C2005/3998, Transcript of Proceedings [2005] AIRCTrans 2039 (4 October 2005)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 12892-1

SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT LACY
COMMISSIONER BACON

C2005/3998

APPEAL BY CHAND, MUKESH
s.45 Appeal to Full Bench
(C2005/3998)

MELBOURNE

10.01AM, TUESDAY, 20 SEPTEMBER 2005

PN1

MR M CHAND: I am the appellant in this case and representing myself.

PN2

MR S McCARTHY: I seek leave to appear in this matter on behalf of the respondent, that company being Refined Sugar Services Pty Ltd.

PN3

SENIOR DEPUTY PRESIDENT WATSON: Thank you. Is there any objection to leave for Mr McCarthy, Mr Chand?

PN4

MR CHAND: Your Honour, I wasn't aware that I had the right to object.

PN5

SENIOR DEPUTY PRESIDENT WATSON: You do have that right.

PN6

MR CHAND: I wasn't aware. I did object in the arbitration and he was still allowed to represent.

PN7

SENIOR DEPUTY PRESIDENT WATSON: Do you object now?

PN8

MR CHAND: My only concern of this objection is if I am not successful, the costs and I am aware of the cost, just to keep the cost down. I don't want to be liable for his cost in this representation.

PN9

SENIOR DEPUTY PRESIDENT WATSON: Very well. We will grant leave, Mr McCarthy.

PN10

MR McCARTHY: Thank you to the Commission.

PN11

SENIOR DEPUTY PRESIDENT WATSON: Gentlemen, we've had the opportunity of reading the written submissions provided. We will mark your submissions, Mr Chand.

EXHIBIT #A1 SUBMISSIONS OF MR CHAND
EXHIBIT #R1 SUBMISSIONS OF RESPONDENT

PN12

SENIOR DEPUTY PRESIDENT WATSON: The matter has been listed today for brief oral submissions in support and your task, Mr Chand, is to establish that we should grant leave to appeal, uphold the appeal and that will be done by reference to any errors you say that have been made by Senior Deputy President Lloyd in his decision. The focus is really on establishing error and public interest in granting leave. Go ahead, Mr Chand.

PN13

MR CHAND: Your Honour, before I proceed with the case, can I just ask the Commission what are the procedures of conducting the case for the day and, secondly, how much time am I allowed to make the submissions?

PN14

SENIOR DEPUTY PRESIDENT WATSON: The procedure, Mr Chand, is we will hear from you in the first instance as to why you say the Full Bench should grant leave and uphold the appeal. We will then hear from Mr McCarthy and then from yourself in reply. In terms of time, as I've already indicated, we have had the benefit of the written submissions, we have read them, so it's really a matter of brief submissions to draw our attention to those matters which you think important and need to reiterated in your oral submissions.

PN15

MR CHAND: Your Honour, one more thing. According to this section 45 of the Act, the Commission has powers of requesting for more evidence and I have actually submitted two more documents with my application, that being document 24 and 25.

PN16

SENIOR DEPUTY PRESIDENT WATSON: That was attached to your written submissions?

PN17

MR CHAND: To the original R1 form.

PN18

THE SENIOR DEPUTY PRESIDENT: The original R1 form?

PN19

SENIOR DEPUTY PRESIDENT LACY: Are these documents that you sought to tender in evidence before Senior Deputy President Lloyd, were they?

PN20

MR CHAND: Sorry, can you repeat the question?

PN21

SENIOR DEPUTY PRESIDENT LACY: Did you seek to tender these documents to Senior Deputy President Lloyd?

PN22

MR CHAND: Yes.

PN23

SENIOR DEPUTY PRESIDENT LACY: And you were refused?

PN24

MR CHAND: I was refused.

PN25

SENIOR DEPUTY PRESIDENT LACY: And the basis as I understand it for his Honour's refusal was that you ought to have filed the documents beforehand, is that right?

PN26

MR CHAND: Yes, your Honour.

PN27

SENIOR DEPUTY PRESIDENT WATSON: I am just presently trying to identify the documents. You say they were filed with - just bear with us one moment.

PN28

SENIOR DEPUTY PRESIDENT LACY: Can you tell us what the nature of the documents are, Mr Chand?

PN29

MR CHAND: The nature of the documents, one was a medical report.

PN30

SENIOR DEPUTY PRESIDENT LACY: Just tell us what they are at the moment. What is the other one?

PN31

MR CHAND: The other one was the issue about the overtime issues.

PN32

SENIOR DEPUTY PRESIDENT LACY: The overtime issues?

PN33

MR CHAND: The overtime issues and it was a copy of my pay slip that verified what my hourly rate was and that would go a long way in solving the problem of overtime.

PN34

SENIOR DEPUTY PRESIDENT WATSON: They were filed with the appeal book, is that correct? They were filed at the time when the appeal was lodged?

PN35

MR CHAND: Yes, your Honour.

PN36

SENIOR DEPUTY PRESIDENT WATSON: What is the opposition,
Mr McCarthy, in relation to those documents on the appeal?

PN37

MR McCARTHY: Without wanting to complicate the paperwork of the Commission already, I can only observe that I have not actually sighted these documents, so when we were served with the appeal documentation, there were no attachments to it, but save to cause confusion and also save to ensure - save any suggestion that all the information that's pertinent to these proceedings are not before the Commission, I am prepared to take the risk and accept the fact that the applicant has two more documents that - sorry, the appellant has two more documents that he would wish to have submitted as part of his case. We are more than prepared, as I say, to take the risk and allow them to be submitted, so we're in the hands of the Commission on this matter.

PN38

SENIOR DEPUTY PRESIDENT WATSON: Mr Chand, we will admit the two documents on this basis, that they were documents you sought to tender before Senior Deputy President Lloyd and tender was refused and that is relevant to one of the grounds of appeal you bring. We will admit them at this point without making any determination obviously as to whether there was any error in refusing to determine them or without a ruling as to their relevance for the appeal proper.

PN39

MR CHAND: Your Honour, I am having difficulty.

PN40

SENIOR DEPUTY PRESIDENT WATSON: We will admit the documents at this stage without any finding by the bench at this point as to whether or not there was an error in not admitting them below or as to their relevance to the appeal as this point, but we'll admit them for the purpose of argument and we will mark what you have marked 24.

EXHIBIT #A2 MEDICAL DOCUMENTATION
EXHIBIT #A3 PAY SLIPS

PN41

SENIOR DEPUTY PRESIDENT WATSON: And perhaps if you can make a copy of those available to Mr McCarthy.

PN42

SENIOR DEPUTY PRESIDENT LACY: Do you have spare copies available?

PN43

MR CHAND: No, your Honour.

PN44

SENIOR DEPUTY PRESIDENT WATSON: Very well, you proceed,
Mr Chand.

PN45

MR CHAND: Your Honour, I am seeking leave to appeal against the decision of Senior Deputy President Lloyd made on 25 July 2005 in Melbourne. In the public interest, the leave to appeal should be granted because Senior Deputy President Lloyd erred in law, the facts of the case and not giving any weight to any evidence supported with documents.

PN46

The law precedent cases were not taken into account. The decision made by Senior Deputy President Lloyd was not a fair go all round and it is not sound, defensible and well founded in the public interest. There are three issues of this appeal. One was the termination of my employment due to genuine redundancy or the redundancy was used as a smokescreen because the respondent was having difficulty dealing with the issues that existed.

PN47

If the redundancy was still operational requirements of the respondent, then the correct procedures were not followed. It was determined at the conciliation conference that there was no procedural fairness in this case. From the law cases that I have relied upon, it is very clear that the procedures of the Act were not followed, procedures of the Act, section 170CG(3).

PN48

As I have put myself, I was not aware of the procedures during arbitration, certainly one day was not enough for this case considering the number of witnesses the respondent presented. I was constantly rushed through the hearings, plus the respondent was given more time to file their submissions. As a result, I did not have enough time to prepare for the case as well.

PN49

The grounds of appeal and errors of Senior Deputy President Lloyd. The grounds of appeal are as follows. As I represented myself, I did not present the case properly and I was not aware of the procedures of conducting the case and I was constantly rushed through my presentation. His Honour allowed the respondent to be represented against my objection.

PN50

His Honour erred in concluding that the termination was due to operational reasons. His Honour failed to comment on the new employment offer I signed on 27 January 2005. His Honour has accepted the oral evidence given by the respondent that lacked credibility and that was contradictory and did not give any weight to the evidence supported with documents.

PN51

His Honour erred in accepting that the manner in which I was dragged off the respondent's premises was justified. His Honour ignored the relevant law precedent cases. His Honour erred in the procedural fairness about the case. His Honour erred in concluding that my termination was of a valid reason. His Honour erred in his findings that I was clearly the poorest performing quality and technical officer without justification.

PN52

In the findings, there was no mention of the selection criteria used to select me for redundancy. His Honour did not give any weight or consideration as to what I had to say in my closing submissions and submissions in reply, even though in the arbitration it was mentioned that I would get another chance of presenting my case. His Honour erred that I was counselled about my work performance.

PN53

The issues that led to my termination are discussed in detail in my submission. There are four issues that led to the termination of my employment, the overtime issue, the team rules, the 12-hour shift offer and the termination of the employment itself. When the issue of the 12-hour shift offer was not resolved according to the memorandum of understanding, I sought help from Job Watch and acted on the suggestions.

PN54

I wrote the email of exhibit 19. Your Honour, exhibit 19 was the main cause of the problem and was the fact of this case. When the respondent showed no intention to reply, I accepted the offer of the 12-hour shift on 27 January 2005 before the deadline. The 12-hour shift was to commence on 30 January 2005. When I signed the offer, I was told that it would commence on 6 February 2005 and my employment was terminated on 4 February 2005.

PN55

At the time of arbitration, the respondent had not commenced on the new 12-hour shift roster. This is because it is not workable with five quality and technical officers. Mr Ron Hodges, who terminated my employment was not involved in the 12-hour discussions and therefore made an error. Your Honour, can I very quickly go through the issues that led to termination and the events of the termination?

PN56

THE SENIOR DEPUTY PRESIDENT: Yes, go ahead.

PN57

MR CHAND: Thank you. The issues that led to my termination. On
20 September 2005 a meeting was arranged for me with Mr Trevor Gage who was the HR manager at the time. Mr Trevor Gage told me that I should be looking for a new job. His comments were that my file was getting so thick that no manager will employ me in Sugar Australia. He did not ask me - I am sorry. He did ask me if I had problems with my employment.

PN58

I told him the issues that were stated in my evidence. He did not come back to me with the issues raised, even the issues that had impact on the health and safety in the workplace. Mr Trevor Gage called the meetings because I sought assistance from Accident Compensation and Conciliation Commission regarding the work load and the recovery of my injury on 2 September 2004.

PN59

Trevor Gage was using the similar words or issues discussed at the Accident Conciliation Service. This was the first time that I had come to know who Trevor Gage was. On Wednesday, 26 January, Australia Day, I sent an email, the exhibit 19, to Mr Craig Doyle, who was then the refinery manager. I wrote this email after talking to Job Watch. Job Watch told me to do this in writing and ask the company to respond in writing.

PN60

In needed more time to consider the offer of the 12-hour shift. I also showed my preparedness to go to the 12-hour shift roster as of Sunday, 30 January 2005. I was prepared to work the 12-hour shift, but I wanted to look through the issues of the contract further.

PN61

SENIOR DEPUTY PRESIDENT WATSON: Mr Chand, can I interrupt you? You seem to be reading from your written submission to Senior Deputy President Lloyd pretty much word for word. You won't be required to do that. If you could perhaps just focus on the areas in which you say Senior Deputy President Lloyd was wrong in his decision in determining the matter. We're aware of that material and the background. We have gone to it.

PN62

MR CHAND: Your Honour, on 4 February 2004 at 1.40 pm I was told to go into the office at 2 pm. When I went into the office, I was handed - first of all I was read the document that's marked exhibit 22 and this document was read to me when I went into the office. In this exhibit 22, when I walked into the office, my employment was already terminated, so I was not notified of the reason before the termination took place. Also this document says:

PN63

As you are aware, we have for some time been conducting a review.

PN64

And I was not aware and nobody else in the laboratory or even my manager knew there was a review going on. This document also says that my position has become redundant. Your Honour, it wasn't my position that became redundant because there were five others working in the same position, so therefore I was not given a valid reason for my termination.

PN65

SENIOR DEPUTY PRESIDENT WATSON: For your?

PN66

MR CHAND: Termination of my employment.

PN67

SENIOR DEPUTY PRESIDENT WATSON: Of your particular employment?

PN68

MR CHAND: Yes, your Honour.

PN69

SENIOR DEPUTY PRESIDENT LACY: Were you then told why you were selected for termination, apart from the fact that your position was redundant?

PN70

MR CHAND: Your Honour, all I was told, all there was, this document was read to me and when I was reading the document, then Mr Hodges who was the operations manager, he told me that, Mukesh, we are not giving you an option of redundancy, we have already made you redundant. That was the only comment, the only thing I was told and then the outplacement services person is on site and she was introduced to me.

PN71

Your Honour, if I can very quickly go through the exhibits 15, 16 and 17. These were the memorandum of understanding of the 12-hour shifts that was to take place. In this document, it's already identified that there was a need for six quality and technical officers for the roster to function and the staffing needs was already decided in these documents.

PN72

You can see item 15, 16, that it says 12-hour shift rostering patterns, the manning for the quality and technical officers for the laboratory, that was already established, so there was no other reviews going on as far as staffing needs was concerned. In the same document, one of the issues that I had was the new salary that was offered to me was not adjusted from 40 to 42 hours per week, which is stated in the memorandum of understanding and that caused the whole problem for the termination of my employment.

PN73

Your Honour, it is clear that the respondent terminated my employment without meeting any of the requirements of the Act, section 170CG(3). I would refer the Commission to the section 170CG(3) of the Act and one of the requirements of the Act is was there a valid reason for termination of the employment. My employment was not terminated due to a valid reason.

PN74

It was not my position that was made redundant as indicated in the exhibit 22. No consultation took place regarding the redundancy, no notice was given that the respondent was doing operations review. His Honour erred in concluding that the termination was due to operational reasons by failing to link the evidence and supporting documents that there was no operations review going on with the respondent.

PN75

There is substantial doubt that my employment was terminated due to operational reasons. His Honour does not substantiate his findings. In paragraph 6 of the decision, his Honour says a redesign of laboratory work was associated with the planning for the introduction of the 12-hour shift. The laboratory work was not associated with the introduction of the 12-hour shift. They were two different issues and the issue of review of staffing needs never existed before or at the termination of my employment.

PN76

Your Honour, in the exhibit 19, all I was asking the management was a little bit more time to consult with my other colleague who was away overseas as to the issues of our employment contract because there was a bias in the system because people were working on two different agreements and there was a vast amount of difference in salaries and we were all doing the same job. On the basis of this document, I was terminated from my employment.

PN77

There is no documentary evidence the respondent has produced that indicated that they were doing a review of the staffing needs in the laboratory. It is very clear from the exhibits 15, 16 and 17 that the respondent was waiting to use the 12-hour shift plan for over two years before the termination of my employment. The staffing needs were already identified and we were working towards the working conditions and the manning of the roster.

PN78

There is nothing mentioned in exhibit 15, 16, 17 that the respondent was doing a review of staffing needs. The review of the 12-hour shift plan were two different things. Your Honour, Sulocki is authority for the following propositions. While operational requirements may provide a valid reason for reducing the size of the employer's workforce, they do not necessarily provide a valid reason for retrenchment of particular employees.

PN79

Was I notified of a valid reason? Exhibit 22 was handed to me when I walked into the office. Your Honour, I have cited in the case, I have relied on 10 authorities in my appeal. Can I hand them up?

PN80

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN81

MR CHAND: Your Honour, if I can first refer to number 10. It's the case of Ben Clifford Sabeto v Waterloo Car Centre Pty Ltd, the decision that was made by the Full Bench on 20 May 2003 in Melbourne. This is the case which talks about a summary dismissal and if I can refer you to page 5, paragraph 42, which says:

PN82

As a matter of logic, procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment, in order to provide them with the opportunity to respond for the valid reason identified.

PN83

SENIOR DEPUTY PRESIDENT WATSON: But in this case, Mr Chand, Senior Deputy President Lloyd found, did he not, at paragraph 23 that you were not accorded an opportunity to respond to an assessment of relative performance, so he's found that you weren't offered an opportunity to respond and then he's balanced that amongst the other considerations, so I am not sure you need to go much further on this point. It's accepted that one of the considerations is whether or not you were afforded an opportunity to respond and the Senior Deputy President in this case in fact found that you were not afforded that opportunity.

PN84

SENIOR DEPUTY PRESIDENT LACY: We understand your point.

PN85

MR CHAND: I am sorry?

PN86

SENIOR DEPUTY PRESIDENT LACY: We understand your point on that.

PN87

MR CHAND: Your Honour, if I can say this again, a notification of a valid reason must occur before the termination has taken place. In this case, the notification took place after the reason was given is not a valid one. Your Honour, as you pointed out, I wasn't given opportunity to respond to the reasons why I was terminated from my employment.

PN88

The law only states that if opportunity to respond was given. It does not say what would have been the outcome. Was I warned about my work performance? No. It is also very important to note that I formed part of the refinery operations team as mentioned in exhibit 3 which was my original employment contract. In the second paragraph it says:

PN89

In this role, you will report to Ron Weilbrecht, technical manager, and form part of the refinery operations team.

PN90

The other matters of concern is the manner in which I was dragged off the premises was appalling and humiliating. I am certainly hurt by the whole event that has affected my confidence, self esteem and self worth in the community. Your Honour, if I can quickly highlight the authorities that I have cited in support of my case.

PN91

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN92

MR CHAND: Case number one is Liu v Windsor Smith. That was the case decided by you, your Honour, and you made a number of comments regarding the selection criteria, the absence of selection criteria. You made comments about no notice given, no alternatives to employment considered. You also said nothing was said to the employee as to why they have been selected, no information relating to their selection was provided and no opportunity was given for any of the employees to discuss alternatives to the options or to contest their selection. You also mention in that case, your Honour, that:

PN93

In the circumstances of this case, I am satisfied that the employer undertook, that the decision, no fair or reasonable consideration of the position of the employees made redundant. They were deliberately given no notice and no opportunity to suggest alternatives to the redundancy. They were not advised of the reasons they were chosen for the redundancy.

PN94

You went on to say, your Honour, that:

PN95

I am not satisfied that there exists a valid reason for the choice of employees made redundant.

PN96

Your Honour, page 6 of the same case, it's not numbered, somewhere in the middle, you went on to say:

PN97

In my view, the evidence as a whole reveals an appalling process of applying the redundancy involving a deliberate lack of notice, no explanation to employees of reasons they were chosen, the absence of any objective criteria and absence of any opportunity for employees to know and dispute the basis of the termination.

PN98

Case number 2, which was the appeal by Windsor Smith, on page 3 where it talks about was there a valid reason for the terminations, in paragraph 2 it refers to a case. I think it does refer to the case of Kenefick. It mentions:

PN99

Their Honours concluded firstly to establish a valid reason based on operational requirements of reducing the size of the workforce does not necessarily establish a valid reason based on operational requirements.

PN100

Sorry, your Honour, I will read that again:

PN101

Their Honours concluded firstly that to establish a valid reason based on operational requirements for reducing the size of the workforce does not necessarily establish a valid reason based on operational requirements for the termination of employment of a particular employee.

PN102

Secondly they found that a valid reason may yet operate in relation to the employee concerned in a way that it is harsh, unjust and unreasonable. On page 6, failure to give notice of redundancy, the Full Bench went on to say that:

PN103

Senior Deputy President Watson was very concerned about the lack of consultation and absence of notice in this case. He pointed to the fact that insofar as employees might have been selected on the basis firstly of performance, they had no opportunity to contest assessments made and there was no opportunity to offer alternatives to redundancy. In this regard, it is relevant that there was evidence of some employees being prepared to share jobs or job sharing.

PN104

If I can make a point in regard to that, your Honour, that when I was terminated from my employment, there was considerable amount of overtime coming on in the laboratory and there was still with six quality and technical officers, I think, there was still a shortage of labour in that workplace. The Full Bench went on to say in conclusion that:

PN105

Nonetheless, the Senior Deputy President was entitled to conclude that the terminations in each case were harsh, unjust or unreasonable because of the manner in which they were...(reads)... clearly entitled to take into account.

PN106

Case number 3, which is RA Smith v Domino Mining Equipment Pty Ltd, in this case, very similar to mine, your Honour, except that in this case the review was going on and there were consultants hired to do the review and the question in this case was the selection of a particular employee to be made redundant. On page 11 of this case, somewhere in the middle, the paragraph is not numbered:

PN107

While on Mr Smith's evidence he was notified of the reason for his termination, it is quite clear he was not given an opportunity to defend his position with the respondent. Mr Smith was not advised of the selection for his redundancy. He was not given an opportunity to respond to his selection or the functions or the roles in the new structure, nor was he given an opportunity to discuss alternative roles in the organisation which may have prevented his termination.

PN108

The Commissioner goes on to say that:

PN109

I acknowledge the respondent in this letter of termination, exhibit 8, that he was advised that Mr Smith advised the Australian Chamber of Commerce was on site to provide assistance and so forth.

PN110

He goes on to say that:

PN111

I consider, while providing this type of assistance to the employees is credible, it falls well short of what I consider to be appropriate conduct by a reasonable employer or the employer/employee relationship in the circumstances of this case.

PN112

The Commissioner goes on to say that:

PN113

The respondent attempted to present a picture of ongoing counselling of the applicant. On evidence, I do not believe that the discussions had with
Mr Smith would be considered by me or Mr Smith as a warning that the termination was imminent if improvement was not shown.

PN114

On page 12, the Commissioner says:

PN115

In this case, after careful consideration of evidence, I am not convinced that Mr Smith was provided with counselling or consequent warnings in relation to his performance or conduct, indeed, if any warnings were warranted.

PN116

Your Honour, on page 17, the Commissioner goes on to say:

PN117

In conclusion, I accept the fact that the respondent was in a position where the decision-maker's decision to make...(reads)... Further, in my opinion, Mr Smith was not warned in relation to unsatisfactory performance and conduct.

PN118

Your Honour, the Commissioner goes on to say as I've previously stated:

PN119

It is management's right to manage its operations. The Commission will not interfere with the management...(reads)... management did not examine or discuss an alternative work arrangement with him or his representatives.

PN120

He goes on to say:

PN121

I do not consider that Mr Smith was given a fair go by the respondent.

PN122

The Commissioner goes on to say:

PN123

In my opinion, a reasonable employer faced with the necessity of redundancy for a given number of employees would have taken to Mr Smith's circumstances and discussed the options of lower duties or alternatives to redundancy.

PN124

Your Honour, case 4 is between Mr Szybkowski v Capital Carpets. If I can refer to page 3 - sorry, just before page 3, page 2 right at the bottom, the conclusions:

PN125

Having heard the evidence called on behalf of both the parties and taking into account the submissions made by...(reads)... was not given the opportunity to respond to the matters which were used to justify his selection for redundancy.

PN126

Case number 5 is between Judith Collin and Joan Collin Group Pty Ltd. Your Honour, this case is not about redundancy, but it's dealing about the issues that existed and the issues that needed to be sorted out. It talks about the failure of the management to deal with the issues that existed in the workplace. Your Honour, if I can refer you to page 5 of this case, additional matters, section 170CG(3)(e). Your Honour, the Senior Deputy President talks about:

PN127

An employer has the responsibility in circumstances such that those that pertained in this case try to resolve...(reads)... and its insistence on the withdrawal of the memorandum in the circumstances was unreasonable.

PN128

On page 5, paragraph 6 - - -

PN129

SENIOR DEPUTY PRESIDENT LACY: Mr Chand, his Honour only dealt with the question of whether or not the termination of your employment was harsh, unjust or unreasonable, so having decided that in his view it was not, he didn't deal with remedy. We can only consider whether or not his Honour made an error in that part of the decision that he dealt with, so the bit about remedy is not relevant.

PN130

MR CHAND: Thank you, your Honour. Your Honour, in case number 6, there's very little that I can say, just in paragraph 40 it says:

PN131

Failure to consult with Ms Dickinson prior to termination deprived her of the opportunity afforded to most persons being made redundant to seek out alternative work while still having an income.

PN132

Your Honour, case number 7, this is between Tenedios v Buckland Products Pty Ltd. This case also runs very similar to mine. It's based on the operational requirements of the company. It talks about the failure to consult with the employee or the applicant and there was no opportunity to work out the notice period. Your Honour, the Commissioner in this case made a comment on page 2, paragraph 19, that Mr Tenedios was a senior employee.

PN133

He was also an employee who for reasons of his age and skills may have found it difficult to find suitable alternative employment. There is no suggestion that the company had concerns about how Mr Tenedios might behave which would justify failure to consult with him or give him opportunity to work out a reasonable notice period while still looking for alternative employment. In case number 8, your Honour, Sveto Kezicu v P and O Catering Services Pty Ltd. I will just read out the summary of this case, on page 6 of 7. It says:

PN134

Termination of employment, unfair dismissal, kitchen hand, catering industry, the respondent contended that once...(reads)... to respond to the reasons. It was found that the termination was unjust.

PN135

Case number 9, your Honour, this is between Lena Tenace v Victech Limited. This case again runs very similar to mine, except that it was due to the operational requirements of the respondent and the review was going on. There was a selection criteria, but there were deficiencies in the selection criteria. On page 5 in the findings, paragraph 31, Deputy President Ives says that:

PN136

While I am of the view that the company had a valid reason for the redundancy based upon the operational requirements...(reads)... the section 170CG(3)(c) by neglecting to provide Ms Tenace with an opportunity to respond to the critique of her capacity.

PN137

This case also mentions the lack of documentation. It's mentioned in paragraph 35. Your Honour says that:

PN138

It is my view that the lack of documentation does not in itself evidence a failure on the part of the company to objectively apply the selection criteria. Nonetheless, in the event that the process or its result is change, as in this case, it does produce considerable difficulty in evidencing the fairness and objectivity of both the process and its results.

PN139

Page 7, paragraph 44, talks about the assumptions of the skills. Your Honour goes on to say:

PN140

However, the assessment of these conclusions regarding Ms Tenace's skills, qualifications and experience illustrate that they were based on questionable reasoning, assumptions and gut feeling.

PN141

On page 8, your Honour talks about the procedural deficiencies in the case.

PN142

SENIOR DEPUTY PRESIDENT LACY: You have taken us to the authority that you have numbered 10, but you go on if you wish to take us to anything.

PN143

MR CHAND: In case number 10, Ben Clifford Sabeto v Waterloo Car Centre Pty Ltd, it basically talks about whether the employee was notified of the reasons before the termination of the employment or after the termination of the employment. It talks about in paragraph 73 on page 7, it talks about the logic, procedural fairness or requiring an employee to be notified of the valid reason of the termination before a decision is taken to terminate the employment in order to provide them with the opportunity to respond to the valid reason identified. Their Honours go on to say:

PN144

Section 170CG(3)(b) and (c) would have very little effect, if any particular effect, if it was sufficient to notify the employees and given them opportunity to respond after the decision has been taken to terminate the employment. It's much like shutting the stable door after the horse has bolted.

PN145

On page 8 of 14, in paragraph 13, the Full Bench mentions:

PN146

Failure in the findings in respect to the section 170CG(3)(c) of the Act in the factual circumstances of the case...(reads)... Commissioner's decision and we will deal with Mr Sabeto's section 170CE applications ourselves.

PN147

That is what was considered in that case, your Honour.

PN148

SENIOR DEPUTY PRESIDENT WATSON: Anything further, Mr Chand?

PN149

MR CHAND: Your Honour, that is my submission in summary and as you are aware, my detailed submission has been submitted and based on the submission and the deficiencies of the Act, I personally feel that there were errors in this case and I hope that leave to appeal shall be granted in this case. Thank you.

PN150

SENIOR DEPUTY PRESIDENT WATSON: Thank you.

PN151

SENIOR DEPUTY PRESIDENT LACY: Thank you, Mr Chand.

PN152

SENIOR DEPUTY PRESIDENT WATSON: Thank you for that. Mr McCarthy.

PN153

MR McCARTHY: If the Commission pleases. First of all, in accordance with the directions in relation to this matter, there are a number of cases cited in our written submissions and I have copies for each member of the bench in relation to those cited cases. There's a list of the cases on the front of the bundle. I don't propose to go to those case references at the moment, your Honours and Commissioner, in that they are simply there as support material for the written submission cases cited.

PN154

There is a last case that I will actually mention during my brief oral submissions. What I would like to do is make some general comments about the matter and then briefly talk about some technical aspects of the proceeding. The general comments are these. In our view, in the company's view, there is a recurring theme that runs throughout all aspects of this case and that theme is, with the greatest respect to the appellant, the appellant's refusal to accept matters when they don't suit him or go his way.

PN155

For example, from the outset of his brief period of employment with the company, which was a period of less than two years, he refused, for example, to accept the fact that even though he was a salaried employee and even though under his salary employee contract arrangements there was a recognition of reasonable overtime to be included in his remuneration, he simply would not accept the fact that he ought to work overtime during the week without payment of overtime.

PN156

SENIOR DEPUTY PRESIDENT LACY: Not 20 hours, though, is it?

PN157

MR McCARTHY: Well, the incidence of 20 hours, perhaps on one occasion during the entirety of his period of employment. It was a situation in which, as I understand it, other members of his team were absent and the general practice was that in those circumstances, members of the team would do what they could. The reality of it is, in answer to the issue raised, that and I think you see this in the evidence put, that the appellant's position virtually was he refused to work overtime Monday to Friday and, in fact, so much is that able to be supported that one of his allegations against his fellow employees and the management is that there was an air of if not an arrangement or conspiracy of discrimination against him, because of his refusal to work overtime Monday to Friday and it came to the issue of access to overtime, paid overtime on weekends.

PN158

While I accept the point you've raised on that particular circumstance and it's clearly evident that the Commission has done, as it indicates it would and that's read the material, I think that there's an extraordinarily unusual case and no doubt a very good example for the appellant to raise and why he specifically did so, but I think when standing against the bulk and volume of material that otherwise indicates what his true position on overtime is, I don't think, in my personal view, I don't think it stands as a valid example of what was really going on in the workplace.

PN159

Further to my examples, there was clearly also, as evidenced by the material before Senior Deputy President Lloyd, as seen by witness evidence, et cetera, a refusal by the appellant to attend team meetings. He had a refusal to accept the responsibility to attend them and a refusal generally to perceive that he had responsibilities to the other members of the team.

PN160

There is significant witness evidence, material about that fact and the tensions that caused in the workplace. There was a refusal by the appellant for a long period of time to accept the notion of a 12-hour shift roster when it was mooted that it was now time to introduce that concept, in spite of the fact that he was in the unusual circumstance of actually agreeing at the time of his employment that as a matter of principle, 12-hour shifts would come in to operation as part of his employment arrangement if that was a need of the business.

PN161

I make the comment that the issue of 12-hour shifts, the issue of overtime, et cetera, they were not the reasons for his termination, by the way. Clearly, the reason for his termination was a change in the operational requirements of the business, although these difficulties were, of course, indicative issues in trying to identify for management the assessment of the most effective versus the last effective employee within the six-man workforce of the laboratory which was the group of employees from whom or amongst which the company had to make a selection and when it came to the question of identifying an employee to be made redundant.

PN162

SENIOR DEPUTY PRESIDENT WATSON: So they were the reasons for the retrenchment of the particular employee?

PN163

MR McCARTHY: No, they were indicative of a pattern of issues amongst a number of issues that needed to be considered. In reading the evidence before the Commission, before Senior Deputy President Lloyd, the witness statements, et cetera, there is a pattern of inability to complete work performed within hours prescribed, there was a pattern of an inability or an unwillingness to stay behind and get work done in an effective manner, to hand over to other members of the team completed work.

PN164

What I am saying is that in a small workforce, there was a series or quite a number of events, circumstances, incidents, behavioural patterns that allowed the management and, quite frankly, the fellow employees and this is evidenced by the witness material before Senior Deputy President Lloyd where clearly there was a consensus amongst the parties and remembering that three - the witnesses constituted three of the five other employees in the workplace as well as the directly responsible members of the management team and more senior members of the team, that there was a general consensus amongst that group that the appellant was in fact the least effective employee in the workplace and that there was just a range of indicators as to why that could be identified to be so.

PN165

SENIOR DEPUTY PRESIDENT WATSON: Is that the test for the Commission, whether or not there was a general consensus of - - -

PN166

MR McCARTHY: No, not at all, and I apologise to the Commission if it's suggested that that's what I am inferring. What I'm simply observing is that - the test, of course, being assessed here is whether there's a fair go all round, whether the termination was harsh, unfair and unjust, whether there was a reasonable or appropriate criteria considered and I am simply observing that for want of a better expression, the ability of the senior management to identify the appellant as the appropriate person to be terminated where there was a need to reduce the size of the workforce in the company's laboratory was almost a self selecting process.

PN167

SENIOR DEPUTY PRESIDENT LACY: There was no documented record, was there, of these incidents or issues that was tendered in evidence to demonstrate the basis upon which that sort of process was followed through?

PN168

MR McCARTHY: The selection criteria itself, is that the question?

PN169

SENIOR DEPUTY PRESIDENT LACY: Well, yes, the - - -

PN170

MR McCARTHY: The company concedes and has done consistently that there was no formally prescribed selection criteria set out. Whether it's accepted by the Full Bench or otherwise, it was accepted by Senior Deputy President Lloyd, part of the reality of that is that we were talking about the choice between a small workforce of only six employees and the principal responsible member of the management team to make the assessment was in fact the laboratory manager who worked every day in direct contact with and directly within the work environment of both the appellant and the other laboratory employees.

PN171

SENIOR DEPUTY PRESIDENT WATSON: That being Mr Hodgers?

PN172

MR McCARTHY: No, that being - - -

PN173

SENIOR DEPUTY PRESIDENT LACY: Mr Doyle?

PN174

MR CHAND: Mr Weilbrecht.

PN175

MR McCARTHY: Weilbrecht. I apologise for not being able to remember the surname. The view of the company is that consistent with this sort of pattern of approach is that - and you've heard it today, that the appellant also is unable to and refuses to accept the legitimacy of the operational change implemented by the company. In other words he refuses to accept the fact that there was a need and, in fact, a genuine redundancy at the site and that's in spite of the fact that whilst his termination occurred early this year, by the time the matter came before Senior Deputy President Lloyd in June, in fact, it had then been five months since the workforce in the laboratory had reduced from six to five and just for its information.

PN176

We tell the Full Bench now that the size of the laboratory workforce at the site continues to be five and has not grown and it will remain five because there was a need to reduce the size of the workforce emanating from the general efficiency review mentioned in the material before you implemented by the newly appointed operations manager of the site and as part of the general review across all aspects of the business in order to improve the economic viability of the business, there was a realisation that in spite of earlier beliefs by earlier management that there might be a need for six laboratory employees on a 12-hour shift roster as and when it might be implemented, the decision was then made that that was not necessary, that it was over-manning, that a number of employees appropriate for the laboratory as assistants was five, not six and hence the termination and redundancy that took place.

PN177

SENIOR DEPUTY PRESIDENT LACY: Well, Mr Doyle in fact expressed some concern, didn't he, about the operation of five people and at paragraph 368 of the transcript, Mr Chand asked him:

PN178

Mr Doyle, having done all the hard work for the 12-hour shift roster, were you surprised that the position was made redundant?

PN179

And he said:

PN180

I was surprise with that roster, that you may be able to handle the relief with five people. That would be more juggling about how the annual leave was handled.

PN181

Then the cross-examination went on and while he acknowledged there had been some general discussions about numbers necessary, at paragraph 372 he says:

PN182

The 12-hour shift from 27 January, obviously all work and all planning had been done that the laboratory was going to go to a 12-hour shift as a trial. I think we had agreed six months and that was all planned based on that, that we were going to go to 12 hours, even though it was a long, hard process -

PN183

And so on and then again Mr Chand was seeking to delve into that and you objected and he was stopped from cross-examining. He said:

PN184

Yes, he's answered it quite comprehensively and, frankly, we're not here to argue the point with you, Mr Chand.

PN185

That was the Senior Deputy President, so he was not allowed to pursue that line of questioning or testing, if you like, the necessity for the operational requirements.

PN186

MR McCARTHY: It would be helpful, I would suggest, to the Commission having picked up on those particular aspects of the earlier transcript to appreciate the exact position of Mr Doyle in the organisation both immediately prior to and subsequent to Mr Chand's redundancy.

PN187

He was never involved in the laboratory. He in fact was responsible for production in the factory and the reason he was given the task of interfacing with the laboratory employees in relation to the 12-hour shifts was that he had been instrumental in the negotiation and implementation of the 12-hour shift roster in the refinery.

PN188

Because he had that practical experience about how 12-hour shift rosters worked and the associated employment arrangements that needed to be adjusted as part of the implementation of such a 12-hour shift roster in conjunction with a move from any wages employees to an annualised salary arrangement, Mr Doyle was very much personally involved in that process.

PN189

However, as I say, in the negotiation on the 12-hour shift roster process, he actually wasn't directly involved in the laboratory, but he was not a member of the management involved in the team of assessing what were the labour level requirements and skill level requirements of the laboratory and, in fact, at the time of the decision to make an employee redundant and subsequently the appellant's termination and redundancy, Mr Doyle no longer worked at Yarraville or for Sugar Australia. In fact, he had taken a job with a related company at Mackay in North Queensland, so with respect to Mr Doyle, I think part of the reason that that examination and cross-examination evidence went in the direction that you mention was that the proposition that, you know, really, it's unsafe ground because it's information that whilst Mr Doyle might express an opinion, he probably wasn't in the position to have a factual understanding and knowledge of just what had been going on.

PN190

SENIOR DEPUTY PRESIDENT LACY: I suppose the point is, though, that
Mr Chand was saying that operational requirements was not the genuine or real reason for his termination. Wasn't he entitled to test those sorts of issues?

PN191

MR McCARTHY: I don't argue the fact that he was entitled to do that. I am simply observing that the particular witness he was examining at that point in time was not really a witness who as a member of the management team was really in a position to know what the real basis of the decision and the operational requirements decision that led to the redundancy were or were not matters of substance.

PN192

SENIOR DEPUTY PRESIDENT LACY: All right. Well, was Mr Weilbrecht a person who would have some capacity or knowledge about those sorts of things?

PN193

MR McCARTHY: Yes. He and Mr Hodgers were the two principal persons responsible for that.

PN194

SENIOR DEPUTY PRESIDENT LACY: Well, he cross-examined or tried to cross-examine Mr Weilbrecht about the assertions that have been made about his behaviour or conduct generally and that starts at paragraph - or the part I am referring to starts at paragraph 471 when he was testing the assertions that he had left the laboratory unattended and so on and then at paragraph 475 he says:

PN195

I put to you that I did not leave the laboratory unmanned on that particular occasion.

PN196

And you objected and then his Honour said:

PN197

Mr Chand, this is not an occasion to debate the evidence. You put the question and move on with asking questions.

PN198

I mean, wasn't he entitled to test those assertions about his conduct?

PN199

MR McCARTHY: I think what was going on, with respect, was a question of a witness saying that a certain issue was in his view what had occurred and what was being put by the applicant, now appellant, in the cross-examination was a suggestion that and I suppose not to put too fine a point on it, but the witness was lying.

PN200

SENIOR DEPUTY PRESIDENT LACY: Well, he is entitled to put that to the witness.

PN201

MR McCARTHY: He is entitled to raise that, but I suppose the proposition really is that the evidence of the witness which was that in fact he had left and left it unattended which is evidence that is supported by, as I recollect, other witnesses who were associated with the same event - - -

PN202

SENIOR DEPUTY PRESIDENT LACY: Well, again, I mean, Mr Chand's attempts at demonstrating the timing in that matter were all cut off as well. Each time he tried to raise that with the witnesses who were giving evidence about it, he was told it wasn't relevant to know what time he started and what time he left.

PN203

MR McCARTHY: Well, with respect, I believe the exchange you and I are having also is going back to this notion that the reason that Mr Chand was dismissed was related in some direct way to whether he was or was not in attendance at work when he was required, et cetera.

PN204

SENIOR DEPUTY PRESIDENT LACY: That was part of his case, that's right.

PN205

MR McCARTHY: That's part of his case.

PN206

SENIOR DEPUTY PRESIDENT LACY: The company has denied - - -

PN207

MR McCARTHY: I suppose what we were putting - sorry, I interrupted you.

PN208

SENIOR DEPUTY PRESIDENT LACY: No, that's all right.

PN209

MR McCARTHY: I suppose what we were putting was that, look, there is a myriad with respect to the applicant, appellant, a myriad of what we perceived to be distracting arguments that needed to be addressed by us as respondents to these matters and could not be avoided, but at the end of the day were not the reasons why Mr Chand was terminated and made redundant.

PN210

He was not, for example, terminated and made redundant because he either one or on a number of occasions may have not been at work performing overtime when we thought he should have been and he perhaps thought he should not. That wasn't what was going on. The reason he was made redundant was there was a decision made to reduce the size of the required workforce in the laboratory and we needed to make an employee redundant and that in making that assessment, we identified rightly or wrongly based on the logic of competency, skill, performance, ability to fit into a team, co-operation, support for the company's general aspirations and direction of operation, that the least effective of the six employees we had is Mr Chand.

PN211

Now, in saying that, that's not to suggest that Mr Chand is completely, hopelessly an ineffective employee. It's a relative assessment from the work pool we have to make that assessment and draw from that he was the least effective and to this extent - - -

PN212

SENIOR DEPUTY PRESIDENT WATSON: Based on a judgment which
Mr Chand was seeking to challenge by way of cross-examination and he seems to have been cut off at certain points in his attempts to do that.

PN213

SENIOR DEPUTY PRESIDENT LACY: I suppose my point is as a member of the Full Bench, I would have been better armed to inform my mind about those matters if he had have been permitted to develop his argument.

PN214

MR McCARTHY: I am not sure how I can respond to that aspiration of the members of the bench.

PN215

SENIOR DEPUTY PRESIDENT LACY: You proceed with your submissions.

PN216

MR McCARTHY: In relation to this pattern that we would suggest that does exist, Mr Chand, the appellant also found - I would suggest still not today given the specially referred to additional exhibits he was able to hand up which relates to his medical condition in May 2005. He would not and still does not accept today that his termination was not related to his injury, even though there is no evidence whatsoever that the company's decision to select him as the redundant employee had anything to do with his earlier worker's compensation work related injury.

PN217

He was paid a very generous redundancy benefit upon termination of some more than 24 weeks' pay for an employee with less than two years' service. He clearly was unable to accept that that was a reasonable payment and, in fact, in his original application sought additional specific payments and suggested that in some way he had been underpaid, nor was he willing to accept and refused to accept a further monetary offer prior to arbitration commencing when the parties attempted to conciliate this matter and find a settlement between them on a monetary basis, an offer that would have taken him to a point of receiving in excess of the maximum available 26 weeks figure under the statute, but he still refused to consider that and matters had to go to arbitration.

PN218

He refused and I believe still indicatively in the submissions before this Commission refuses to accept that in some way he wasn't discriminated against by the company and some of his fellow employees and that's in spite of the fact that he did lodge, but was unsuccessful, in his application for recognition of that discrimination by the Victorian Anti-Discrimination Commission and in our view, what he does now is he refuses to accept that there is no merit to his unfair dismissal claim in spite of the consideration and determination to that effect by Senior Deputy President Lloyd in what we regarded as an appropriate, fair and reasonable hearing of those facts.

PN219

What I suppose we're really saying is that we understand that a terminated employee is not expected to be in any way, shape or form happy about being dismissed and made redundant. We're simply observing that Mr Chand, no matter what conceptually is done or what proceedings are gone through, what amounts of money are paid to him, what offers are made to him, if they're not what he wants, then the pattern of it appears to be that then it won't be accepted and it's not fair and reasonable.

PN220

Perhaps in relation to and they're very simple comments, I hope they're not too simplistic, but simple comments about the general process of appeal, we would observe that there is no automatic right of appeal available to the appellant in these proceedings. They are only to be available by way of leave granted by the Full Bench and we would put that the onus of proof in securing a right to appeal lies with the appellant in such proceedings.

PN221

We would also put to the Commission that in order for the appellant to succeed, he must establish that the tribunal in the first instance, of course, being Senior Deputy President Lloyd, was in error, be it either an error of fact or an error of law in deciding to make the order he did so decide. We would put that Senior Deputy President Lloyd was exercising a discretion that's given to a member of the tribunal in the first instance by the Act in making his decision and that is a discretion that should not be taken away from him in the appellate process.

PN222

The fact that the appellant does not necessarily agree with the Commission's exercise of that statutory discretion does not mean that the Commission has made an error and does not warrant appellate interference in the original decision and it is clear in our view that the appellant's lengthy written appeal submission or from that lengthy appeal submission, that this is the true nature of the appeal that's before this bench.

PN223

We would suggest that the true nature of the appeal before this bench is that the appellant simply wants to take issue with Senior Deputy President Lloyd's discretionary findings on the evidence that was put before him and I say that because in having read those submissions, I would put to the bench that the appellant's submissions are simply a re-representation of all of the facts, allegations and assertions made by him to the Commission in the initial proceedings, that there is nothing new in the appellant's appeal submissions in terms of facts, in terms of evidence or in terms of case law that was not brought by the appellant in the initial hearing.

PN224

Further, we would put that there is no evidence brought by the appellant in these matters that would establish an error of fact or of law made by Senior Deputy President Lloyd that would warrant appeal intervention by this Full Bench. In our view and with great respect to the appellant, our assessment of his submission in these proceedings is it is a lengthy rendition all of the same material earlier put the Commission.

PN225

Effectively in our view, what this Full Bench is being asked to do by the appellant is to replace Senior Deputy President Lloyd's assessment of the facts that were before him with its own assessment of those facts and this is not what the appeal process should be about. For an appeal to lie, the Full Bench must find that there is an error in Senior Deputy President Lloyd's decision, not that he simply made an assessment of facts that you might have chosen to assess in a different manner and in considering whether there is an error, the reason for Senior Deputy President Lloyd's decision must be read as a whole. The appeal process is not an exercise of combing through the earlier decision with a fine tooth appellate comb to find a verbal slip or shortcoming that would warrant interference.

PN226

SENIOR DEPUTY PRESIDENT WATSON: Kirby J.

PN227

MR McCARTHY: Yes. You're way in front of me, Senior Deputy President. It is a narrow approach and it's a narrow approach that this Commission itself in Full Bench proceedings has rejected and the particular case I refer to is the 10th on my list, that being the ALH Group Pty Ltd Trading as Royal Exchange Hotel v Mulhill and so it's attached, that decision and I think in the world of industrial relations and employment law, it is a very sensible approach and philosophy being espoused by the Commission in that regard and that is and I would suggest that this is a reality, things are never perfect in the workplace.

PN228

However, in a decision made by the Commission where, for example, in this instance Senior Deputy President Lloyd has a significant volume of material before him to consider and in his decision, he has gone through and observed that he has taken into account each and every one of them, the pieces of material before him, then that's the approach. You have to weigh up whether he's made an error taken as a whole, not specific small events that may be able to be identified as part of the process.

PN229

We would with respect to the appellant, though, suggest that that's what he's really asking you to do is to find some small shortcoming aspect of material that he has put, that he believe has not been properly considered and that's really the basis of his appeal. It would in our view appear that what is being put is that what Senior Deputy President Lloyd really has not done effectively - I apologise, what is being put is that because Senior Deputy President Lloyd was able to succinctly set out in a decision and reasons for his decision in only four pages and he has not commented at some great length on every issue that the appellant has raised, that that in itself means there's something wrong with the decision, that there is some error in relation to it.

PN230

We would respectfully suggest that that's simply not an acceptable and plausible approach to an appeal process. In our view, Senior Deputy President Lloyd's decision when read as a whole considered all of the material before him, including the lengthy written submissions put by both parties and in particular the applicant, the evidence of the six witnesses that were called during those proceedings, the case law and further submissions in reply that were all set out in writing over the ensuing weeks after the hearing date that provided the applicant, appellant in these proceedings, every good opportunity to have all material he wanted put before the Commission and considered, including case law and any comments he wanted to make in a considered view after the formal hearing proceedings had taken place of anything he might have learned through the examination and cross-examination of the witnesses.

PN231

In his decisions, Senior Deputy President Lloyd did pay regard to each of the matters he is required to give consideration to under section 170CG(3) of the Act and that includes an observation by the Senior Deputy President about the fact that he did consider the case law that had been put to him as a written submission following the actual formal hearing date, yet he's accused of not having taken consideration of or given weight to that case law, in spite of the fact that he states in his own decision that he has done so.

PN232

Perhaps I can just simply say this for what it's worth. I do believe and this is perhaps a personal comment that there is an unfairness being levelled at the Senior Deputy President in suggesting that the applicant at that stage, now the appellant, was not given an opportunity or time to put his case. I believe that that is a terrible unfairness levelled at the Commission.

PN233

In my view, the Senior Deputy President was very patient with the applicant at that stage, recognising that he was representing himself and the only criticism I believe - sorry, it's not a criticism, the suggestion of criticism seems to be and it was almost exampled here today, the suggestion was that the Senior Deputy President was trying to observe and assist the then applicant in pointing out that he had read all the lengthy written submission and that it wasn't necessary for the then applicant to read all of that material.

PN234

He assured him on numerous occasions that he had read that material. It seems to me that the appellant in these proceedings now seems to suggest that those interruptions by the Senior Deputy President which in my view was intended to be assistive, not disruptive, are now taken as evidence of the fact that he did not give the then applicant every opportunity to submit his case.

PN235

Personally, I cannot accept that that's a fair criticism to be levelled at the Commission in those proceedings. Be that as it may, we simply conclude by observing that we do not believe that the Senior Deputy President made an error either in fact or in law that would warrant an intervention by the appeal bench.

PN236

The fact that the Senior Deputy President disagreed with the appellant's view of the issues, something that the appellant cannot accept, is the single ground for these proceedings still going on and we believe is no justification or ground for an appeal. In our view, no appeal should lie. The appellant should not be granted leave to appeal. Senior Deputy President Lloyd's decision should be allowed to stand. Subject to any questions the bench may have of me, they are my submissions.

PN237

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr McCarthy.
Mr Chand, in reply.

PN238

MR CHAND: Your Honour, regarding the issues of if Mr Doyle was directly involved with the laboratory, the answer to that question is yes, he was part of the operations team and he was the manager responsible for dealing with the 12-hour shift operations and working out the memorandum of understanding. It's mentioned somewhere in the transcript that I couldn't find, but I have mentioned that in my submissions and it's also the admission of Mr Ron Weilbrecht who was the technical manager that he had very little involvement in the laboratory and the issues of the 12-hour shift. He mentioned that in the transcript himself.

PN239

As far as relative performance goes, measurement of relative performance, the respondent mentioned that Mr Ron Weilbrecht was part of the day to day operations of the laboratory team which is not true. His office was elsewhere in the building. He was hardly seen and we reported on shift basis to the shift managers which formed part of he operations team, so what I'm trying to say, he was not in a position to make relative performance assessments of my work performance. The mention of offer to settle the dispute before the arbitration, I have in my possession correspondence that took place with Shelley Murray I think.

PN240

SENIOR DEPUTY PRESIDENT WATSON: I don't think you need to go to that, Mr Chand.

PN241

MR CHAND: But it only came in a day or two days before the actual arbitration and I was fully focused on the arbitration.

PN242

SENIOR DEPUTY PRESIDENT WATSON: Yes, it's not an issue that arises for the purpose of the appeal.

PN243

MR CHAND: Thank you, your Honour. The other issue that the respondent mentioned about taking my case to the equal opportunity, it was not that I failed in equal opportunity, but what I was told was for the same issue, I can't have the case in two places, so I chose to go by the Industrial Relations Commission. Now, on the issue of overtime, attending team meetings, refusal to accept the 12-hour shifts has all been discussed in my submissions.

PN244

That's why I made very detailed submissions to the background as to what was happening. The issue about overtime was if Senior Deputy President Lloyd had accepted exhibit 25, he would have seen where I was coming from on the issue of overtime. I have mentioned that in my submission.

PN245

SENIOR DEPUTY PRESIDENT WATSON: Can you explain that to us?

PN246

MR CHAND: Yes, I will just explain that in a minute, your Honour.

PN247

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN248

MR CHAND: I will just explain that, your Honour, but it's mentioned in my submission, in the introductory part of my submission that when I did work overtime, as you can see, I have got four copies of the two pay slips and I believe I've got the originals in my briefcase, you can see type, it says overtime at double time and the - maybe it's not printed very clearly, if I look at the second one, overtime at double time is 2.0, hours worked, overtime 28 hours, so the double time rate is $50.79 and that's double time.

PN249

Now, if you divide that by two, you'll get my hourly rate, what the hourly rate is. Now, if you multiply that hourly rate by 40 which was the hours that I was supposed to work, that bring to the figure of 52,000 and something, whatever my salary was at the time and that is the figure and that's what I was explaining to the respondent, that I've been paid for 40 hours, I do a reasonable amount of overtime, coming in early for change-overs and leaving a little bit late and even to finish my work, but what I was supposed to do was if an employee was absent or they were on training or leave, I was asked to work four hours' overtime per day and I considered four hours per day to be very excessive, without any penalty.

PN250

SENIOR DEPUTY PRESIDENT LACY: Without any payment.

PN251

MR CHAND: Without any payment, so I did ask if the employee was not coming in, if they compensated me somehow, whether it be in time in lieu or it be in payment, as I was covering for somebody else and I was doing shift work and also I was required, if I was working shift work on a night shift, starting at
11 o'clock at night and finishing at 7 o'clock, if the next quality and technical officer was not coming in at 7 o'clock in the morning, I was required to work until 11 o'clock. And I pointed out to the HR person in the meetings with the HR manager at the time that it was a health and safety issue for me because it was very difficult for me in driving home, finish night shift and then working long hours and then driving home, which was 26 kilometres away from Yarraville to Oakleigh, so if this document when I tried to tender, if it was accepted, then the whole issue about overtime would have been clarified, then this overtime issue had led into the team rules that actually discriminated me from working because in the first instance, the organisation or the respondent did make rosters for the seven days.

PN252

It does not mean that you were supposed to work for seven days, but the roster was made for seven days, starting from Sunday, finishing on Saturday and if the work happened to fall in that particular time of the shift, then that was the rule that you were entitled to - that was your entitlement to work overtime, but that overtime was taken away from me.

PN253

Now, I do have problems with that because they did make rosters for seven days and if I didn't avail myself for seven days, then I would be in problems, because the operations refinery team was working on the same sort of roster and when I did make my time available, then on a Friday, somebody would come and say, no, you can't work that overtime, I work it and to me, that was the workplace bullying at its best in that place and I made a number of attempts to get this issue sorted out with the management, as it's mentioned in the witness statement by Mr Ron Weilbrecht, I think it's mentioned annexure number 2 or something like that. The issues, if I can quickly go through that document?

PN254

SENIOR DEPUTY PRESIDENT WATSON: No, you don't need to go through issues. It's really if there's anything that's arisen from Mr McCarthy's submissions that you need to respond to and you don't need to repeat anything you've put earlier.

PN255

MR CHAND: Yes, your Honour. The only thing I wanted to say about that is that the issues that I was trying to resolve was the overtime issues was multiplied and then it further on multiplied when I came to the Industrial Relations that that had actually become the work performance issue which was not and it was not me who was writing the document, it was Mr Ron Weilbrecht and there's nothing mentioned in there about any work performance.

PN256

The issues that have been discussed in there is they did ask me what other issues you have in this place and like I had only been there when the issues started, was only about maybe four months or three months, I was saying about all the health and safety issues in that place, it is a problem there, the way we work. At one stage I was working in two laboratories at the same time, in the micro-lab where I was - then I had to come and work in the other lab.

PN257

Now, when I went to the other lab, the actual hotplate, the lid had actually fallen off and it was all fuel in there and those are the situations that we had to work on and I was only addressing the health and safety issues.

PN258

SENIOR DEPUTY PRESIDENT WATSON: I don't think you need to go into that detail. We understand what you're saying. The overtime issue was not an issue of relative performance, but you were raising a legitimate in your view grievance as to the terms and conditions.

PN259

MR CHAND: Yes, your Honour. Thank you. One more thing. The respondent is still alleging that I was refusing to sign the 12-hour shift offer. Now, I had issues with that. I asked for time. I was given one extension and in that time, the issues that existed from the memorandum of understanding, the salary was not adjusted from 40 to 42 hours. The other issues were about there was no job descriptions and from my previous employment contract which was from the 2003, March 2003.

PN260

SENIOR DEPUTY PRESIDENT WATSON: I think you've dealt with that detail. Again it's the same issue. You say that was relied on as a relative performance co-operation issue, when you say from your perspective it was simply raising in your mind legitimate issues about the contract. Thank you.

PN261

MR CHAND: Your Honour, in summary, I would just like to say that the section 170CG(3) of the Act was not complied with. There was errors in that. There was no valid reason for my termination. I was not notified of the reasons for my termination as stated in the decision, that no opportunity was afforded to me and there was no warnings given to me regarding performance or anything of that nature. Based on that, your Honour, I hope that leave to appeal shall be granted.

PN262

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Chand. Very well, we will reserve our decision in the appeal.

<ADJOURNED INDEFINITELY [12.07PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 SUBMISSIONS OF MR CHAND PN11
EXHIBIT #R1 SUBMISSIONS OF RESPONDENT PN11
EXHIBIT #A2 MEDICAL DOCUMENTATION PN40
EXHIBIT #A3 PAY SLIPS PN40