C2005/3430, Transcript of Proceedings [2005] AIRCTrans 1388 (27 June 2005)

TRANSCRIPT OF PROCEEDINGS

---


Workplace Relations Act 1996 11900-1

VICE PRESIDENT LAWLER

C2005/3430

APPEAL BY WOOLWORTHS LIMITED (T/AS SAFEWAY)
s.45 Appeal to Full Bench
(C2005/3430)

SYDNEY

4.06PM, WEDNESDAY, 15 JUNE 2005

PN1

MR J BOURKE: I appear on behalf of Woolworths.

PN2

MR P HOLDING: I appear on behalf of Mr Brown.

PN3

THE VICE PRESIDENT: Thank you. I take it there is no objection to leave being granted in each case. There being no objection, leave is granted. Yes
Mr Bourke.

PN4

MR BOURKE: Your Honour, I seek firstly to tender - you should have the affidavit of Justin Zeeman, sworn today.

PN5

THE VICE PRESIDENT: I do. Any objection Mr Holding?

PN6

MR HOLDING: Yes, I do object to that your Honour. I do not see firstly that it goes to anything of relevance to the stay application. It is a document that attests to alleged facts on the basis of hearsay facts that have occurred since your Honour's decision was handed down and in respect of which the applicant has not had any reasonable opportunity to respond. I simply do not see how it can be of any assistance whatsoever to your Honour's determination of whether there is an arguable case, as to whether leave to appeal will be granted or whether the appeal will succeed or indeed, in relation to the application for a stay.

PN7

THE VICE PRESIDENT: Mr Holding, please feel free to remain seated. You too, Mr Bourke and in fact that way I will not be looking at your bodies minus heads. Mr Holding, why is it not relevant to the balance of convenience? Why aren't paragraphs 5 and 6 relevant to the balance of convenience?

PN8

MR HOLDING: Well, because there is no - I mean, this was part of the issue that Safeway ran in the case. They said that if we allow an exception to the policy then in the case of Mr Brown, then the whole of the policy will collapse. That was not supported by any evidence whatsoever. There is no issue that Safeway is entitled to set appropriate dress standards for its employees. It says that Safeway staff will know that he is working in non-compliance with the Safeway dress policy. Well, the simple answer to that from the point of view of Safeway is he is doing that because he was given permission to do so. It cannot lead to any right in other employees to wear eyebrow rings or wear eyebrow rings under band-aids if Mr Brown resumes work. Apart from which it also hearsay, certainly paragraph 6 of the affidavit is hearsay. I understand this is an interlocutory proceeding, but nevertheless - - -

PN9

THE VICE PRESIDENT: And also that the rules of evidence do not apply in the Commission.

PN10

MR HOLDING: Yes. They are normally applied in unfair dismissal cases, but if other employees have claimed the right to continue to be employed in breach of the relevant dress policy then they should be just told that they are not allowed to. Now, what does it mean in factual circumstances similar to Brown. What does that mean? How does that help your Honour? Does it mean that the employee is just wearing an eyebrow ring? Does it mean he is wearing an eyebrow ring under a band-aid? Does it mean he was given permission to do it? It cannot be of any assistance to your Honour.

PN11

THE VICE PRESIDENT: Thank you. Mr Bourke, do you have any submissions in reply generally to what Mr Holding has said and secondly is Mr Zeeman available for cross-examination?

PN12

MR BOURKE: Mr Zeeman is available for cross-examination, your Honour. We say the submissions you have just heard from my learned friend Mr Holding are matters for weight which can be thrashed out in the course of this afternoon in terms of submissions and his submissions really just went to weight. The point on hearsay is just not open. It is an interlocutory application. It is traditional to accept evidence on information and belief and in relation to him having to
answer - - -

PN13

THE VICE PRESIDENT: Yes, it is traditional to accept evidence on information and belief and that is precisely what this is not. I do not see anywhere in this affidavit where Mr Zeeman says "I am informed by x and verily believe that" rather there are some assertions of fact.

PN14

MR BOURKE: Sir, if I take your Honour to - - -

PN15

THE VICE PRESIDENT: However, the rules of the evidence do not apply and it seems to me that Mr Holding has a point in terms of the late service of this affidavit and therefore not having had an opportunity to deal with it. But if Mr Zeeman is available for cross-examination then that may remedy that particular difficulty. Mr Holding, would you wish an opportunity to cross-examine Mr Zeeman if this affidavit is admitted?

PN16

MR HOLDING: Would it be possible for me to reserve my position on that and see where we get by way of submission first?

PN17

THE VICE PRESIDENT: Yes. Well Mr Holding, at the moment I am disposed to admit it. It seems to me that portions of the affidavit are in fact relevant to the question of the balance of convenience and given that the rules of evidence do not apply I am disposed to think that the fair approach is to admit it provided you have an opportunity to cross-examine in the event that you have instructions that are sufficient to enable you to challenge. What is an affidavit - - -

PN18

MR HOLDING: How could I have those, your Honour? I mean, this was ..... same as you organise us to go out in the field.

PN19

THE VICE PRESIDENT: No Mr Holding, the reason why I amended the way I expressed that is because your general retainer presumably is sufficiently broad to enable you to challenge this. You have not regarded the submissions that you just put.

PN20

MR HOLDING: All right, thank you, your Honour.

PN21

MR BOURKE: If your Honour pleases.

PN22

MR HOLDING: I will reserve my position in relation to that, if your Honour pleases.

PN23

THE VICE PRESIDENT: I am disposed to, in all the circumstances, to admit the affidavit of Mr Zeeman. I think it is relevant to the question of balance of convenience. The question of weight is a matter for submission. Issues of weight are affected by the absence of the usual attribution of the source of information and it is a matter for Mr Holding as to whether he wishes to cross-examine or not.

EXHIBIT #1 AFFIDAVIT OF MR ZEEMAN

PN24

THE VICE PRESIDENT: Yes Mr Holding, do you wish to cross-examine Mr Zeeman?

PN25

MR HOLDING: That was what I was going to reserve my position on until - - -

PN26

THE VICE PRESIDENT: Well, you have reserved your position. The affidavit has now been admitted. If you wish to cross-examine, now is your opportunity.

PN27

MR HOLDING: Yes, I will cross-examine Mr Zeeman, if your Honour pleases.

<JUSTIN RICHARD CHARLES ZEEMAN, SWORN [4.15PM]
<EXAMINATION-IN-CHIEF BY MR BOURKE

PN28

MR BOURKE: If I could just confirm one thing, your Honour. Do you have in front of you your affidavit sworn today?---Yes I do.

PN29

Could I take you to paragraph 2 of that affidavit?---Yes.

PN30

Does that indicate that the information contained in that affidavit is based on information provided to you by Justine Robbins of Safeway?---Yes.

PN31

A Human Resources Manager. And on the basis of that information, have you set out the contents of paragraphs 3 and following the motions of that affidavit?---Yes I have.

PN32

And do you believe the information that was provided to you by Ms Robbins to be correct?---Yes I do.

PN33

I have no further questions, your Honour.

<CROSS-EXAMINATION BY MR HOLDING [4.17PM]

PN34

MR HOLDING: Mr Zeeman, do you recognise the person that is sitting just behind my learned friend there, in the first row?---Yes I do.

PN35

Is that Justine Robbins?---Yes.

PN36

Is she not capable of speaking for herself in these proceedings. You have to speak on her behalf do you?---No.

PN37

Yours is not the best evidence at all in relation to these matters, is it?---That's - - -

PN38

Yours is second hand, isn't it?---It is.

PN39

She could give first hand evidence in relation to these matters, couldn't she?---(No audible response).

PN40

Now, you were the advocate for Safeway in the proceedings were you not?---Yes.

PN41

And do you recall that Ms George - you know Ms George, she is the National HR Manager for Safeway?---Yes I do.

**** JUSTIN RICHARD CHARLES ZEEMAN XXN MR HOLDING
PN42

You recall her giving evidence to the effect that if Mr Brown was reinstated into employment that this was going to lead to all sorts of problems for Safeway?
---Sorry, would you - - -

PN43

Do you remember her giving evidence to the effect that if Mr Brown was reinstated this would lead to all sorts of problems for Safeway in terms of applying their dress policy?---I - I would need to look at the transcript before I answered that.

PN44

You cannot remember that, is that what you are saying?---No, without looking at the transcript, no I can't.

PN45

Don't you remember her saying in her statement that - - -

PN46

MR BOURKE: I object. We have got the transcript. We have got all the evidence in the appeal book. I understand the basis of Mr Holding cross-examining Mr Zeeman, it was because of issues related to the affidavit, not testing his memory as to the evidence which is in fact in the appeal book.

PN47

MR HOLDING: I do not plan to spend a lot of time testing his memory, but I think I will be able to jog his memory fairly quickly, your Honour, which will probably take me less time than looking it up in the appeal book.

PN48

THE VICE PRESIDENT: Mr Holding, I am prepared to accept your assurance that that evidence was given. The question is the relevance of it and the weight to be attached to it and I doubt very much whether Mr Zeeman can give evidence which bears upon those particular issues. But that is a matter for you and I am happy to hear your submission in relation to that in due course.

PN49

MR HOLDING: All right. Your understanding of her Honour's decision. You have read her Honour's decision?---Yes I have.

PN50

You understand that her Honour's decision was based on her Honour's finding that Mr Brown was given permission to do what he did. You may not agree with that, but you understand that is the basis of the - - -

PN51

MR BOURKE: Well I object. That is a matter for argument in submission, not a matter for cross-examination of this witness.

**** JUSTIN RICHARD CHARLES ZEEMAN XXN MR HOLDING
PN52

MR HOLDING: Everything that is in the affidavit is a matter for argument in submission, your Honour. That is what I said, it does not assist you.

PN53

THE VICE PRESIDENT: Well, I agree that there are parts of the affidavit that do not assist me, but there are parts of it which it seems to me do go to the balance of convenience and you - - -

PN54

MR HOLDING: I do not have an issue with paragraph 7, your Honour.

PN55

THE VICE PRESIDENT: And your questions are not directed to the parts that do go to the balance of convenience. The parts that go to the balance of convenience are paragraphs 5 and 6.

PN56

MR HOLDING: I am cross-examining him now about paragraph 5, your Honour.

PN57

THE VICE PRESIDENT: Yes, I will allow the question.

PN58

MR HOLDING: You understood that her Honour's decision was based, if you like, on a one off. That Mr Brown had been given permission to do what he did. Is that your understanding of her Honour's decision?---Well - - -

PN59

THE VICE PRESIDENT: Actually I reject the question. Mr Zeeman's understanding of her Honour's decision is irrelevant. The decision speaks for itself and what her Honour may have intended is equally irrelevant. It is what was written on the pages that matters.

PN60

MR HOLDING: All right.

PN61

THE VICE PRESIDENT: Please proceed, Mr Holding.

PN62

MR HOLDING: My question is, that her Honour has found - I will read from her Honour's decision briefly:

PN63

I am not satisfied it constituted a valid reason because Mr Brown was told by Safeway before he commenced employment that Rosebud West in December 2002 that he could wear a blue band-aid over his eyebrow ring.

PN64

You hear what I say? I am reading from her Honour's decision?---Yes.

**** JUSTIN RICHARD CHARLES ZEEMAN XXN MR HOLDING
PN65

You have no knowledge, I suggest to you, about anybody who is claiming they are allowed to wear an eyebrow ring under a blue band-aid because they were told that they could do so?---That's correct.

PN66

That is correct. No further questions, your Honour.

PN67

THE VICE PRESIDENT: Any re-examination, Mr Bourke?

PN68

MR BOURKE: Yes, sir.

<RE-EXAMINATION BY MR BOURKE [4.22PM]

PN69

MR BOURKE: Is there an administrative convenience in you swearing an affidavit on information and belief as against bringing ..... to swear an affidavit first hand?---In these circumstances, yes.

PN70

Is that why you adopted that course?---Yes it is.

PN71

I have no further questions, your Honour.

PN72

THE VICE PRESIDENT: Thank you, Mr Zeeman, you are excused.

<THE WITNESS WITHDREW [4.23PM]

PN73

MR BOURKE: Your Honour, I will just say that Justine Robbins is here if my learned friend wishes to cross-examine her, I am happy to call her just so there is no issue about failure to call Ms Robbins.

PN74

MR HOLDING: No your Honour, I do not.

PN75

THE VICE PRESIDENT: Yes, that is noted then on the transcript. Yes, Mr Bourke, your submissions.

PN76

MR BOURKE: Thank you, your Honour. Has your Honour had an opportunity to look at the chronology of events Safeway prepared?

PN77

THE VICE PRESIDENT: Yes, I have had a brief look at the chronology.

PN78

MR BOURKE: Yes, thank you.

PN79

THE VICE PRESIDENT: And I have had a look at the notice of appeal and seen the amendments and the amended notice of appeal. I take it you seek leave to file the amended notice of appeal.

PN80

MR BOURKE: Correct, your Honour.

PN81

THE VICE PRESIDENT: Is there any objection to that course, Mr Holding?

PN82

MR HOLDING: Yes, your Honour. In my experience the question of amendments to a notice of appeal are questions that should be determined by the Full Bench that is hearing the appeal. That is my experience.

PN83

THE VICE PRESIDENT: In the circumstances of Mr Holding objecting to the filing of the amended notice of appeal on that basis I will not rule on that now, but rather reserve that to the Full Bench. Yes, Mr Bourke, you had asked whether or not I had seen the chronology of events - yes, I have seen that chronology of events.

PN84

MR HOLDING: Your Honour, can I move to the outline of argument. Does your Honour have that document?

PN85

THE VICE PRESIDENT: Yes.

PN86

MR HOLDING: I have set out there - it does not seem to be an issue - the tests in relation to stay applications. Can I move to what we say are why the prospects of success are strong. You start in relation to the valid reason for termination, we say fundamental proposition - an employer is entitled to develop dress standards and dress policies for its employees. Safeway particularly so, given that hygiene is an important issue as well as appearance of staff. We then move to the fact
that - - -

PN87

THE VICE PRESIDENT: Mr Holding, just before you do, you say it has generally been accepted that an employer has the fundamental right to develop and determine dress standards or dress policies that are required to be met by its employees. You cite no authority, you say that is an obvious proposition do you, or do you have some authority for that?

PN88

MR HOLDING: I do not have an authority for that. Your Honour, we have moved quickly, but it did not seem to be a challenge below to that proposition.

PN89

THE VICE PRESIDENT: That is fine. Yes, proceed.

PN90

MR HOLDING: And then move through that the fact that they developed a policy in relation to including prohibiting an eyebrow ring being worn and that, in effect, what occurred here was despite persistent directions to comply with that policy that was not followed. And before I get to the statement made by Nilsen, on the face of that, it is our submission there would have been clearly a valid reason for termination for persistent refusal to comply with a direction as to dress, persistent refusal to comply with the dress policy. Add to that the items in paragraph 6, that numerous opportunities were given, you had numerous meetings, written warnings, we did not move directly to termination, but suspension first.

PN91

You had Mr Brown's own union escalating the matter to Commissioner Grainger and he issuing a series of recommendations which in effect included not only paying Mr Brown during the relevant period in dispute when he was suspended, but if at the end of the day we decided to insist that Mr Brown remove the eyebrow ring, that he then should do that before he returns to work - so clear recommendation not complied with. And when you analyse her Honour's decision, we say on the basis of that we had a strong position regarding valid reason and that is all upset essentially because at paragraph 9 we make the point - her Honour found back in December 2002, nearly two years before, in a conversation between the store manager, a local store manager and Mr Brown, he was given the okay to wear the eyebrow ring with a band-aid over the eyebrow.

PN92

Now, we say accepting that that finding was made and properly made, that does not lock an employer in for ever, not to give a change, give a subsequent direction, saying now you must comply with policy. The idea that a store manager, by saying something at one point in time, admitting something, locks in the entire organisation in relation to that employee if senior management decide that instruction or permission was not appropriate and Mr Brown should conform with policy as every other employee conforms with policy. And my learned friend has suggested that approach of the fact that we were locked in can be justified by way of some type of contractual characterisation. No contractual characterisation was found by her Honour and it would be totally improbable that you would find the necessary intention to create legal relations.

PN93

And the fact of the matter is - and it also suggested some type of a ..... but the idea of when an employer says something in relation to an appearance - not the employer here, but a store manager - that they are locked in for all time in relation to that instruction. And do not have an opportunity, the same way as when in relation to a policy is a statement of how you will work, there is an understanding that policies may change and conditions of work will change. And what is striking about this decision is the way her Honour has used the statement found to be made by Nilsen to effectively quarantine all the other matters we say were in Safeway's favour in pointing to a valid reason for termination.

PN94

If your Honour goes to paragraph 12, her Honour states that she was not satisfied Mr Brown's conduct constituted a valid reason for termination because Mr Brown was told and then she sets out the statement about the blue band-aid by the store manager. At the end of the day that is ultimately the overall approach she has taken, it is too narrow, it is too mechanical. She then, your Honour, at paragraph 19 refers to the fact that Safeway maintains that Mr Brown was breaching the Safeway policy, but then she says because when he commenced employment at the Rosebud store - that is, he changed stores - he was in effect told he could breach the policy. She characterises the alleged statement made by Nilsen as not only, you can breach the policy, but also as a consequence Safeway can never ask him to subsequently follow the policy.

PN95

Now, we would say that is an extraordinary circumstance of event, that a statement made by someone's manager in a local store locks an employer in so they can not seek compliance with their policy at a subsequent time. The matter cannot be revisited. There is a sort of one-side street to this approach. And further, at 20, your Honour, her Honour addresses the issues of why Safeway wanted to policy, but then goes on however, in the circumstances where Safeway told Mr Brown and then goes on about the statement that those matters are effectively put to one side. We say that what has not occurred - what is a very unusual approach - the concept of a fair go all round has been left out of the equation when looking at valid reason.

PN96

The general approach of the Commission, of looking at the entire factual matrix has been left out of the equation in relation to valid reason. Her Honour has focused on the statement of Nilsen two years before and has not given any weight at all and in fact she has expressly said they were irrelevant to the fact he is persistently breaching the policy after subsequently being told to comply with the policy, persistently ignoring warnings and ignored the approach set out by Commissioner Grainger in the recommendation. We say we are strong grounds on that and it also raises very important issues for leave to appeal that the principal that a comment made or indulgence or permission given by someone's manager locks in the organisation across the board in relation to an issue.

PN97

Even if that comment was in fact clearly unauthorised in that it was contrary to policy at the time. We have provided at paragraph 15 each of the items which we said should have been taken into account whether as to valid reason or as to the general discretion and her Honour has given them no weight. It is an unusual decision, your Honour. Normally you might see in an unfair dismissal decision a member of the Commission saying I take this, this, this into account, but in my overall weighing up the balance I found it was harsh or not harsh. Her Honour has expressly, on all our primary points, said they are not relevant. She has not said I have given them appropriate weight, she has said they are not relevant.

PN98

You will not find, your Honour, one issue where she has given weight in favour of Safeway either on liability or on remedy in what, in our respectful submission, on the face of the facts at least needs to be considered where Safeway were in with a chance. But you had at paragraph 15 she expressly finds that the recommendation of Commissioner Grainger, which both parties went to, no indication we were not going to abide by. We did abide by it, submissions were made, we made a decision and then totally ignored by Mr Brown, given no weight. The fact that over a period of - - -

PN99

THE VICE PRESIDENT: But she articulates why she does not give weight to it. Namely that Commissioner Grainger did not have before him the evidence that she had before her.

PN100

MR BOURKE: That is correct your Honour. And we say that her Honour makes that point in paragraph 28 and we say that discloses the inappropriateness of treating the alleged statement of Nilsen as quarantining anything else that has occurred. The fact is the recommendation was made, both parties had a chance to be heard, Brown - - -

PN101

THE VICE PRESIDENT: I must say, Mr Bourke, I read that as references to the evidence that her Honour referred to about the - if I might put it this way - the comparison between the eyebrow ring and plain ear studs which are permitted by the policy. And the fact that the eyebrow ring was perhaps even less likely to become dislodged because of the difficulty of removing it, the need for special tools, and inferentially that her Honour took the view that if Commissioner Grainger had had that sort of evidence before him, quite apart from the evidence of hair nets, he may not have made the recommendation. It was for that reason that she regarded as having no relevance.

PN102

MR BOURKE: With respect, we would say both parties had the opportunity to put their case before Commissioner Grainger irrespective of the fact that it could be said she had more extensive evidence on both sides. It should have - - -

PN103

THE VICE PRESIDENT: Was it transcribed?

PN104

MR HOLDING: No.

PN105

MR BOURKE: It was not transcribed.

PN106

THE VICE PRESIDENT: Was there any evidence before her Honour as to what was put before Commissioner Grainger?

PN107

MR BOURKE: No.

PN108

THE VICE PRESIDENT: So in fact her Honour was probably guessing as to what was or was not before Commissioner Grainger.

PN109

MR BOURKE: In our submission, if Mr Brown wanted to make that point he had to go behind the process and say look what was absent. But in fact no one objected to the recommendation and then you have a situation where that is blatantly ignored by Mr Brown. And it might have been appropriate, your Honour, for her Honour to say I take into account when giving it weight the fact that I am in a better position than Commissioner Grainger. But to just quarantine it and say no weight, we say that is just inappropriate. It clearly was a matter taken into account. We followed the recommendation. We had a Commissioner of the Commission saying after this process is followed on 7 February you come back to work without the eyebrow ring.

PN110

And what does Mr Brown do, he attends work with the eyebrow ring. And what do we do, we terminate, as was clearly the scheme of the recommendation that would occur. Now, the other matter is when one goes to paragraph 30, you look at all these additional matters, the repeated advice, the repeated breaches, the repeated warnings, the repeated warnings about his risk to his employment over a process that went on for weeks. And we do not get that factor taken into account one iota in terms of weighing up that is exercise of discretion on whether it was harsh, unjust and unreasonable.

PN111

Her Honour not only finds those matters totally irrelevant, on valid reason she gives them - expressly says they are not relevant matters, in the overall exercise of discretion. And that, with respect, is an extraordinary outcome. A whole series of meetings, warnings, written warnings, including the recommendation are excluded, are found to be irrelevant in relation to those over ..... because of the one off conversation, the conversation with Nilsen back in December 2002, that we cannot reactivate a process. That leads to an overall approach that her Honour approached the case from the perspective that once that statement was made our hands were tied. And all the procedural hoop we went to, which eventually led to the Commission, was absolutely irrelevant. Not matters to be taken into account and weighed up against the statement of Nilsen, but irrelevant. And we say that cannot be, in an industrial sense, a fair go all round, that an employer is locked in because of a store manager's comments which are found to have occurred two years before over a person's dress.

PN112

THE VICE PRESIDENT: Yes, Mr Bourke, thank you. Anything further you wanted to say?

PN113

MR BOURKE: Well, can I just also move to the issue of reinstatement remedy which we are challenging. That is paragraph 27 of the outline. You will not find, your Honour, any matter taken into account our way on the exercise of discretion. At 55, 56 you will see, although our concerns as to why we got the policy, they are put to one side, the statement made by Nilsen is mentioned again and in our submission it is objectively apparent that if we are required to reinstate and employ someone defiantly refusing to comply with our dress policy it does not help our cause to turn to other employees and say you have to comply. And it does not help our cause - my learned friend suggested we could explain to them that it is because a store manager two year's ago said it was okay. It will just be looked at as he is allowed to do one thing, I have to do another. That is a problem in the workforce. But that factor is not even weighed up in a balancing act of an exercise of discretion, it is found to be irrelevant. Our - - -

PN114

THE VICE PRESIDENT: In this context, Mr Bourke, what am I to make of the fact that apparently for a period of about two years your client was so concerned for the enforcement of its policy that Mr Brown was able to wear his eyebrow ring without anybody saying anything about it.

PN115

MR BOURKE: Your Honour, that is a factor that can be taken into account and could be taken into account in a fresh exercise of discretion. But we say that is a factor that can be taken into account weighing in favour of Mr Brown's case, but the factors I have raised, the recommendation, the then elaborate steps taken to remedy the situation after a number of years of nothing being done, also had to be weighed up. And what her Honour did is just looked at one side of the case and effectively said our points really do not count because of the Nilsen statement. And also went on to say our points, as to the way we will look to our workforce in terms of credibility and so forth, they do not count because of the Nilsen statement again.

PN116

THE VICE PRESIDENT: Yes.

PN117

MR BOURKE: So you will not find one matter taken into account our way and weighed up. Your Honour, can I then move to the balance of convenience. I will just make one - - -

PN118

THE VICE PRESIDENT: I do not need to hear from you on the balance of convenience, Mr Bourke.

PN119

MR BOURKE: Yes. Can I just make one other point on remedy. Her Honour, although she expressly says I have taken into account the fair go all round, on liability does not make the same statement as to her approach, which is a very narrow based approach, on remedy. And the requirements of the Act are that the fair go all round applies across the board, not only to liability, but also to remedy. And it is submitted it can be inferred from the matters in which her Honour drafted the judgment where she felt bound to clearly state on liability that she took the fair go all round into account, but did not in relation to remedy. And she has not adopted that approach on remedy, if your Honour pleases.

PN120

THE VICE PRESIDENT: Yes. I will hear from you on balance of convenience if it is necessary after I have heard from Mr Holding.

PN121

MR BOURKE: Yes, thank you.

PN122

THE VICE PRESIDENT: Yes, Mr Holding.

PN123

MR HOLDING: Well, perhaps it is best for me to start by addressing some of the issues that Mr Bourke raised and then to go to submission that we have put together. It is fairly lengthy so I will try and be brief in relation to it and perhaps invite your Honour to ask me whether you had any questions about it. My learned friend refers to Mr Nilsen as the local store manager as if, your Honour, there was some other type.

PN124

THE VICE PRESIDENT: Mr Holding, can I just stop you there. Rather than put the onus onto me to raise questions, you make the submissions that you wish to make.

PN125

MR HOLDING: All right, your Honour. He refers to Mr Nilsen as the local store manager. My question, your Honour - is there any other type of store manager other than a local store manager? He is - - -

PN126

THE VICE PRESIDENT: The point that Mr Bourke is making, that the local store manager who is God as it were to the employees in the store, is nevertheless a relatively junior management employee in the scheme of the company as a whole, that is, Woolworths Limited as a whole. And his - - -

PN127

MR HOLDING: There is no evidence to support that.

PN128

THE VICE PRESIDENT: Mr Holding, one can take judicial notice of that fact that the Board of Directors and the Chairman and CEO and CFO of Woolworths Limited and regional managers and the like exist and are further up the management structure than the manager of a store. And the point that Mr Bourke makes - - -

PN129

MR HOLDING: All right, your Honour. But isn't the important point, your Honour, this. What were the powers of the store manager? The relevant power of the store manager in this instance is the power to hire and fire and to negotiate the terms upon which a person will be employed. If they want to rely on what regional managers and more senior managers say and do then they should put those people in charge of hiring and firing.

PN130

THE VICE PRESIDENT: Mr Holding, was there a written contract. I have not looked at the appeal books at all.

PN131

MR HOLDING: No, there is no written contract, your Honour.

PN132

THE VICE PRESIDENT: I do not read her Honour's decision as having made a finding that the Nilsen conversation, if I can put it that way, gave rise to a term of Mr Brown's contracted employment. Am I wrong in that regard?

PN133

MR HOLDING: No, you are not wrong in that regard. And I have to be honest and admit that I find that a regretful aspect of her Honour's decision. Because we were certainly urging that it was an express term of the contract and we set out some fairly detailed submissions in relation to that. But her Honour does give some explanation in transcript from which your Honour could infer the reason as to why she has not found it to be an express term of the contract or made any finding in that regard and that is the quotation, your Honour, at the bottom of page 3 of our submission. She says:

PN134

Of course the temptation is to bind it all up in contract law, but the section of the Act actually talks about a fair go all round.

PN135

Now, our submission at the hearing was that it was an express term of the contract, but we also said it really does not matter even if it is just a representation. As her Honour says, again in the transcript, and this is the quotation at the bottom of page 2, where Mr Zeeman - - -

PN136

THE VICE PRESIDENT: Mr Holding, do I correctly infer that her Honour delivered an ex tempore decision and the reasons of 6 June are - - -

PN137

MR HOLDING: No.

PN138

THE VICE PRESIDENT: These are exchanges in final submissions are they?

PN139

MR HOLDING: Yes.

PN140

THE VICE PRESIDENT: Thank you.

PN141

MR HOLDING: Yes, in submissions. There, at the bottom of page 2, Mr Zeeman says:

PN142

If you accept Mr Brown's evidence that there was a discussion between Mr Brown and Mr Nilsen about whether he can wear an eyebrow ring, it was clarification. But if there is a dispute in respect to clarification it is to be clarified with a manager.

PN143

Because there had been evidence that if an employee had a clarification about the meaning of a dress policy that the store manager was the appropriate person to clarify that. That was the evidence of Ms George, the National HR manager. So there is another relevant power that the store manager has. And her Honour's response is, well what is he to do. He is told he can do it, he does it and he takes the employment on that basis. Now that is a pretty clear indication of how her Honour is thinking. She has not wrapped it up, if you like, in the legal jargon of whether it was a contract, an express term or just a representation. She
believed - - -

PN144

THE VICE PRESIDENT: Mr Holding, was there any evidence that Mr Brown - if Mr Nilsen had not made the statement that he did on her Honour's findings, that Mr Brown would not have taken the job.

PN145

MR HOLDING: Yes, there is. And I take you to the quotation which is the third quotation on page 2, in italics, where her Honour herself asked Mr Brown that very question:

PN146

If Safeway had a policy that none of its employees could wear the eyebrow rings would you go for a job there?

PN147

Brown:

PN148

I'm not, no.

PN149

So that was the evidence. Mr Brown was under the belief that the policy did not prohibit him from wearing the eyebrow ring as long as he wore it under the blue band-aid. That is what he had done at the previous store at Mornington and the policy was at best, unclear in that it said no visible piercings are allowed. So Mr Brown's view was as long as he covered it with the blue band-aid it was not a visible piercing. And then Mr Nilsen told him he could do it. And then there was unchallenged evidence, your Honour that in March or April of 2004 there was a meeting at which Mr Nilsen was present with an HR manager, Ms Montebello, at which the issue of the eyebrow ring came up. Now there was some dispute about what was said there, but it was not disputed that Ms Montebello - they were talking about whether he would be given a relief manager position - that Ms Montebello said well, if you were given this position, would be prepared to take the eyebrow ring out.

PN150

And he said, I would consider it. And that was where it was left. So it is not only the store manager now, her Honour has not made any findings about that. But again, her Honour does not seem to think that she needs to because she can rely on the fact of the Nilsen statement and the fact that he has continued to wear it for the next two years. Just coming back to my learned friend's submission, he said to your Honour, there is no intention to create legal relations. What is he talking about there. Of course there was an intention to create legal relations. The intention to create legal relations is, I am going to hire you. That is all - - -

PN151

THE VICE PRESIDENT: Mr Holding, you are setting up a straw man to knock down. What Mr Bourke's submission is, there was intention to create legal relations in his submission in relation to the statement made by Mr Nilsen.

PN152

MR HOLDING: It does not need to be your Honour. That is not how you determine whether or not .... a contract. There is a contract - that's all that's - the intention was to create a legal relationship of employment, that's all. We don't have to show an intention to create legal relations in relation to each and every term of a contract. At any rate, her Honour hasn't found that it was an expressed term of the contract, but she doesn't need to. The representation was made. The permission was given. That's enough.

PN153

My learned friend says, well policies may change, but your Honour why is it any different. Why is this any different, this statement in relation to the eyebrow ring. This was all put in submissions. If Mr Nilsen had of said well, "We're going to employ you and your wage is going to be $700 a week", and Mr Brown says, "Yes okay", and he starts working. Then it is found that in fact the correct wage was $600 a week, does that mean they can then drop his wage down because they have a policy that they only pay $600 a week.

PN154

If my learned friend had a beard, and he went for a job in a law office and they said - there was some discussion about the beard, all appears to be okay. He accepts the employment and then two years later he's told, "Look sorry but we've got this policy, you're not allowed to have a beard". It's just a double standard your Honour, they're just saying that because this blokes a butcher it doesn't matter what the store manager says to him. That's really their case.

PN155

THE VICE PRESIDENT: Mr Holding, to take your pay example a little further, if he had been told that the manager thought the pay was $800 a week, but in fact it was a $1,000 a week, wouldn't you be going to the equivalent in Melbourne of the Chief Industrial Magistrate and saying he was entitled to the full $1,000.

PN156

MR HOLDING: If it was in a certified agreement or if it was in an award we would, your Honour. But if it was simply a contractual relationship or a relationship, I do not know that there would be any basis to because you cannot contract under the award or the agreement.

PN157

THE VICE PRESIDENT: Yes.

PN158

MR HOLDING: He would certainly be entitled to ask for the extra money. There is no dispute, your Honour. They were entitled to ask him to remove the eyebrow ring, perfectly entitled. There is no suggestion that they were not entitled to ask him. Of course they were. He is entitled to say no, because you told me I could do it and I have been doing it for the last two years. He did not do it in the belief, by the way, that he was breaching their policy. He always maintained that he was not. So it is not like there was any deliberate flouting by him. He was being told by his union that he was not in breach of the policy. I do not think there is actually a very clear finding by her Honour that he was in breach of the policy, but maybe it is implicit in some of the things that her Honour says. In relation to the recommendation of Commissioner Grainger, perhaps I should just take you to that. It is at volume 4, tab 38. I beg your pardon, that is the certificate.

PN159

THE VICE PRESIDENT: Mr Bourke, can you help?

PN160

MR BOURKE: Sir, it is at tab 13.

PN161

THE VICE PRESIDENT: Yes, I have that.

PN162

MR HOLDING: There is the recommendation and the respondent relies on the recommendation there in paragraph 5. And I image, your Honour that Commissioner Grainger's objective in all of this was to try and resolve the dispute. And it certainly would have resolved the dispute had Mr Brown taken out the eyebrow ring, it is not an eyebrow stud. But there is also an important part of the recommendation at paragraph 2, over the page, your Honour, where Commissioner Grainger finds that the primary and paramount concern in this matter must be the public health and safety of Woolworths' customers. Both Woolworths and AMIEU should both be concerned for the clear and consistent application of the policy in regard to all Woolworths' employees.

PN163

Now, the union in good faith, your Honour, set out several pages of submissions going to the health and hygiene concerns in the matter and they are in the materials somewhere, but I do not intend to take your Honour to them. That was met, your Honour, those submissions were met, by a cursory letter from Woolworths saying we have looked at what you have written and we insist on applying our dress code. I am paraphrasing, but that was the gist of it. Now, they did not attempt to address any of the health and hygiene issues that had been raised by the union. What then occurred was that Mr Brown did go to work and was dismissed and her Honour's findings in relation to Commissioner Grainger's recommendations are the same, essentially, as what Commissioner Grainger himself has found about his recommendations in the document that I referred to earlier which is tab 38 in volume 4.

PN164

THE VICE PRESIDENT: Yes.

PN165

MR HOLDING: Which is the certificate where Commissioner Grainger says basically, well I did not have enough evidence to be able to determine this issue or to make a determination in relation to merit. Now if it had been a straight forward situation whereby Safeway were entitled to sack Mr Brown for not following the recommendation in paragraph 5, despite them not having responded to the health and hygiene issues, why would Commissioner Grainger have ever issued a certificate to that effect? Her Honour has given the same weight as he has given. My friend said that the requests to remove the eyebrow ring were just ignored by Mr Brown. They were not ignored by Mr Brown, he took them seriously, he got his union involved, he endeavoured to discuss the reasons why Woolworths wanted him to remove it and he got nothing.

PN166

What Woolworths put in the case before her Honour was that the reasons they wanted him to remove the eyebrow ring were because of dress standards and health and hygiene concerns. And they told him that much, but they never told him that the reason why he was breaching the policy was because the eyebrow ring was visible under band-aid. At the hearing they came up with this theory that the eyebrow ring was visible under the band-aid because you could see an outline or a trace of an outline under it. When I asked their food expert who wrote the policy whether he had ever heard of this theory he said he had never heard of it.

PN167

It was something that was invented, your Honour, for the purpose of the proceedings because it was certainly never put to Mr Brown during his employment that he was in breach of the policy because the eyebrow ring was visible because you could see a little bump under the band-aid. Neither was anything said to him, you are in breach of the policy because the band-aid might fall off, might fall off into food. This was all stuff that only came up in the hearing. I cannot say for certain what was said in conciliation, your Honour, because I was not there and it would not be appropriate for me to say anyway.

PN168

THE VICE PRESIDENT: Yes.

PN169

MR HOLDING: Your Honour, my learned friend also said that - and again, I paraphrase and in his reply he will correct me if I misquote him, but he says that her Honour has given no weight at all to Safeway's concerns about the maintenance of their policy or adherence to their policy or to the attainment of the objectives of their policy. If you look at paragraph 56 of her Honour's decision, firstly it is not true because she says at one point in the decision that she acknowledged that they have concerns about - paragraph 20:

PN170

I recognise the objectives of the Safeway dress policy are to ensure maximum hygiene in food handling and appropriate dress standards are maintained.

PN171

Safeway was concerned that Mr Brown's wearing of an eyebrow ring, covered by a blue band-aid while at work, undermined the attainment of these objectives. So she understands their concern, but in paragraph 56 she concludes - and this is an absolutely correct finding - - -

PN172

THE VICE PRESIDENT: Don't you need to start with paragraph 55 where her Honour does not say well, there is some weight to be attached to that, but I do not think in all the circumstances and applying a fair go all round, that it tips the balance in favour of the employer. She rather says I do not think Safeway's objectives weigh against and I do not think its objective of uniform adherence to the dress policy weighs against. In other words, is that not a statement of expression that there is to be no weight to be given to those things?

PN173

MR HOLDING: But in paragraph 56 she gives the reason why in my submission. She says there is no persuasive evidence that Mr Brown's wearing of the eyebrow ring, covered by a blue band-aid, while at work at the Rosebud West Safeway store, in circumstances where Safeway told him he could do so before he commenced the employment, has undermined Safeway's attainment of its objectives amongst its other employees or led its other employees to breach the Safeway dress policy. And her Honour is absolutely right. In fact, all of the evidence was to the contrary. Ms George acknowledged - - -

PN174

THE VICE PRESIDENT: Wasn't there evidence, Mr Holding that blue band-aids had fallen off into food? Yes or no, that admits of a yes or no question. Answer.

PN175

MR HOLDING: In food where, your Honour?

PN176

THE VICE PRESIDENT: Well, as I read her Honour's decision, your Honour says yes, there was evidence that blue band-aids have been found in food - - -

PN177

MR HOLDING: Yes, there are situations in Australia - - -

PN178

THE VICE PRESIDENT: But she says, there is no evidence that Mr Brown's band-aid ever fell into the food.

PN179

MR HOLDING: No, your Honour. There is evidence, your Honour, that band-aids have fallen into food in food processing places, in places where food is handled in Australia. There is evidence of that.

PN180

THE VICE PRESIDENT: Doesn't that rather suggest that whenever band-aids are worn there is a risk, albeit perhaps small, that the band-aids will fall into food in particular circumstances, not foreseeable in advance. And doesn't that risk apply to Mr Brown as much as it applies to any other employee who is wearing a blue band-aid.

PN181

MR HOLDING: No, not it does not, your Honour. Because the evidence in relation to blue band-aids - and this is covered in the submission - well, there are two aspects here. Firstly, the policy deals with band-aids and although she has found that there has been a breach of the dress policy she has not specified in what manner. The dress policy deals with band-aids and there was no breach of the dress policy in relation to band-aids.

PN182

THE VICE PRESIDENT: Isn't it just as plain as a pike staff that in the best of all possible worlds, Safeway would say so far as food processors are concerned, no jewellery full stop. No rings, no ear rings, no piercings, nothing.

PN183

MR HOLDING: They can do that, your Honour.

PN184

THE VICE PRESIDENT: That would be in the best of all possible worlds. But they recognise that balancing attainment of the absolute perfect safety standard against trying to accommodate the majority standards of the community, that it is perhaps best to balance that by saying plain wedding bands and simple plain studs in the ears are permissible, but everything else is out. And a decision such as this one does nothing more than apply pressure to Safeway and to others in Safeway's position, to even exclude those exceptions to its policy in the interest or pursuit of the best possible health outcome.

PN185

MR HOLDING: Well, they do not want to exclude jewellery, your Honour. Certainly, their food manager that he would prefer for them to exclude jewellery, but they have set the standard in relation to jewellery, they have put forward a policy and Mr Brown believed that he complied with the policy and he was certainly doing what he was told he could do. But the evidence in relation to band-aids is summarised in paragraph 28 of my submission.

PN186

THE VICE PRESIDENT: Anyway, having said that, I do not think what I have just said is in fact relevant to the determination of the stay application. That is more relevant on the appeal proper.

PN187

MR HOLDING: In paragraph 3(c), the notice of appeal states that in paragraph 22 of the decision that there was a risk of blue band-aids falling into food whilst being prepared. Her Honour made no such finding. Rather, she stated that there was evidence of blue band-aids falling into food. She did not make any finding that this had occurred during the course of food preparation at Safeway and there was no such evidence. The evidence on the issue of band-aids found in food was that contained in AF(6). This covered transactions over all of Woolworths' stores nationally over approximately a two year period. The evidence was that millions of transactions are conducted by Woolworths each year.

PN188

The band-aid incidents in AF(6) represent a minute proportion of the total transactions of the thirty-three or so band-aid incidents referred to in AF(6), two possibly occurred from within Woolworths. Now, in addition to that, your Honour, you have got the evidence from the doctors that say that these band-aids are special band-aids, they are given out by Safeway - understand that. They are special waterproof band-aids. They stick very well. There is a greater chance, the doctors say, but it is commonsense, of a band-aid falling off a hand or an arm than falling off an eyebrow, with somebody who is working in a cooled environment. But Mr Brown says look, you have got that concern, I do not think it is a real concern, but I am prepared to accommodate you, I will wear a hairnet over the band-aid - which every single expert called in the case, the doctors - the first doctor I did not ask about it - Dr Sutcliffe, their food expert from within Safeway, a food expert from outside of Safeway, a consultant, all said it was a reasonable practice.

PN189

THE VICE PRESIDENT: Mr Holding, do you have volume 4 of the appeal book there, tab 40?

PN190

MR HOLDING: Yes.

PN191

THE VICE PRESIDENT: Is the picture of the two women on the front of that brochure a picture of women wearing the hairnets that are referred to in her Honour's decision?

PN192

MR HOLDING: Yes.

PN193

THE VICE PRESIDENT: You will see that neither of those two hairnets covers the eyebrows of either of the two women that are on the picture.

PN194

MR HOLDING: That is true, your Honour.

PN195

THE VICE PRESIDENT: And it just strikes one as a matter of ordinary commonsense that hairnets not apt to cover the eyebrows and that it would be quite odd and uncomfortable to wear a hairnet covering eyebrows. Was there any evidence that it was practical to wear hairnets in such a way as to cover eyebrows?

PN196

MR HOLDING: Yes, your Honour, there was. Mr Brown put the hairnet over the edge of his eyebrow, which is where his eyebrow ring is. Do you want to see where it is, your Honour?

PN197

THE VICE PRESIDENT: No, if you tell me there was evidence that is fine.

PN198

MR HOLDING: It is right at the end and they were shown, your Honour. They were shown him with the band-aid and the hairnet over it and they all said it was a reasonable, safe practice, words to that effect.

PN199

THE VICE PRESIDENT: Good, yes I am satisfied with that.

PN200

MR HOLDING: Your Honour, I will take you to our submission. I have set out the relevant quotes that Mr Brown generally presented as a creditable witness. It is in paragraph 17 of the submission. That was clearly a finding that was open to her Honour on the basis of the evidence. We then say in paragraph 3 that there are two bases upon which the appellant argued that leave to appeal should be granted. One is that the reasoning process contravened the statutory requirements. They do not say how exactly, your Honour. I assume they mean the matters that are set out in paragraphs 1 to 14 of the notice of appeal, but they do not actually say in paragraph 15 exactly how the statutory requirements have been contravened. The second part of paragraph 15(b) is just, in my submission, a bit of exaggeration of what her Honour found.

PN201

They seek to characterise Mr Nilsen's statement - which throughout the case they said never occurred - as an indulgence. It is a word that was never used anywhere in the case, it means something allowed as a pleasure or privilege. There was no evidence that Mr Nilsen said this to Mr Brown on the basis that he was doing him some sort of favour, that he knew that he would be breaching the policy, but it is okay mate, you can do it because you are privileged, or anything like that. As I said earlier, there is no suggestion that Safeway were not entitled to request Mr Brown to remove the eyebrow ring.

PN202

THE VICE PRESIDENT: Mr Holding, this is not a high school debating competition or a university moot. You surely understand what the appellant is driving at in 15(b) and what it is driving at is, if Mr Brown's success in the application is allowed to stand it will undermine the integrity of the company's policy and its capacity to enforce the policy to the level of strictness that it requires and that there are issues of public importance that arises in the connection with the desirability of being able to enforce a policy in that fashion. The strict dictionary definition of the word indulgence is rather unimportant, isn't it? It is the substance of what those grounds of appeal are driving at that is important.

PN203

MR HOLDING: Well it is, your Honour. But nevertheless, your Honour, they are shifting from what they describe earlier as a statement and what they describe earlier as permission, to in this paragraph, describing something as an indulgence which is like a favour. It was not a favour, it was simply a - - -

PN204

THE VICE PRESIDENT: But if you go to 15(b), what it is specifically saying is that there is an important issue here as to whether or not a statement of the sort that Mr Nilsen made prior to employment can mean that the employer is bound for all time in relation to something that would otherwise not comply with its dress policy in circumstances where it complies with the dress policy is important for the reasons that I have outlined. Isn't that what is driving at? And isn't that clear what it is driving at?

PN205

MR HOLDING: I do not want to be pedantic or semantic, your Honour, but they are saying in this paragraph that this statement - that her Honour's decision means that this statement means that they cannot later request the employee to remove the eyebrow ring. Now, it just does not mean that, of course they can request that. I mean, I cannot change the words to suit their argument, your Honour. I do not want to be semantic. Let me accept what your Honour says.

PN206

THE VICE PRESIDENT: Well, put it this way. I certainly understand what it is they are driving at and perhaps Mr Bourke, you will need, in the interests of absolute precision, revisit the amended notice of appeal, given that Mr Holding has objected to it being filed. You can redraft it to address these semantic concerns that Mr Holding has.

PN207

MR HOLDING: Your Honour says they are semantic and I will take that on board, your Honour and I will address your Honour specifically on what your Honour believes and I will accept your Honour's - - -

PN208

THE VICE PRESIDENT: Mr Holding, let me just give you a little lesson as to why it is I take this particular approach. If you have the Workplace Relations Act there - what the obligation of the Commission is to do is in hearing and determining industrial dispute or in any other proceeding before the Commission - okay:

PN209

The Commission is not bound to act in a formal manner, is not bound by any rules of evidence, but may inform itself in any manner and in such manner as it considers just and the Commission shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

PN210

And therefore I take the approach that where a notice of appeal has used a particular form of words, where it is clear where it has been supplemented by the oral submissions of a party, what the party is driving at, I am concerned with the substance rather than the precise technical meaning of the words that have been used in a document like a pleading. And that applies as much to unions or applicants as it does to employers or respondents.

PN211

MR HOLDING: All right, thank you for that, your Honour. I have heard what your Honour says. Your Honour, it is not a unique or unusual thing that has occurred her. Let me take you to paragraph 11 of our submission. The case was determined by her Honour on a simple basis without regard to legal form or technicality I suggest, your Honour. A very simple basis. No legal form, no technicality, they told him he could do it, he did it, he did it for two years. Then they turned around and they said, we have changed our mind now and it is a valid reason for us to dismiss you. Now, I do not want to be too technical or legal your Honour, but I did look up valid reason meant - sound, defensible or well founded, not capricious. It is well known your Honour. It was open to her Honour to find that, based on what they had done.

PN212

It is commonplace your Honour, if you have a look at paragraph 11, if you would not mind, it is commonplace for employers to be held to statements, promises, representations, made to employees or prospective employees at job interviews. There is nothing unusual about it, nothing legalistic about it. It can be because it forms an express term of a contract. It can be because the employee relied on the representation, it can be because of promissory estoppel. We do not argue there is a promissory estoppel here, it just can be in those circumstances. It can be the federal court has held because a certain understanding is given to an employee. As simple as that. That is what we say has happened here and it was clearly open to her Honour to find that was what happened here. I just get the feeling that I am annoying your Honour and I do not want to continue to do so.

PN213

THE VICE PRESIDENT: Mr Holding, you are not. On the contrary, my approach is to test submissions that are put and I sought to test some points of Mr Bourke's submissions and I seek to test some of your submissions as well. It is rather a Socratic method.

PN214

MR HOLDING: Thank you, your Honour.

PN215

THE VICE PRESIDENT: Mr Holding, let me say I recognise the - if I might say this without being deprecating - the zeal and the earnestness with which you put your submissions, is the same zeal and earnestness with which I put submissions when I was a junior barrister.

PN216

MR HOLDING: Thank you, your Honour, we understand each other better. Paragraph 16, your Honour. This is the other aspect about their appeal which really means that it is likely to flounder and also means that it is really very unfair that they are seeking to now say that what was extended to Mr Brown at the interview was something less than permission to do what he did. That is what I take them by when they use the word indulgence, that it is something less than permission. That is contrary to their own evidence given at the hearing by Ms Robbins. Ms Robbins said at the hearing - this is the relevant regional manager for Victoria - she said - sorry, I am skipping around a bit, but if you look at the middle of page 3 - this is Safeway's evidence:

PN217

I took the opportunity to discuss with Mr Nilsen the situation concerning Mr Brown. I explained that by allowing Mr Brown to wear an eyebrow ring over a long period of time, he was permitting a breach of company policy by a staff member.

PN218

They acknowledged that they allowed him to do it. And that has formed the basis of her Honour's finding.

PN219

THE VICE PRESIDENT: Yes.

PN220

MR HOLDING: But coming back to the unfairness point about what they are trying to do now. There was never a single question or proposition put to Mr Brown under cross-examination that if Mr Nilsen said to him what her Honour found that he said, that Mr Brown must have understood that that could have meant something else other than that he would be able to wear the eyebrow ring under the blue band-aid on an ongoing basis. Never put to him, you must have understood that Safeway policy could override that. Or never put to him that
Mr Brown did not represent Safeway or that Mr Nilsen was doing him some kind of favour or that he was just clarifying the policy. None of that was put to him. And yet now they want to mount an appeal, they want to say there is an arguable case for us to appeal based on our interpretation of a conversation that when we ran the case we said never occurred. Because that was what the cross-examination was, but the conversation never occurred.

PN221

And yet there was no explanation as to how Mr Brown had got the job at Rosebud West. We invited them, during the running of the course, to call a meat manager if they wanted to because Mr Nilsen made some suggestion that it might have been the meat manager that gave him the job. We invited them during the course - if you want to ask us to consent to Mr Blain-Bartel, the meat manager, ask us. They never asked us. In paragraph 18 I set out a number of factors about - this is an employer, your Honour, that itself seeks to get employees to make statements or representations et cetera, et cetera, about what dress they will wear and then hold them to those representations or promises. They do that, your Honour. They do it in a document, paragraph (d) on page 9 refers to the document. They try to get employees to sign declarations that they will abide by their dress code. Now Mr Brown did not do that.

PN222

If he had, I submitted of course they would have tried to hold him to it. There was no submission to the contrary. When I asked Ms Montebello, you asked him when he went for the relief manager position, would he take out his eyebrow ring if he got the position and he said he would consider it. I said to her, if he had of agreed to take out the eyebrow ring you would have expected him to comply with that. Answer - yes. Why is it different for an employee, your Honour. How can they mount an arguable case that it is different for an employee? You are told you can do something, you do it. And that is the simple basis upon which her Honour determined this matter. And I set all that out in some detail there in paragraph (e) on page 10.

PN223

THE VICE PRESIDENT: Yes, I have read that.

PN224

MR HOLDING: In order to succeed in the appeal it is going to have to be accepted, by a Full Bench, that Safeway was entitled to rely upon representations, statements, agreements by employees, that they would comply with a dress code, but that an employee is not entitled to rely upon a representation by a store manager about what he can do. And the evidence of their national HR manager was that - and their documents say, if you have a doubt, who do you ask - not the HR manager, not the general manager, not the CEO - you ask your store manager, that is what their documents say. And then in 21, this has to be either an express term of the contract or a representation. I must be one of the two - the statement of Mr Nilsen. If it is an express term of the contract they acknowledged - they acknowledged in their submissions Mr Zeeman quite properly acknowledged that they had big problems. I think that was the exact words he used - I am not paraphrasing him there:

PN225

Woolworths has big problems.

PN226

But say it is something less than an express term of the contract. Say it is just a representation. For them to succeed in the appeal, in my submission, in terms of at least over turning her Honour's orders or - - -

PN227

THE VICE PRESIDENT: Mr Holding, assume that I accept that if it was an express term of the contract then it overrode the policy and it was not open to Safeway to subsequently impose the policy upon Mr Brown. But her Honour has not found that it was an express term of the contract.

PN228

MR HOLDING: That is true.

PN229

THE VICE PRESIDENT: And therefore that is not a basis upon which you can defend the decision. True it is on the appeal that you can argue that in the event that leave is granted and the matter proceeds by way of hearing, that on the evidence it ought to be considered as being an express term of the contract.

PN230

MR HOLDING: Perhaps if I could just ask your assistance there, do I have to put in a cross appeal in order to argue that?

PN231

THE VICE PRESIDENT: No, not in a practical sense. For the same reason that section 110 means that one is not standing on dictionary definition of words on a notice of appeal, equally you would not be barred from raising that issue in the absence of a cross appeal.

PN232

MR HOLDING: Because there would be an entire reconsideration of the matter.

PN233

THE VICE PRESIDENT: Yes.

PN234

MR HOLDING: I am grateful to your Honour for that, but - - -

PN235

THE VICE PRESIDENT: Strictly speaking, it would be a notice of contention rather than a cross appeal, but I do not think the rules provide for a notice of contention, so there we are.

PN236

MR HOLDING: But paragraph 21(c), your Honour - let us assume that it was not an express term of the contract and it was just a representation or a misrepresentation, aren't they, in order to succeed in their appeal, going to have to convince a Full Bench that a representation or a misrepresentation was incapable of negating the existence of a valid reason for the dismissal. Do you understand what I am saying. Aren't they going to have to say, this was just a representation, therefore it is not possible that that could give rise to her Honour not being satisfied that there was a valid reason for the termination.

PN237

THE VICE PRESIDENT: I understand your point, Mr Holding.

PN238

MR HOLDING: I do not think that that is arguable, your Honour. Of course it can, why can't it? It can still be sound, it can still be well founded and it can still be capricious. I then move to the question of excessive weight which pervades a lot of the notice of appeal, that excessive weight was given to this or that. And I quote his Honour, Justice Mason as he then was, who says - this is an extract from a Full Bench decision where his Honour Justice Mason says:

PN239

The preferred ground on which this is done is not failure to take into account relevant considerations or taking into account irrelevant considerations, but that the decision is manifestly unreasonable.

PN240

So that passage must mean that it was open to her Honour to give the weight that she did to the permission that was extended to the applicant by Mr Nilsen. It is not arguable that the weight that her Honour gave to that permission was manifestly unreasonable.

PN241

THE VICE PRESIDENT: Mr Holding, isn't the position though, that that is a statement of principle that applies to administrative decision makers exercising an administrative discretion within the executive arm of government, whereas the Commission is in a slightly different position. Although it is not a court because it cannot exercise chapter 3, judicial power, it is nevertheless a tribunal that is required to act judicially. And the relevant statement of principle is that found in House and The King.

PN242

MR HOLDING: That may be the case, your Honour, yes. The Full Bench in this instance was considering a matter under section 113 of the Act. And yes, I am reminded by your Honour that House and King does refer to questions of whether excessive or inadequate weight are given to certain matters, but there is obviously still an element of - - -

PN243

THE VICE PRESIDENT: Mr Holding, please do not infer from that that I am somehow or other ultimately hostile to your case - far from it. Let me confess that on my initial reading of the submission it did not immediately strike me that there was an error there. But let me say that it does seem to me on a provisional basis, subject to the extent to which you wish to seek to persuade me to the contrary, that there is at least an arguable case of error in terms of jumping over that particular hurdle, certainly at the level of remedy. At least at the level of remedy, her Honour was not prepared to countenance the impact of the policy as being a relevant consideration against reinstatement. I mean, I must say - and at the end of the day - there is no significant prejudice suffered by your client given the undertaking that has been proffered by the employer, that is, your client will continue to be paid his wage between now and whether the appeal is determined.

PN244

MR HOLDING: Let me respond to that firstly by very briefly - and I will come to balance of convenience because I think that is what your Honour is wanting to move to - but let me just very briefly say, your Honour, just repeat that in paragraph 56 her Honour has found that there was no persuasive evidence that the wearing of the eyebrow ring, covered by the blue band-aid, has undermined Safeway's attainment of its objectives amongst other employees or led its other employees to breach the Safeway dress policy. So she has considered it and it is a very simple proposition, your Honour, that if that is what she found was the case for Mr Brown - - -

PN245

THE VICE PRESIDENT: Mr Holding, the issue is a more fundamental issue and it is an issue to which significant importance attaches in a public interest sense. You see, the issue is to what extent it behoves the Commission to sit in judgment upon the appropriateness of policies instituted by employers - - -

PN246

MR HOLDING: They should not do it at all - - -

PN247

THE VICE PRESIDENT: Is the Commission required to pass judgments on whether policies are reasonable or not? It seems to me that it is at least arguable that that is not the role of the Commission, but rather the role of the Commission is only to, as it were, say that a breach of policy could not possibly found a basis for termination where the policy is so unreasonable that no reasonable employee could institute it. Because at the end of the day it becomes, from a public policy sense, an intractable problem for the Commission to be seeking to sit in judgment upon the policies of employers given the multifarious ways in which policies might arise and the legitimate interests of employers to make their own judgments about the factors that might inform the making of policies.

PN248

And if that be correct then it has quite profound implications for the weight that is to be given to policies, both in terms of the fair go all round principle at the level of determining whether or not the termination was harsh, unjust or unreasonable, but also critically at the remedy level. And whilst it may well be the case that her Honour reached the correct result here, it seems to me that it is at least arguable that her Honour did not properly treat the policy in this case.

PN249

MR HOLDING: I can only beg to differ that that is arguable, your Honour. I cannot see how it is arguable when she has quite clearly said that notwithstanding the objectives of the policy, it was Safeway who told Mr Brown that he could do what he did, in paragraph 56 and where she says there is no persuasive evidence that the policy was going to be undermined. She is not attempting to influence or interfere with Safeway's policy at all. All she is saying is, you have a policy, but you told this fellow that he could do what he did. And that is enough for me not to be satisfied that there was a valid reason to terminate his employment and for me to be satisfied that he can go back to the employment without undermining your policy. He has worked there, your Honour, for two years with the blue band-aid. Their national HR manager acknowledged that all she was talking about was the potential for policy to be undermined.

PN250

The evidence was that every single other employee who was asked to take out their jewellery complied. There has been evidence that anybody else is in the position of Mr Brown - that he was told he could do this. Therefore, a fence can be drawn around his situation and he can it is open to your Honour to find that he should be reinstated into employment. I cannot take that any further, your Honour, but in my respectful submission your Honour, there is no arguable case her Honour erred in relation to remedy. Would it assist your Honour for me to move onto balance of convenience.

PN251

THE VICE PRESIDENT: Yes.

PN252

MR HOLDING: I do not want to make light of the other submissions in relation to what the respondent says about section 170CG(3)(b) and (c). We acknowledge that they told us that he should take out the eyebrow ring on a number of occasions.

PN253

THE VICE PRESIDENT: Mr Holding, I am with you on that. For the purposes of today's argument, I am not troubled by that part of the case.

PN254

MR HOLDING: All right, your Honour, perhaps I will move onto balance of convenience. Your Honour, Mr Brown is not going to give the undertaking because the money that Safeway has promised to pay, subject to the appeal being heard, is of absolutely no assistance to Mr Brown because he is not going to spend it because of the risk that he might have to pay it back. It is just as simple as that. It does not help him at all.

PN255

THE VICE PRESIDENT: Mr Bourke, I did not read that undertaking as being subject to some obligation to pay it back if Mr Brown is unsuccessful in the appeal and Woolworths is successful. Can you confirm what the position is?

PN256

MR BOURKE: Your Honour that is the position. If your Honour requires, as the price of the stay, for that condition to be removed I would need to seek instruction.

PN257

THE VICE PRESIDENT: Sorry, I must have misread the conditions. I am looking at paragraph 17 of the amended notice of appeal.

PN258

MR BOURKE: Your Honour, I think it is because we have said as the preamble prior to setting out in quotes the undertaking we give, we have said subject to Brown undertaking to abide by any recommendation et cetera.

PN259

THE VICE PRESIDENT: I am sorry, Mr Bourke, I have to confess I just went straight to the undertaking itself and did not read the preamble.

PN260

MR BOURKE: Your Honour, can I just say if your Honour requires us not to seek that as the price for a stay I would need to seek instructions. Your Honour, it would be our submission that it really in a sense, if it is found that there is an arguable case, when you get to the balance of convenience, Mr Brown should, at the very least, be giving an undertaking he would repay the money.
Otherwise - - -

PN261

THE VICE PRESIDENT: Mr Bourke, let me just finish hearing Mr Holding because I was in error in thinking that there was no such condition, but there we are. Yes Mr Holding, you were saying?

PN262

MR HOLDING: Your Honour, it is not of any assistance to him if there is a risk that he has to pay it back and he could be caught in a situation where at the moment he is not eligible for social security because his girlfriend is earning income or his de facto is earning income. But if he did become eligible for social security of course he could not receive it if he was receiving money from Safeway, even though he might have to eventually repay it and then could not receive social security for that period, have nothing for it. Also, he was working 20 hours with Safeway and he is interested in augmenting those hours, but under her Honour's current order, if he obtains alternative employment now, say he gets another 20 hours, that is going to come off any compensation that might be payable by Safeway. Whereas if he is back working, he can seek to augment his hours and build his hours around whatever hours he is given by Safeway. He was doing a fair bit of work early in the morning. There is plenty of people that - - -

PN263

THE VICE PRESIDENT: I am sorry, Mr Holding, I do not understand that. Can you just make that submission again.

PN264

MR HOLDING: There are plenty of people now that rely on two jobs, your Honour, to get by. They might have two casual employments. If he was put back into work with Safeway he could seek to augment his hours without interfering with his work at Safeway. Say he works 4 hours on a Tuesday, Wednesday and Friday, he could seek part time employment or casual employment elsewhere at hours that he is not working at Safeway.

PN265

THE VICE PRESIDENT: There is nothing to prevent him between now and the hearing of the appeal seeking work elsewhere.

PN266

MR HOLDING: No, that is correct, but if he does he will not be compensated under the current terms of her Honour's orders in relation to compensation for being dismissed from the 20 hours of work at Safeway because it will be set off under the current order. Whereas if he goes back and he is working, he earns his wage at Safeway and he can then seek to augment his hours. And the Commission should be cognisant of the reality that - - -

PN267

THE VICE PRESIDENT: Yes - - -

PN268

MR HOLDING: You still do not understand me, your Honour?

PN269

THE VICE PRESIDENT: No, I do understand you.

PN270

MR HOLDING: The Commission should be cognisant of the reality that increasing levels of employment in our society are now part time or casual work. People often do need to have more than one job.

PN271

THE VICE PRESIDENT: I am acutely aware of that, Mr Holding.

PN272

MR HOLDING: So we say that that weighs heavily in favour of the balance of convenience being to allow him to resume work with the band-aid and the eyebrow ring under the hairnet. And he will give an undertaking, your Honour, that if the Full Bench was to uphold Safeway's appeal that he would immediately cease work and determine a course of action depending on what the union believes the merits of the decision of the Full Bench are, but he would not seek to say well, you cannot now sack me because I have gone back to work. He would give that undertaking.

PN273

THE VICE PRESIDENT: Yes.

PN274

MR HOLDING: And the other thing that must weigh in all of this, your Honour, is that for two years he has worked - I will come back to that - under these conditions. He worked for a period of some two or three months after first being told to take out the eyebrow ring. In fact, after he was first told to take it out nothing happened for another three weeks after that. In fact, his hours of work went up. I think that is all I have to say on the balance of convenience, your Honour. Thank you.

PN275

THE VICE PRESIDENT: Thank you Mr Holding. Mr Bourke, given the hour I do not need to hear from you in reply. This is an application for a stay or orders made by Senior Deputy President Acton on 6 June 2005. I am conscious that I must be satisfied that there is an arguable case that leave to appeal will be granted and that the appeal will succeed, and secondly that the balance of convenience favours the grounding of a stay. Some authorities talk about thirdly there being a purpose for granting the stay. It seems to me that that is an element that is bound up in the balance of convenience in any event.

PN276

Whilst this case is not a case without considerable difficulty and it is by no means clear that the appellant is bound to succeed, it seems to me that there is an arguable case that leave will be granted and that an arguable case that the appeal will succeed. The balance of convenience is finely balanced. However, it seems to me, on the material before me, that the balance of convenience is in favour of the granting of a stay, particularly given the undertaking that Safeway proffers in paragraph 7 of the affidavit of Mr Justin Richards Charles Zeeman of 15 June, 2005.

PN277

MR HOLDING: Can I just clarify that, your Honour. Unless Mr Brown gives an undertaking that he will repay the money, he does not receive any income for the foreseeable correct. Is that correct? Is that what your Honour's intention is?

PN278

THE VICE PRESIDENT: Yes, Mr Holding. On the basis of the undertaking that has been proffered by the company, it seems to me that it is appropriate to grant the stay and that the balance of convenience, although it is finely balanced, favours the grant of a stay. This is a two-way street Mr Holding. It is not a question of one being concerned only with the interests and justice from the perspective of the appellant. One has to be concerned with the interest of justice also from the perspective of the respondent. And if the respondent is ultimately vindicated in the appeal then the condition that is attached to the undertaking is appropriate.

PN279

The arguable case in relation to leave and the appeal may be put at a number of levels, but at the centre of it is the matter of considerable public importance which is the status of dress and conduct policies of employers and the interaction of those policies and representations or promises of the sort that were made by
Mr Nilsen in this case. Assuming the finding in relation to the making of that promise or representation is upheld and that in turn assumes that the appellant is granted leave to amend its notice of appeal to include a challenge to that particular finding.

PN280

Her Honour at paragraph 30 indicated that she attached no relevance to the repeated warnings that were given to Mr Brown from December 2004. If her Honour had found that the promise or representation made by Mr Nilsen had in fact formed a term of the contract of employment then what was said by her Honour in paragraph 30 would have been unremarkable. But in the absence of such a finding it seems to me that there is an arguable case that the position in paragraph 30 exhibits error. I certainly indicate that it is no higher than an arguable case. And given that I am not in a position to make findings and it is inappropriate to make findings on an application such as this in relation to whether or not what was said by Mr Nilsen in fact formed a term of the contract, it seems to me that there is an arguable case.

PN281

Whilst there are other bases which I think have been articulated in the submissions of Mr Bourke, it seems to me that that is sufficient for present purposes to explain the basis for my finding of there being an arguable case in relation to both leave and the appeal. So the order the Commission makes is that on the basis of an undertaking given by Woolworths Limited, through its counsel, being an undertaking in the terms set out in paragraph 7 of the affidavit of Justin Richard Charles Zeeman, sworn 15 June, 2005, the Commission stays the orders made by Senior Deputy President Acton on 6 June, 2005 in matter u2005/1897. Until the determination appeal number c20053430 or until further order of the Commission, whichever is earlier, Mr Bourke do you give that undertaking on behalf of Woolworths?

PN282

MR BOURKE: Can I just qualify that, your Honour. Mr Nilsen's affidavit just sets out the matters in quotes in paragraph 17 of the notice of appeal, but as a mutedly preamble. I am just wondering if the order should be amended to given the undertaking subject to the qualifications set out in paragraph 17 of the notice of appeal.

PN283

THE VICE PRESIDENT: Yes. For the reasons that I have indicated in terms of fairness to both sides and what would be fair to Woolworths in the event that it is vindicated in the appeal, the qualification that Mr Bourke seeks is appropriate. I withdraw what I have just said. The order of the Commission is as follows. On the basis of the undertaking given by Woolworths Limited through its counsel, being an undertaking in the terms and on the conditions set out in paragraph 17 of the notice of appeal, the Commission stays the orders made by Senior Deputy President Acton on 6 June, 2005 in matter u2005/1897 until the determination of appeal number c20053430 or further order of the Commission, whichever is earlier. Mr Bourke, do you give that undertaking on behalf of Woolworths Limited?

PN284

MR BOURKE: Yes your Honour.

PN285

THE VICE PRESIDENT: Mr Holding, are you in a position to give an undertaking in relation to the repayment of monies in the event that Woolworths is successful? If you are not, that does not matter, you can give that undertaking - - -

PN286

MR HOLDING: No, we go to the bank to get our loans, your Honour. No is the answer, your Honour. He will not give the undertaking, your Honour. No, your Honour.

PN287

THE VICE PRESIDENT: Well, Mr Holding, in the event that you, after taking instructions from Mr Brown and/or from the union have a change of heart, the order as cast is such that if the undertaking is proffered to Woolworths, through its solicitors no doubt, then the promise of Woolworths to pay wages would be activated. That is your understanding, Mr Bourke?

PN288

MR BOURKE: Your Honour, my understanding is that the undertaking would be proffered to your offices, an undertaking given to the Commission. We would have no objection to that being given in writing subsequently to your chambers. Rather than being personal undertaking between parties.

PN289

THE VICE PRESIDENT: No, the form of the notice is provided Woolworths receives an undertaking, well - - -

PN290

MR HOLDING: I do not want to interrupt, your Honour, but I have asked him three or four times. The answer is no, your Honour, he is just not interested. He does not want to take the risk that he might have to pay it back.

PN291

THE VICE PRESIDENT: That is a matter for Mr Brown. Suffice to say, if he has a change of heart and he wishes to provide a written undertaking - Mr Bourke, is there any difficulty with a written undertaking to your solicitors?

PN292

MR BOURKE: No, your Honour.

PN293

THE VICE PRESIDENT: If he wishes to provide a written undertaking to Mr Bourke's solicitors then the order will be operative and Woolworths will pay his wage in accordance with the undertaking. The Commission is adjourned.

<ADJOURNED INDEFINITELY [5.56PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 AFFIDAVIT OF MR ZEEMAN PN23
JUSTIN RICHARD CHARLES ZEEMAN, SWORN PN27
EXAMINATION-IN-CHIEF BY MR BOURKE PN27
CROSS-EXAMINATION BY MR HOLDING PN33
RE-EXAMINATION BY MR BOURKE PN68
THE WITNESS WITHDREW PN72