C2005/3979, Transcript of Proceedings [2005] AIRCTrans 1662 (5 August 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 12367-1

SENIOR DEPUTY PRESIDENT WATSON

C2005/3979

APPEAL BY KARNA, SINGARA
s.45 Appeal to Full Bench
(C2005/3979)

MELBOURNE

9.57AM, MONDAY, 25 JULY 2005

PN1

THE SENIOR DEPUTY PRESIDENT: You're representing yourself
Mr Karna?

PN2

MR S KARNA: Yes.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes.

PN4

MR K CAMERON: I am from AHEIA, representing the University of Tasmania.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Karna, you're seeking a stay of the order of Commissioner Smith in respect of costs? Is that the case?

PN6

MR KARNA: Yes, sir.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Well you'll have to satisfy me in order to obtain a stay order that there is an arguable case that you might succeed in the appeal, and secondly, that the balance of convenience would support the granting of a stay.

PN8

MR KARNA: I couldn't have the opportunity to participate in the proceedings because I was - - -

PN9

THE SENIOR DEPUTY PRESIDENT: I'm sorry

PN10

MR KARNA: I could not participate in the proceedings. I was on ….. as I mentioned in the submitted original application that I will be travelling to attend to my mother I took extended leave around ….. and a half months because she was sick. I could not take the opportunity to be present in the proceedings.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes. Did it occur to you to advise the Commission before your departure that you would not be available to appear in these matters?

PN12

MR KARNA: Under the terms of the submission of the application for relief, I mentioned there that I would be going for two months so got extra three and a half months.

PN13

THE SENIOR DEPUTY PRESIDENT: At the time of?

PN14

MR KARNA: Submitting the application for relief.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes. Very well, and I noted that correspondence was received by your room mates. Did you receive any advice as to the listing of this matter by Commissioner Smith?

PN16

MR KARNA: When I came back, only then I had the opportunity to go through the correspondence because they had received and kept it aside, all the correspondence and the career correspondence as well, and then they left it aside.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes. And you've read the material in relation to the issue relied on by the University of Tasmania, the probationary period or qualifying period of employment?

PN18

MR KARNA: Yes, sir.

PN19

THE SENIOR DEPUTY PRESIDENT: What do you say in relation to that argument?

PN20

MR KARNA: The performance appraisal by the head of the department was satisfactory, and the student's feedback was satisfactory. My peer lecturer gave a reference letter that my lecturing was appreciated by students, and he appreciated it and he gave a reference letter, who of course is no more with the university, he's with the federal government. He resigned and went a year ago. So performance wise, everything was satisfactory and ok sir, and there was no warning given that my performance was poor.

PN21

THE SENIOR DEPUTY PRESIDENT: Well, the argument put by the university was that your employment was subject to a probationary period or qualifying period of employment through to 30 April 2006. Commissioner Smith found that in the context of the award and evidence given by the university, there be a reasonable period in the context of the employment. Do you have any position in respect to that?

PN22

MR KARNA: Yes, sir. Number one, the termination order says that the provision is terminated because of poor performance, and there was a day that some misconduct which is alleged. So poor performance was never mentioned to me. I was never called to improve my performance.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes, but the university argument, the matter never got to that point. The university argued the application was beyond jurisdiction. There is no jurisdiction to hear the matter because your employment was subject to a probation period of employment agreed in advance through to - or advised in advance through to 30 April 2006. In those circumstances, there was no jurisdiction to bring a claim in respect of termination of employment within that period.

PN24

MR KARNA: Could I submit that they shouldn't have said that it is poor performance and misconduct, they say simply we are terminating your probation as for the award, that would have been a different indication. This is saying that poor performance and misconduct which they are alleging and that is not supportive as ….. except one which is a normal case. Most of the students they posted appreciation of their marks and the setting was good. And when I went to the other campus there, I was not responsible from Launceston to Hobart, even the students who are deemed ..... they are so appreciative, and with all the correspondence which they are supposed to read on the internet ..... my way of lecturing or lecturing style, everything.

PN25

THE SENIOR DEPUTY PRESIDENT: Very well. Do you have a copy of your application?

PN26

MR CAMERON: I have one.

PN27

THE SENIOR DEPUTY PRESIDENT: I wonder if you could make that available to me. I don't have the - sorry to cause you to undo your file.

PN28

MR CAMERON: It will be the very last thing.

PN29

THE SENIOR DEPUTY PRESIDENT: Thank you, I'll return that to you. Just bear with me one moment. So you requested the matter not be heard before the
15 May, Commissioner heard it on 20 May. Your travel was extended due to personal circumstances?

PN30

MR KARNA: Yes, sir.

PN31

THE SENIOR DEPUTY PRESIDENT: Very well. Is there anything further at this stage Mr Karna?

PN32

MR KARNA: The very argument that I didn't have sufficient experience and qualifications is also not - I do not agree with that, because compared with other faculty members, I had excess qualifications into disciplinary which I was using to teach in 2 or 3 disciplines within the school. But they allege that still my experience in the international business was not there. There are faculty members who are teaching with bachelors qualifications in the same capacity as me, as a lecturer, and there are also certain lecturers teaching the same subjects with different qualifications, not marketing. So I think I was chosen based on the qualifications, but now they say that the qualifications are not sufficient enough, which is unfair, it's not correct.

PN33

THE SENIOR DEPUTY PRESIDENT: Well, the matter before Commissioner Smith never got to that point for the merit, it got to only the jurisdictional issue, the qualifying period of employment.

PN34

MR KARNA: Hence, I seek this statement.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Anything further?

PN36

MR KARNA: No.

PN37

THE SENIOR DEPUTY PRESIDENT: No, thank you. Mr Cameron?

PN38

MR CAMERON: Yes, I'll be brief your honour. Certainly the university does not believe that Mr Karna has an arguable case in either matter. However, as I understand it, we can really only stay the second decision of Commissioner Smith. So, with respect to that particular matter, the university as indicated in our letter of Friday, we are prepared not to enforce that order until such time as a
Full Bench hears Mr Karna's applications, and makes a decision on those. Which I understand would have the same effect as granting of a stay order anyway, in the sense that the application won't be enforced. But certainly, as I said, we would say that in terms of the jurisdictional argument that Commissioner Smith was correct in his decision and his decision has been supported by a Full Bench of this Commission in previous matters. We would say that there is certainly no arguable case in relation to that matter. Apart from that, I don't really have anything further to add this morning your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, thank you for that Mr Cameron. Mr Karna, do you require a stay of the order for payment of costs in light of the undertaking by the university that it will not seek to enforce the order of Commissioner Smith?

PN40

MR KARNA: I want to stay on board the orders of - - -

PN41

THE SENIOR DEPUTY PRESIDENT: I'm sorry

PN42

MR KARNA: I'm submitting to have stay on board the orders, the costs and
the - - -

PN43

THE SENIOR DEPUTY PRESIDENT: There's nothing to stay in effect in respect to the preliminary decision, because that had the effect of dismissing the application. That matter will be considered on the appeal, so there is nothing to stay in respect to that. The only practical thing that arises from your point of view is the order for you to pay an amount of $667.45 to the University of Tasmania. The university has in writing and now on transcript, undertaken that it will not seek to enforce that order until the appeal is determined. Does that meet your position that the university is not going to seek to recover the money until the appeal is determined, and obviously then, only if the appeal fails. So is there any point in the stay order at this point of time in light of that undertaking, that the university is not going to be seeking to recover the money from you until the appeal is determined?

PN44

MR KARNA: Of course, that stay I request and the other thing is that they are terminating saying that it was poor performance and misconduct. If it is poor performance, then I wasn't showed an indication of that.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes, very well

PN46

MR KARNA: That’s my submission.

PN47

THE SENIOR DEPUTY PRESIDENT: Very well. Yes, well I have some real doubts as to whether you consider an arguable case has been made out for the granting of a stay in respect of the decision of the Commissioner in PR959613 and the order within that print requiring a payment of costs by Mr Karna to the University of Tasmania. Further, the university has given by way of correspondence on 22 July and confirmed today on transcript, an undertaking that it will not seek to enforce the order of Commissioner Smith until the Full Bench determines the appeal. The effect of that is that there will be no prejudice to
Mr Karna in the absence of a stay in that the university has undertaken not to seek to recover those monies in any case prior to the determination of the appeal. In those circumstances, I see no purpose in the granting of a stay.

PN48

The appeal will proceed and be heard and be determined and it is only after the hearing of the appeal and in the event that the appeal fails, that the university will seek to recover those monies. There will be no attempt for Mr Karna to recover the monies prior to the determination of the appeal. Accordingly, I will not grant the stay order, but note the undertaking by the university not to seek to enforce the order and not to recover any monies until after the appeal is heard. There is no issue of a stay in respect of the period. The decision in print PR958619 there is in effect nothing to stay in that respect. The appeal will proceed and be heard and determined and no action is contingent upon events prior to the determination of the appeal. There is nothing to stay in respect of that matter. Accordingly, this stay will not be granted, but the university has undertaken not to seek to recover the money in the meantime.

PN49

I would indicate to Mr Karna that you have made submissions today going to the merit of your application. The proceedings before Commissioner Smith and accordingly the appeal, did not go to that issue, it's only if the appeal Bench upholds the appeal in respect of jurisdiction, that the Commission would get to the point of merit, so those arguments will not arise for the purpose of the appeal. The appeal is dealing with a very narrow issue as can be ascertained by the decision in print P959613, that decision dealt only with the preliminary jurisdictional matter. That’s the matter that will be addressed on the appeal, and that’s the matter that you will need to satisfy the Full Bench that leave to appeal should be granted and that the appeal should be upheld, not the issue of merit. Simply the issue of the preliminary period of employment, probationary employment in effect and that can be ascertained by a reading of the transcript which you have been supplied with I understand.

PN50

And the decision of the Commissioner in respect of the jurisdictional matter was in PR958619. The other matter under appeal is PR959613, that’s a costs order and that again is limited to the costs order. It doesn't go to the merit if you like, of the termination, so in the appeal, you will need to address those issues, the costs order and the probationary matter in the earlier decision rather than the merit of the termination. I'll adjourn the proceedings at this stage. The matter will be listed before a Full Bench in due course, subject to the undertaking by the university that it's not going to seek to recover the $667.00 before the appeal is determined. I'll now adjourn.

<ADJOURNED INDEFINITELY [10.16AM]