - he might have made a mistake as to the facts but it doesn't suggest that she didn't try to mitigate her loss.

PN134

MR PLOUMIS: But also that goes back to the fact like she had bought the salon, she was going to leave work anyway because she was going to buy her own salon and she bought her own salon so she was going to leave. She just want someone to pay - - -

PN135

THE VICE PRESIDENT: When was her employment terminated?

PN136

MR PLOUMIS: 7 November, that was the official date. She basically never showed up for the last week of her employment.

PN137

THE VICE PRESIDENT: All right. Well, your point about she bought the salon in December - yes, I see. All right. So she wouldn't have remained in employment for 7 weeks. That's what the Commissioner assessed.

PN138

MR PLOUMIS: No.

PN139

THE VICE PRESIDENT: Okay.

PN140

MR PLOUMIS: Also paragraph 32, Commissioner Mansfield refers to my case as similar to the Australian Postal Corporation.

PN141

THE VICE PRESIDENT: No, he doesn't. He's adopting the principles that are set down in those cases. He's not saying the facts are the same.

PN142

MR PLOUMIS: No, that's what I'm saying. But how can the principle be the same when I'm a sole proprietor, which is I'm going under, with a corporation?

PN143

THE VICE PRESIDENT: Well, because those two decisions refer to the statutory provisions and the approach the Commissioner takes to those. He's not saying that you'll be in the same position as Australia Post. Those cases just set out legal principles.

PN144

MR PLOUMIS: Yes, I understand.

PN145

THE VICE PRESIDENT: He's just applying those legal principles. The outcome might be different because you're a small sole trader but the legal principles would remain the same because they're set out in the Act.

PN146

MR PLOUMIS: But my argument again is my financial position because Australian Post never went under but - - -

PN147

THE VICE PRESIDENT: But that's a different thing. That's the application of the principles to your case and I understand what you say about that. But there's no error in what he said in paragraph 32. In fact, there would be an error if he didn't apply those principles.

PN148

MR PLOUMIS: I see.

PN149

THE VICE PRESIDENT: Your concern is with the way in which he applied them and that he didn't have sufficient regard to the financial circumstances of your business. Have I understood correctly?

PN150

MR PLOUMIS: That's what I'm trying to say, yes.

PN151

THE VICE PRESIDENT: Yes. So your concern is that where he says at paragraph 25 -

PN152

I do not believe the order is going to make or have a significant detrimental impact on the viability of the respondent -

PN153

You say he made an error about that and failed to have sufficient regard to the circumstances the business found itself in.

PN154

MR PLOUMIS: Correct, your Honour, because retrospectively the business went under and - - -

PN155

THE VICE PRESIDENT: Well - yes, okay. He couldn't have known that at the time but on the material before him he failed to give sufficient regard to that and he should have reached a conclusion that the viability of the business would be detrimentally affected by the order. Is that the point?

PN156

MR PLOUMIS: Correct. That's my point.

PN157

THE VICE PRESIDENT: Okay.

PN158

MR PLOUMIS: Also in his judgment at paragraph 38 he concludes - he found she wasn't going to be employed by - for a significant period so I can't understand why, you know, three or four weeks up and down it makes it harsh and unjust and four weeks later it doesn't. If a business is not viable, it's not viable. It doesn't matter if it's today or a week later.

PN159

THE VICE PRESIDENT: Yes. Okay.

PN160

MR PLOUMIS: Also he refers to Mr Dircks giving - taking the stand. I have got no idea why Mr Dircks has a personal interest in this but when my solicitor Mr Pannifex asked him specific questions, he could not remember.

PN161

THE VICE PRESIDENT: All right.

PN162

MR PLOUMIS: Also, all this - right through the proceedings I tried to explain and Mr Dircks just keeps referring to my business as a company, Ploumis Enterprises. Ploumis Enterprises is a figment of Mr Dircks's imagination. I had a company registered three years ago when things were going good for me. The company never traded and that can be checked with ATSIC. So there's - that proves Mrs Manchee was going through my mail and she found this and says, this is good, proceed to get some money out of it. But, as I said, this decision making against Ploumis Enterprises which is a company which never traded and never employed Mrs Manchee. That's all I have to say, your Honour. I believe I comply with 170CG on every single paragraph and I think I provided all the information I needed to do.

PN163

THE VICE PRESIDENT: Okay.

PN164

MR PLOUMIS: Thank you, your Honour.

PN165

THE VICE PRESIDENT: Thank you. Mr Dircks, can you just address for the moment the arguable case and I want you to go to two matters in particular? The first is the alleged error as to fact which is referred to in paragraph - or there's a reference to paragraph 27 of the decision subject to appeal, that is that the Commissioner found that the applicant opened her own salon in February 2004. Mr Ploumis contends the evidence shows that she opened it in December 2003. The second is what Mr Ploumis says regarding the financial viability of his enterprise and the Commissioner's conclusions at paragraph 25.

PN166

MR DIRCKS: Yes, your Honour. In relation to the alleged error of fact, that is the case that there was an assertion or evidence put by Mr Ploumis that the applicant started her salon at one stage - - -

PN167

THE VICE PRESIDENT: In December 2003?

PN168

MR DIRCKS: I don't see that that's clearly in any of his materials, but I'm not 100 per cent across them. In terms of the applicant's evidence it did appear that she gave evidence of her speaking to the previous owner in December and starting the business in - or taking over the salon on 1 January 2004. That's in the applicant's witness statement of - - -

PN169

THE VICE PRESIDENT: All right. Well, leave aside then whether Mr Ploumis's assertion is right about December, doesn't that show an error of fact?

PN170

MR DIRCKS: It does - I would have to say I'd have to check the transcript to see whether there was any further evidence given of when - that she actually started trading in the business. But we don't think that that would make any difference to the order in that the decision was effectively that the - at paragraph 38 that:

PN171

I find that Ms Manchee's employment would not have continued beyond the commencement of the Christmas holiday period, ie. a period of 7 weeks to 22 December 2003 from the date of her termination of employment on 3 November 2003.

PN172

THE VICE PRESIDENT: Well, doesn't that depend on when Mrs Manchee made the inquiries about opening the salon?

PN173

MR DIRCKS: Well, the respondent in this case had no reason to be making inquiries about the salon, but she gave evidence which was backed up by documentary evidence from the business owner of the salon that she took over that first contact was on 17 December 2003. The respondent gave evidence that she had been trying to find other employment after she had been dismissed and because of the unequivocally - - -

PN174

THE VICE PRESIDENT: Yes.

PN175

MR DIRCKS: - - - bad review she was getting from her previous employer, was looking for other ways of making a living - - -

PN176

THE VICE PRESIDENT: Right.

PN177

MR DIRCKS: - - - and that's where that came up and so to say that - whether it was the 1 January or 1 February it really doesn't affect the nature of the order and - - -

PN178

THE VICE PRESIDENT: No, well on the earliest version it was 17 December when the inquiry was made but there's no evidence to suggest that while she was still employed she had an intention to open a new salon, et cetera.

PN179

MR DICKS: There's no evidence of that and there was extensive questioning and cross-examination of the respondent on that and - - -

PN180

THE VICE PRESIDENT: All right. What do you say about the viability finding at paragraph 25 in view of what Mr Ploumis has said he put below?

PN181

MR DIRCKS: Well, I say that firstly the order was fairly moderate and from our perspective a very disappointing order in the circumstances, but the Commissioner did take into account the evidence that was given. Now, can we say with hindsight that it would have affected the viability of the business? Well, firstly, there are two things: one is that we do not accept that the business has gone under. The fact that Mr Ploumis is no longer operating this busy and popular hair salon in Centre Road doesn't mean that it went out of business because of financial reasons. There's absolutely no evidence on that, but - - -

PN182

THE VICE PRESIDENT: Yes. No, look, I accept that it's a judgment to be made at the time the case is run, but Mr Ploumis's point is that at the time the case was run the Commissioner had information about his tax returns which indicated prior to the payment of wages and salaries to he and his wife the - it was showing a net position of 14,000.

PN183

MR DIRCKS: Yes. Your Honour, with that, the effect on the viability - we're in an unusual position here in that we know that the order hasn't been complied with and Mr Ploumis is arguing that the - - -

PN184

THE VICE PRESIDENT: He, which is the company.

PN185

MR DIRCKS: - - - business was so unviable that he went out of business anyway, so would that order affect the viability? I'd say that it would do.

PN186

THE VICE PRESIDENT: Well, I suppose it does raise a practical problem and I leave aside the outcome of the stay proceedings. Your client is going to be expending money chasing a relatively small amount of money, $3287, in circumstances where the business concern has gone out of - is no longer operating and on what basis can you - you've sought it against an enterprise.

PN187

MR DIRCKS: Yes.

PN188

THE VICE PRESIDENT: Well, there's no order against Mr Ploumis. The order is that Envogue Hair Design pay the appropriate amount and my concern in a broader sense is that we - these proceedings will conclude that there will either be a stay or there won't be a stay.

PN189

MR DIRCKS: Yes.

PN190

THE VICE PRESIDENT: There'll be an appeal which will tie both of you up in circumstances where Mr Ploumis's position is that he can't afford to pay. Well, if that's right, Mr Ploumis, you have another option open to you and that's to seek a variation of the order seeking time to pay or having discussions with Mr Dircks about time to pay and that might be a more productive way to approach this than pursuing an appeal in the sense that if you pursue the appeal you may win or you may lose. If you lose, well, Mr Dircks has already foreshadowed you'll have a costs order against you in relation to it. At some point it might be worth thinking about cutting ones losses in relation to this matter and both of you having a discussion about the basis on which you can reasonably do that.

PN191

MR PLOUMIS: Your Honour, the issue is not only a financial issue, it's a moral issue as well for me. I already paid $6000 legal costs and that was because I did nothing wrong, I did everything that was required under the award, I complied with the award, I complied with section 170CG. I cannot understand why should I pay when I comply with everything.

PN192

THE VICE PRESIDENT: Well, as I - I'm just putting you on notice that as to where the matter may end up, that's all, Mr Ploumis, just drawing it to your attention, all right?

PN193

MR PLOUMIS: Yes.

PN194

THE VICE PRESIDENT: Mr Dircks, anything further on arguable case?

PN195

MR DIRCKS: Well, yes, your Honour. Obviously the principles are stated in the decision by the Commissioners currently constituted and also the Full Bench and the Kellow-Faulkner Motors case and we say that there has to be something on the basis of what is put in the grounds of the appeal that could lead to a successful outcome. We say that there is nothing in the 15 points in the appeal grounds that is relevant to the central thrust of the decision which is that there is a termination by the employer, there was a valid reason but that the statutory procedural fairness was not complied with, and we say that the only one of the grounds that comes anywhere near that is perhaps ground 12 where Mr Ploumis says that the employee was notified of the reason in her own words and goes on, but his - obviously it's clear that the opportunity to respond and notification that Mr Ploumis asserts he gave was after the applicant was notified that she was being terminated. So we say there is nothing in the grounds that could attack that fundamental finding of the Commission that the notification and opportunity to respond were not provided before the termination and therefore there is no basis for the appeal on the grounds that are put to succeed.

PN196

THE VICE PRESIDENT: Well, given that the appellant is unrepresented I have characterised his broad argument in respect of the appeal and why he says there is an arguable case. He said there was an error made in the CG(3)(b) and (c) findings and there was an error made in respect of the finding in relation to 170CH, in particular the conclusion at paragraph 25 of the decision subject to appeal. That's the essence of what's being argued and I apprehend that's the essence of what the case will be on appeal. You have dealt with the - there's also the factual error of the salon or the applicant's efforts to open another salon. What do you say in relation of the financial viability point?

PN197

MR DIRCKS: Well, we say that there would need to be something compelling before the Commission that would show that it should have been apparent to the Commissioner at the time of making the decision that the order of $3287 would send the business under and there was no evidence to that effect.

PN198

THE VICE PRESIDENT: Well, wasn't the evidence put of the tax returns which showed the position the business was in?

PN199

MR DIRCKS: Well, there was evidence of the tax returns, but it doesn't follow that because there was an apparent modest income for the appellant that necessarily follows that the order of 3000-odd dollars would send the business under.

PN200

THE VICE PRESIDENT: Was it argued by Mr Pannifex that an order of compensation would send the business under?

PN201

MR DIRCKS: I believe that it was - again I stand to be corrected. I haven't looked at the transcript of this case and it's a long time ago so it's not very fresh in my memory, but the arguments, all the relevant arguments were properly put and so that there is just nothing there to demonstrate there was a miscarriage of the discretion of the Commissioner in this case on the facts that were put to him.

PN202

THE VICE PRESIDENT: All right. In relation to the balance of convenience, the case will be heard on the 18 July. Thus far you have instituted proceedings to recover the debt, you have been told the business no longer operates, you will no doubt incur further expenses, or your client will, in pursuing the recovery of the debt where, from what Mr Ploumis has said, he doesn't intend paying it. Is all of that going to be resolved in a Court somewhere before the 18 July?

PN203

MR DIRCKS: Your Honour, I would say that the respondent isn't going through me to recover the debt and I just have no information to put on that. In response to the business, we're at pains, despite what Mr Ploumis said, to have the true nature of the respondent identified and that is there is N. Ploumis it's the sole trader trading as this business.

PN204

THE VICE PRESIDENT: Yes, but that's not who the order is against though.

PN205

MR DIRCKS: Well, it identifies that the heading in the - - -

PN206

THE VICE PRESIDENT: It's not the heading I'm worried about. It's the order.

PN207

MR DIRKS: Yes.

PN208

THE VICE PRESIDENT: Paragraph 1 talks about Envogue Hair Design. It doesn't mention Mr Ploumis.

PN209

MR DIRCKS: Well, if it is found to be deficient somewhere else then no doubt the respondent has the ability to come back and seek the order be amended to reflect who the respondent actually is, but that's not something that I care to say anything further about.

PN210

THE VICE PRESIDENT: All right.

PN211

MR DIRCKS: If the Commission pleases.

PN212

THE VICE PRESIDENT: Thank you. I don't think I need to trouble you again, Mr Ploumis. I am persuaded I should stay the order subject to appeal. I am satisfied on balance that there's an arguable case at least in respect of the Commissioner's finding that the order would not have a significant detrimental impact on the viability of the respondent. I want to make it clear to you,
Mr Ploumis, that I don't regard that as a strongly arguable case. I think it's arguable and not much more than that. I am also persuaded that the balance of convenience favours the granting of the stay having regard to the fact that the matter will be heard relatively shortly.

PN213

I would simply repeat the observation I made earlier that I think that both parties would be well served by having settlement discussions in relation to the matter rather than having further proceedings both here and also for the recovery of the debt as the amount of - the sum involved will quickly evaporate for the applicant in relation to what it will cost to pursue it and, Mr Ploumis, if you're unsuccessful in the appeal then you'll pretty soon find yourself up to your neck in other legal proceedings, both for the recovery of a debt and also for the foreshadowed costs application. So I'd urge both parties to give further consideration to their position before they go down the path of incurring any further costs.

PN214

If the Commission can assist by providing a conciliator to seek to bring the parties together, perhaps in relation to a schedule of payments or something of that order, or some - if it goes to your concern about the finding, Mr Ploumis, perhaps an agreed statement as to the circumstances that led to the termination of employment might assist but I'd encourage you to give serious consideration to that proposition and if the Commission can assist in any way to conciliate the matter, you should just let my associate know and a conciliation will be organised shortly. All right? Nothing further?

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